" s Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY op JUDGE DOUGLASS BOARDMAN • FIRST-PEAN OF THE SCHOOL By his Wife and Daughter A. JW. BO4RDMAIN and ELLEN D. WILLIAMS Cornell University Library KD 291.M681 I of Moak's Enaia reports jvo^^^^^^ Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017984646 DIGEST MOAK'S ENGLISH REPORTS. "Volumee X to 15, inclusive. LIST. OF CASES REPORTED, TABLE OF CASES REVERSED, OVERRULED iND CONSIDERED, JAMES SIMMONS, DIGEST OF AMEIilOAJS" IsTOTES NATHANIEL C. MOAK. ALBANY, N. T. WILLIAM GOULD & SON, PUBLISHERS. 1878. Entered, according to act of d^hagreaa, in the year eighteen hundred and seventy-eight, By WILLIAM GOULD & SON, In the office of the Librarian of Congress, at Washington. WEED, PAKS0N8 AND COHPANT, FBINTEBS AND eTEEEOTVPEES ALBANY, N. T. PREFACE The volumes digested in this work are a republication from the current series of English law reports, and from sonje non-official publications, of all the cases decided by the EngHsh courts iJelieijed to be of value in this cpuntry, commencing with the numbers fgr the year 1872. Their editor, Nathaniel C. Moak, Esq., has added greatly to.iheir value by the selection and insertion of many notes and references to treatises and cases both English and American, announcing principles of a kindred character; a digest of which, prepared by Mr. Moak, forms an important part of this volume, following immediately this digest of the reports. Upon examination of the volume, it will be perceived that the labors of the subscriber have been confined chiefly to the arrangement of the principles decided under their proper topical 'divisions and sub-divisions, prefixing catchwords and adding the usual tables of cases and index. His effort has been to make the work as convenient as possible to the profession in this country, and he has, therefore, so far as practicable, followed the plans of the most approved American digests. The original head-notes of the cases have to a very great extent been retained in the digest, with but slight if any changes. This, it is believed, will render the digest of much greater value in itself than it could have been made by the adoption of any other course. A brief account of the organization, functions and powers of the courts whose decisions are reported will be found in the preface to the fifteenth volume of the reports, giving also the changes effected by the English Judicature Acts of 1873 and 1875. To enable those wishing to examine cases to which they have citations as published in the original reports, the more readily to find them in this series of reports, the following table has been prepared, showing where each of the portions selected from the original volumes may be found : IV r PEEFAOE. Admiralty and Ecclesiastical Reports: Vol. 3, pages 500-503. Eng. Rep. ,Vol. 3, pages 154-156. a 539-533. 11 11 t( 606-610. a 534-553. u Vol. 3, u 486^98. ii. 553-615. (( Vol. 4, (L 608-646. Vol. 4, 1-33. u Vol. 5, U 546-570. U 38-100. t( Vol. 6, u 383-434. - 133-134. (I Vol. 7, u 360-371. U 161-307. i( Vol. 8, Li 640-677. Li 336-343. tl Vol. 11, a 395--409. U 369-397. " Vol. 13, a 645-670. w 380-459. 11 Vol. 14, a 668-703. Common Pleas Reports : Vol. 7, pages 35-83. Eng. Rep. , Vol. 1, pages 80-184. u 84-137. (( (1 (1 335-377. it 133-143. si. Vol. 3, (( 110-130. u 353-386. " ii. it 567-600. (( 831-373. ii tl u 648-674. • u 415-654. u Vol. 8, ii 808-421. Vol. 8, 1-184. It Vol. 4, u 382-411. U 191-357. >l Vol. 5, 4( 356-339. (1 390-595. (I Vol. 6, (( 173-287. U 596-703. l( Vol. 7, u 155-335. Vol. 9, 16-56. (t U II 130-154. 1( 57-308. t( Vol. 8, u 384-500. U 208-373. u Vol. 9, (( 393-459. u 378-703. (( Vol. 10, (( 308-371. Vol. 10 1-183. u Vol. 11, tt 306-329. (( 189-438. u Vol. 12, u 310^95. u 438-501. It Vol. 13, " 335-357. u 503-710. t( Vol. 14, u 395-536. . Common Pleas Division : Vol. 1, pages 19-86. Eng. Rep., Vol. 15, pages 203-353. Equity Cases: Vol. 13, pages 1-387. Eng. Rep., Vol. 1, i i 413-608. Vol. 14, 1-60. ' ( 85-555. Vol. 15, 1-411. Vol. 16, 1-558. a 559-643. Vol. 17, 31-831. Vol. 1, 511-786. Vol. 2, ( i 357^09. 409-433, Vol. % 654-844. Vol. 5, 673-908. Vol. 6, 604-872. Vol. 7, 580-636. (( 636-855. PREFACE. Vol. 17, pages 345-581. Eng. Rep., Vol. 9, pages 577-660. Vol. 18, " 1-386. " " " 411-539. " " " 544-700. " Vol. 19, " 1-342. " " " 358-500. " " 501-633. Vol. 20, " 1-352. " " " 378-803. " it 661-878. Vol. 10, 728-851. Vol. 11, 521-624, (( 625-873. Vol. 12, 793-860. Vol. 13, 476-565, " 566-849, Vol. 15, 379-621. Chancery Appeals Reports : Vol. 7, pages i-231. Vol. 8, Eng. Eep., Vol. 1, pages 409-510. Vol. 9, Vol. 10, " 244-475. (( Vol. 3, 258-356. " 550-811. (( Vol. 3, 499-658. " 1-337. a Vol. 4, 712-927. " 338-464. u Vol. 5, 571-672. " 467-767. u Vol. 6, 485-603. " 778-1093. u Vol. ■7, 372-580. 1^13. tt Vol. 8, 678-937, " 414-487. t( Vol. 9, 515-576. " 488-766. it Vol. 10, 545-727. " 15-168. ti Vol. 11, 410-520, " 177-417. a Vol. 12, 691-792, " 424-694. (t Vol. 14, 708-850, Chancery Division: Vol. 1, pages 9-463. Cox's Criminal cases : 1. 12, pages 1-183. 228-358. 358-446. 447-521. 530-598. 622-631. 1.13, -^ 9-29. 49-110. 126-220. 275-354. Eng. Rep., Vol. 15, pages 622-854. Eng. Rep., Vol. 2, pages 156-237. Vol. 4, 11 517-607. Vol. 5,' a 443-499. Vol. 6, a 312-346. Vol. 8, 06 v. Bather, 12 Q. B. 941. Stay in ejectment. Pollowed, Tichhome v. Mostyn, 4 Eug. 303. . Dorin v. De ios JWr, 2 E. & B. 678. Action. Approved, ^oper v. Johnson, 4 Eng. 397 ; i?Vost v. Knight, 1 id. 218. HodgTnanv. West Midland By. Co., 5 B. & S. 173. Carrier's liability. Ap- proved, Oallin V. London, etc.. By. Co., 12 Eng. 268. Hodgson v. Sidney, 1 Exch. 313. Bankruptcy a defense. Followed, Morgan V. Steble, 3 Eng. 228. Holker v. Porritt, 4 Eng. 480. Affirmed, S. C, 12 Eng. 520. Hollingsworth v. White, 6 L. T. (N. S.) 604. Fraudulent conveyance. Fol- lowed, Smale v. Burr, 4 Eng. 330. Holmes v. i7or Johnson v. Gallagher, 3 D. F. & J. 494. Separate estate. Approved, London Chartered Bank of Australia v. Lempriere, 5 Eng. 137. V. Lansley, 12 C. B. 468. Wager. Approved, Beeston v. Beeston, 15 Eng. 364. V. Liver Alkali Go., 3 Eng. 603. Affirmed, 8. C, 10 Eng. 486. Jones ^. Owt/ibertson, 1 Eng. 363. Affirmed, S.0.,7 Eng. 100. V. Foxall, 15 Beav. 388, Trust. Distinguished, Vyse v. Foster, 11 Eng. 1. V. Ogle, 8 Ch. 193. Will. Considered, Oapron v. Capron, 7 Eng. 833. Jordan v. Money, 5 H. L. C. 185. ' Representations. Approved, Citizens' Bank of La. V. First Nat. Bank of N. 0., 7 Eng. 56. Josling v. Irvine, 6 H. & N. 513. Damages. Followed, Brown v. Muller, 3 Eng. 429. Kearon v. Pearson, 7 H. & N. 386. Charter-party, Explained, Ashcroft v. Crow Orchard Colliery Co., 10 Eng. 167. Keene v. Beard, 8 C. B. (N. S.) 372. Assignment. Discussed, Hopkinson v. Forster, 11 Eng. 685. Kelk V. Pearson, 6 Ch. 809. Light. Approved, City of London Brewery Co. V. Tennant, 8 Eng. 837. KeOoek v. Enihoven, 7 Eng. 73. Affirmed, & C, 8 Eng. 324. jBTeKj^ V. Sherlock, 1 Q. B. 697. New trial. Approved, Falvey v. Stanford, 11 Eng. 146. 5'en< V. Astley, 5 Q. B. 19. Factory. Followed, Redgrave v. ie«, 9 Eng. 335. Key V. JTey, 4 D. M. & G. 73. Jurisdiction. Considered, Pryse v. Pryse, 5 Eng. 780. Kiherfs Trust, 12 Bq. 183. Reversed, S. 0.,1 Eng. 499. iira^ V. Cleavela/nd, 4 De G. & J . 477. Legacy. Followed, Burt v. Hellyar, 3 Eng. 690. V. Hoaire, 13 M. & W. 494. Judgment against joint wrong-doer. Fol- lowed, Brinsmead v. Harrison, 3 Eng. 383. Ki/rchn,&r v. F«?im«, 12 Moore's P. C. 361. Freight. Explained, AlUson v. Bristol Ma/r. Ins. Co., 15 Eng. 82. Kirkwood v. Thompson, 2 H. & M. 393. Mortgage. Followed, Locking v. Pa/rk&r, 4 Eng. 736. D xxvi CASES CRITICISED. Snowies v. Eoraefall, 5 Barn. & Aid. 135. Beputed ownership. Considered. Mc parte Watkins, G Eng. i66. Knowknan v. Bluett, 7 Eng. 287. Affirmed, 8. G., 10 Eng. 466. Kreuger v. Blanch, 5 Exch. 179. Principal and agent. Distinguislied, Ireland, V. Livingston, 2 Eng. 424. Zambe v. Eames, 6 Ch. 597. Legacy. Followed, -Mackett v. Mackett, 3 Eng. 413. Distinguished, Le Marchant v. Le Marahant, 10 Eng. 736. Lancefleld v. Igguld,en, 9 Eng. 653. Costs. Reversed, S. C , 11 Eng. 492. Dis- approved, Jackson v. Pease, 11 Eng. 700. Land Credit Go. v. Fermoy, 5 Ch. 768. Notice. Distinguished, Ashurst v. Mason, 13 Eng. 745. Langley v. Ham,mond, 3 Exch. 161. Right of way. Discussed, Kay v. Oxley, 13 Eng. 296. Lawrence v. Gampbell, 4 Drew, 485. Discovery. Approved, JfmeS v. Morgan, 5 Eng. 485. i/ea V. Whitaker, 3 C. P. 70. Liquidated damages. Discussed, Magee v. LameU, 8 Eng. 433. Leake v. Leake, 10 Ves. 477. Advancement. Distinguished, Gooper v. Cooper, 7 Eng. 391. Xear v. Edmonds, 1 B. & A. 157. Distress. Distinguished, Lehain v. Phiipott, 13 Eng. 371. Lee -v. Olding, 25 L. J. (IJI. S.) 580. Appointment. Followed, Be Serre v. CTarA;e, 11 Eng. 554. Lee V. Pain, 4 Hare, 201. Will, substitution of. Distinguished, Wilson v. O'Leary, 2 Eng. 342. Lee V. ij87«,v, 18 C. B. (N. S.) 724. Trespass. Approved, Ellis v. Loftus Iron Go., 11 Eng. 316. Leeke's Case, 6 Ch. 469. Contribution. Considered, Brown's Case, 8 Eng. 763. Leigh v. Sind, 9 B. & C. 774. Measurement of distance. Followed, Mouflet V. Cole, 1 Eng. 177. V. Leigh, 17 Beav. 605. Will. Disapproved, Spencer v. Wilson, 6 Eng. 880. Lemage v. Goodhue 1 P. & M. 57. Will. Approved, In re Goods of PetcheU, 8 Eng. 631. Lewes Trusts, In re, 6 Ch. 356. Presumption of death. Followed, Hickman V. i7p«aitf, 13 Eng. 672. i/. )K-^^fr~' Lewis V. Hayward, 35 L. J. (N. S.).105. Divorce. Approved, Guno v. Guno, 6 Eng. 73. LUey V. Hey, 1 Hare, 580. Charitable devise. Considered. GUlam v. Taylor, 7 Eng. 595. Lingard v. Messiter, 1 B. & C. 308. Beputed ownership. Followed, Ex parte Lowering, 10 Eng. 626. lAngham v. Biggs, 1 B. & P. 82. Reputed ownership. Followed, Ex parte' Lovering, 10 Eng. 636. CASES CEITICISED. xxvii JJ/oer Alkali Co. v. Johnson, 7 Exch. 367. Carrier. Distinguished, Scaife v. Fa/rrant, 14 Exch. 611. LlaneUy Ry., etc., Go. v. London, etc., By. Go., 7 Bng. 493. Affirmed, S. C, 13 Eag. 73. Lloyd V. Lloyd, 3 Eq. 723. Legacy. Distinguished, In re ParnTmrn's Trusts, 3 Eng. 357. V. Pughe, 3 Eng. 715. Reversed, S. G., 4 Eng. 775. Loaldibo, The, 7 Moore's P. C. C. 430. Pilot's liability. Approved, Wood v. Smith, 9 Bng. 356. Loffus V. Maw, 3 Giif. 592. Statute of frauds. Approved, Goles v. Pilkington, 11 Eng. 768. London, The, Br. & L. 82. Costs in admiralty. Followed, Tlie Marpesia, 3 Eng. 92. London, etc., Discount Go. v. Drake, 6 C. -B. (N. S.) 798. Fixtures, right to. Followed, Stift* V. Piiiey, 13 Ejttg. 57J. .^— — ~~-- London & N. W. Ry. Go. v. Glyn,Z6 h. J. (Q. B.) 188. Insurance. Followed, ,. North British & Mere. Ins. Go. v. Moffatt, 1 Eng. 80. Longbottom v. Berry, 5 Q. B. 138. Fixtures. Followed, Holland v. Hodgson, 2 Eng. 655. Lopez V. Thakoor, 13 Moore's Ind. App. 467. Alluvion. Approved, Singh v. Khan, 11 Eng. 113. Love V. Oaze, 8 Beav. 473. Will. Considered, Williams v. Arkle, 14 Eng. 1. Lowndes Y. Betile, 15 Eq. 389. Injunction. Approved, 5to?i/o7'd -v.Hurlstone, 8 Eng. 775. Lucena v. Granford, 3 B. & P. (N. R.) 369. Insurance. Approved, Anderson V. Moriee, 14 Eng. 455. lALcy V. Mouflet, 5 H. & N. 233. Eejectiou of goods bought. Followed, Orimoldsby v. WeS«, 13 Eng. 451. Lumley v. Wagner, 1 D. M. & Gr. 604. Contract. Considered, Montague v. Flockton, 6 Eng. 704; TPofeer^osmpJon, 6*c., iJy. Go. v. London & N. W. Ry. Go., id. 793. Imndy Granite Go., In re, 6 Ch. 463. Distress. Discussed, In re Traders, etc., Carrying Go., 11 Eng. 673. Lyons v. Mells, 5 East, 439. Carrier's contract. Approved, Stanton v. Rich- a/rdson, 3 Eng. 314. Macredie, Ex parte, 8 Ch. 535. Proving claim. Doubted, In re London, etc.. Bank, 10 Eng. 668. McCarthy v. Metropolitan Board of Works, 5 Eng. 356. Affirmed, S. C, 10 Eng. 1. MeCormick v. Grogan, 4 H. L. 83. Trust. Followed, Worris v. Frazer 5 Eng. 864. McDonald v. McDonald, 1 Scotch R. (4th S.) 794. Reversed, 8. G, 13 Eng. 154. MaBouall v. iorci Adjtocate, 2 Scotch R. (3d S.) 688. Affirmed, S. G., 13 Eng. 124. xxviii CASES CRITICISED. McDougaU v. Ga/rdiner, 15 Eng. 388. Reversed, 8. (J., 15 Eng. 634. Mcintosh V. Great Western By. Co., 4 Giff. 683. Interest. Considered, MUl v. Great Western By. Co., 9 Eng. 704. Maddison v. Pye, 33 Beav. 658. Application to pay debts. Questioned, 8aott V. Cumberland, 11 Eng. 546. Malioney v. Sast Holy ford Mining Co., Irish L. R., 7 C. L. 169. Reversed and 5 id. affirmed, B. C, 14 Eng. 337. MaUn-v. TTaiMresore, 6 Exch. 35. Covenant to repair. Ky^vo^eA, London, etc.. By. Co. v. Flower, 15 Eng. 243. Mandeville's case, Co. Litt. 36 b. Will. Followed, Allgood v. Blake, 3 Eng. 436. Manning v. Farquharson, 30 L. J. (Q. B.) 33. Prohibition. Overruled, Jacobs V. 5r««, 13 Eng. 566. Mare v. Sandford, ,1 GifE. 288. Preferences. Approved, McKewan v. Sander- son, 13 Eng. 611. Marino's ease, 2 Ch. 596. Transfer of shares. Considered, Ex parte Sargent, 7 Eng. 813. Marpesia, The, 4 P. C. 313. Burden of proof. Followed, The Benmore, 7 Eng. 368. Marshall v. Sladden, 7 Hai-e, 428. Attorney. Considered, Baker v. Loader. 6 Eng. 634. Marson v. London, etc.. By. Co., 6 Eq. 101. Purchase by railroad company. Explained, Grierson v. Cheshire Lines Committee, 11 Eng. 691. Mason v. fii'K, 5 B. & Ad. 1. Water-course. Approved, Holker v. Forriti, 13 Eng. 520. Mather v. Fraser, 3 K. & J. 536. Fixtures. Followed, Holland v. Hodgson, 3 Eng. 655. Mathew v. Brise, 14 Beav. 341. Guardian's liability. Approved, Sleeman v. TF(&ora, 1 Eng. 538. Matthews v. Matthews, 1 Sw. & Tr. 499 ; 39 L. J. (P. M. & A.) 118. Divorce. Distinguished, Green v. Green, 7 Eng. 353. Mamo V. Ocean Mar. Ins. Co., 10 Eng. 325. Affirmed, S. C, 12 Eng. 473. Maxted v. Paine, 4 Exch. 81. Broker's liability. Approved, Merry v. NickaMs, 3 Eng. 600 ; S. C, 13 id. 55. Followed, 27 L. T. (N. S.) 12. Maxted v. Paine, 4 Exch. 203. Broker's liability. Discussed, Merry v. NickaMs, 3 Eng. 600 ; & C, 13 id. 55 ; 37 L. T. (N. S.) 13. Maxwell's Will, In re, 34 Beav. 346. Will. Followed, Pennock v. Pennock, 1 Eng. 636. Mayor of London v. Cox, 2 H. L. 239. Jurisdiction. Followed, Cooke v. Gill, 4 Eng. 354. Mayor of Lyons v. East India Co., 1 Moore's P. C. 175. Statutes. Approved, Neo V. JSfeo, 13 Eng. 207. Mayor of York v. Pilkington, 2 Atk. 303. Injunction. Distinguished, SauM V. Browne, 11 Eng. 434. CASES CRITICISED. xxix I V. Gray, 9 C. P. 216. Discharge of principal. Followed, Ex pa/rte Jacobs, 13 Eng. 707. Merritt, In Goods of, 1 Sw. & Tr. 112. Will, revocation. Distinguished, In goods of Mistace, 10 Eng. 533. Mersey Docks v. CKbbs, 1 H. L. 93. Negligence. Approved, Winch v. Oon- servators of Thames, 3 Eng. 344 ; 10 id. 313. Metcalfe v. London, etc.. By. Co., 4 C. B. (N. S.) 307. Evidence. Approved, Vaughton v. London, etc.. By. Co., 8 Eng. 585. Metham v. Duke of Devon, 1 P. Wms. 539. Legacy to illegitimate child. Discussed, Occlesion v. MiUalove, 8 Eng. 788. MUd/may v. Metfmen, 3 Drew, 91. Interest. Considered, Sill v. So. Staffordshire By. Co., 9 Eng. 704. MUl V. Hawker, 10 Eng. 468. Affirmed, S. C, 13 Eng. 538. Millechamp v. Johnson, Willes, 305, n. Basement. Distinguished, Sail v. Nottingham, 15 Eng. 354. MiUer v. Learmonth. 10 Scotch R. (3d. S.) 107. Affirmed, S. C, 13 Eng. 131. Milroy v. Lord, 4 D. P. & J. 364. Gift. Approved, Wa/rriner v. Bogers, 6 Eng. 783. Followed, Bichards v. Delbridge, 9 Eng. 669. Minet v. Morgan, 8 Ch. 366. Witness, privilege. Followed, Turton v. Barber, 7 Eng. 853. Mitchell V. Moorman, 1 Y. & J. 31. Payment. Followed, Mitchell v. Holmes, 4 Eng. 490. V. Beynolds, 1 P. Wms. 181. Consideration. Followed, Ora/oely v. Barn- ard, 10 Eng. 833. Moniefiore v. Ouedella, 1 D. F. & J. 93. Ademption of legacy. Distinguished, Meinertsagen v. Walters, 3 Eng. 563. Mordaunt v. Moncreiffe, 2 Prob. & Mat. 109. Reversed, S. C, 10 Eng. 57. Morgan Y. Griffith, 6 Exch. 70. Statute of frauds. Followed, AngellY. Duke, 13 Eng. 336. V. Hunt, 3 Vent. 313. Covenant for quiet enjoyment. •Followed, Den- nett V. Atherton, -S Eng. 77. V. Lariviere, 3 Eng. 499. Reversed, S. C, 13 Eng. 53. ■ V. Malleson, 10 Eq. 475. Declaration of trust. Considered, Warriner V. Bogers, 6 Eng. 783. Disapproved, Bichards v. Delbridge, 9 Eng. Morrice v. Aylmer, 11 Eng. 503. Affirmed, S. C, 14 Eng. 103. Morris v. Livie, 1 Y. & C. Ch. 380. Priority. Not followed, British Mut. Invest. Co. v. Smart, 14 Eng. 793. Morrison v. Glover, 4 Exch. 430. Arbitration. Followed, Prentice v. London, 14 Eng. 511. V. Universal Mar. Ins. Co., 4 Eng. 433. Reversed^ 8. C, 5 Eng. 383. Mors Le Blanch v. Wilson, 8 C. P. 337. Damages. Disapproved, Baxendale V.London, etc., Bailway Co., 13 Eng. 496. Morwan v. Thompson, 3 Hag. Ec. 339. Will. Questioned, WiUock v. Noble, 13 Eng. 100. XXX CASES ORITIOISBD. Mouflet v. Dole, 1 Eng. 177. Affinned, 8. C, 4 Eng. 439. MountstepJien v. Lakeman, 1 Eng. 68. AflBrmed, 8. G., 9 Eng. 5. Mozley v. Alston, 1 Ph. 790. Action by share^iolders. Followed, McDougaU V. Qa/rdiner, 15 Eng. 634. Approved, Sussell v. Wakefield, 15 Eng. 448. Muller V. 0-ernon, 3 Taunt. 272. Stay in ejectment. Distinguished, TUKborne V. Moatyn, 4 Eng. 302. Munns v. Isle of Wight By. Co., 5 Ch. 414. Injunction. Followed, Lyeett v. Stafford & U. By. Co., 1 Eng. 670. Murray v. Bush, 6 Chan. App, 346. Affirmed, 8. 0., 5 Eng. 1. Nanson v. Gordcn, 11 Eng. 513. Affirmed, 8. 0., 15 Eng. 70. Nelson v. Comh, 15 C. B. (N. S.) 99 ; 33 L. J. (C. P.) 46. Former adjudica- tion. Distinguished, (?i6S« V. CrMifesAaraA, 6 Eng. 311. Nesliam v. 8elby, 1 Eng. 640. Affirmed, 8. 0., 2 Eng. 313. Newby v. Fon Oppen, 7 Q. B. 293. Service of process. Distinguished, Mackereth v. Glasgow & 8. W. By. Go., 5 Eng. 342. Newill V. Nemll, 13 Eq. 432. Reversed, 8. G., 2 Eng. 269. Nemngton v. Levy, 6 C. P. 180. Estoppel. Distinguished, Hall v. Levy, 11 Eng. 312. Nicholsons. Bicketts,2 E. &B. 536. Partnership. Followed, In re Adari- sonia Fibre Co., 10 Eng. 684. Nioh V. 8pottiswoode, Wood's Or. C. Statutes. Approved. Neo v. Neo, 13 Eng. 307. Noble V. Phelps, 3 Prob. & Div. 376. Will. Considered, Noble v. W'Ulock, 7 Eng. 373. Noble V. Willock, 7 Eng. 373. Affirmed, 8. C, 13 Eng. 100. North Eastern By. Go. v. Wanless, 6 Q. B. 481. Affirmed, 8. C, 9 Eng. 1. North Western By. Go. v. Whinray, 10 Bxch. 77. Surety, when discharged. Followed, Sanderson v. Aston, 4 Eng. 453 . Norway, The, S.Moore's P. C. 345. Lump freight. Followed, Bobinson v. Knights, 6 Eng. 330. Approved, Merchants' Sliippi^g Co. v. Armitage, 8 Eng. 383. Nunn V. Fabian, 1 Ch. 35. Specific performance. Approved, Williams v. Moans, 13 Eng. 490. ■ • Nuttall\. Br acewell, 2 Exch. 1. Water-course. Fdllo-wed, Solker y. Poritt, 4 Eng. 480. Oakeley v. Pasheller, 4 CI. & F. 207. Discharge of surety. Followed, Wilson V. Lloyd, 6 Eng. 642. Oakes v. Oakes, 9 Hare, 666. Bequest of shares. Overruled. MorriceY. Aylmer, 11 Eng. 503 ; 14 id. 103. Oecleston v. Fullalove, 9 Ch. 147 ; 8 Eng. 788 . Bequest to illegitimate children. Followed, In re Qoodmn'a Trusts, 9 Eng. 577. Distinguished, In re Ayles' Trusts, 15 Eng. 741. O'Connell v. Begina, 11 CI. & Fin. 250. Trial. Disapproved. Begina v. Tieh- borne, 9 Eng. 333. CASES CRITICISED. xxxi Ogle V. Lord Vane, 3 Q. B 375 ; 3 id. 373. Damages. Distinguished, Ex parte Llansamlet Tin Plate Co., 6 Bng. 689. Discussed, Tyers v. Moaedale, etc., Iron Co., 7 Eng. 373. Ogg V. Shuter, 11 Eng. 316. Reversed, S. C, 15 Eng. 331. Olivant v. Wright, 13 Eng. 741. Reversed, -S. C, 15 Eng. 779. O'Mahony v. Burdett, 10 Irish Ch. (N. S.) 14. Gift over. Affirmed, 8. 0., 13 Eng. 23. Followed, Ingram v. Soutten, 13 Eng. 40 ; Olivant v. Wright, 13 Eng. 741. Distinguished, id.. 15 Eng. 779 Onslow V. Michell, 18 Ves. 490. Advancement. Distinguished, Cooper v. Cooper, 7 Eng. 391. Orgill's case, 31 L.^ (N. S.) ^31. Contribution. Disapproved, Canadian Oil " Woi-ks Co., In re, 14 Bng. 809. Oi-iental Fin. Corp. v. Overend, Qumey & Co.,1 Eng. 478. Affirmod, 8. 0., 11 Bng. 37. Osborn v. Morgan, 9 Hare, 433. Wife's equity. Followed, Knight v. Knight, 10 Bng. 803. Owen V. Soman, 3 Mac. & G. 378. Discharge of surety. Considered, Oriental Mn. Corp. v. Overend, Ourney <& Co., 1 Eng. 478. Palmer v. Plower, 13 Eq. 350 ; 1 Bng. 664. Power. Distinguished, In re Ward's Trusts, 3 Bng. 597. Pappa V. Pose, 1 Eng. 87. Affirmed, 8. C, 3 Bug. 375. Parker v. Taswell, 3 De ff. & J. 559. Void lease. Approved, Martin v. Smith, 8 Eng. 501. Parnaby v. Lancaster Coal Co., 11 A. & E. 323. Negligence. Approved, Winch V. Conservators of the Tliamies, 10 Bng. 212. Parrott v. Worsjield, 1 Jac. & W. 594. Specific legacy. Considered, Bothamley V. 8herson, 13 Eng. 814. Parry v. Nicholson, 13 M. & W. 778. Alteration, effect of. Discussed, Hirsch- man v. Budd, 5 Eng. 361. PauU V. Simpson, 9 Q. B. 865. Executor de son tort. Approved, Williams v. ifsato, 8 Eng. 4'a3. . , Pawsey v. Barnes, 20 L. J. Ch. 393. Trustees. Distinguished, Mutlow v. Sig'g' 9 Eng. 784. Pearse v. Pearse, 1 De G. & Sm. 13. Discovery. Approved, Minet v. Morgan, 5 Eng. 590. Pearson v. Commercial Union Ass. Co., 15 C. B. 304. Affirmed, 8. C.,6 Eng^ 348. V. Graham, 6 A. & E. 899. Burden of proof. Followed, Kx parte Schulte, 8 Bng. 933. V. Pearson, 1 Sch. & Lef. 10. Will. Distinguished, Turner v. Buck, 9 Bng. 816. Pedder's Settlement Trusts, In re, 10 Eq. 585. Covenants. Followed, In re Clinton's Trusts, 1 Bng. 691. Pederson v. Lotinga, 5 W. R. 390. Charter-party. Followed, Ohnstofferson v. Hansen, 3 Eng. 639. xxxii CASES CKITICISED. Peek V. Ourney, 1 Eng. 567. Affirmed, S. C, 8 Eng. 1. Pegge v. Guardians of Lampeter Union, 2 Eng. 668. Beversed, 8. 0., 10 Bng. 308. Pell's case, 5 Ch. 11. Allotment of shares. Considered, Denfs case, 5 Eng. 905. Phene's Trusts, In re, 5 Ch. 139. Presumption of death. Followed, Hichman V. Upsall,lZ Eng. 673. PUllips V. Foxall, 7 Q. B. 666 ; 3 Bng. 359. Surety, when discharged. Fol- lowed, Sanderson v. Aston, 4 Eng. 453. V. Miller, 8 Eng. 490. Reversed, 8. G., 13 Eng. 479. Phipson V. Turner, 9 Sim. 337. Appointment. Followed, 8lark v. Dakyra, 5 Eng. 857 ; 11 id. 438. ^? -^ ■ Pieken v. Picken, 34 L. 3. 23. Divorce. Followed, Qower v. Qower, 4 Eng. 657. '^ Pigott, In re, 3 Mac. & G. 268. Stop order. Overruled, In re Wilkinson, 11 Eng. 441. Pilcher v. Rawlins, 11 Bq. 53. Reversed, 8. G., 2 Eng. 275. Pilling v. Pilling, 3 D. J. & S. 162. Accounting. Criticised, Barfield v. Lough- horough, 4 Eng. 712. Porter v. Fry, 1 Vent. 199. Conditional legacy. Approved, Astley v. Earl of Essex, 9 Eng. 809. Potter's Trusts, In re, 8 Eq. 52. Legacy. Followed, Adams v. Adams, 3 Eng. 720. Distinguished, Hunter v. OhesMre, 6 Eng. 592. Potter V. Metropolitan Dist. My. Co., 30 L. T. (N. S.) 765. Accident causing death. Followed, Bradshaw v. Lancashire, etc. , By. Co., 13 Bug. 310. Poulton V. London & 8. W. Ry. Go., 2 Q. B. 534. Master's liability for ser- vant's tort. Distinguished, Moore v. Metropolitan By. Go., 4 Eng. 203. Powles V. Rider, 6 E. & B. 207. Master and servant. Considered, Fowler v. Lock, 3 Eng. 587. Praeger v. Bristol & Exeter By. Go., 24 L. T. (N. S.) 105. Negligence. Fol- lowed, Gockle V. London & 8. E. By. .Co., 3 Eng. 648. Pratt V. Matthew, 22 Beav. 338. Legacy to illegitimate child. Discussed, Ocdeston v. Fullalove, 8 Bng. 788. Pretty v. Bickmore, 8 C. P. 401 ; 6 Bng. 182. ' Negligence. Followed, Qwin- nell V. Eamer, 14 Bng. 493r Priestly v. Fernie, 3 H. & C. 977. Election of debtor. Distinguished, Gurtis V. Williamson, 11 Bng. 149. V. Pratt, 3 Bxch. 101. Reputed ownership. Approved, Ex parte Watkins, 6 Eng. 466. Prismall v. Lovegrove, 6 L. T. (N. S.) 339. Reputed ownership. Criticised, Ex parte Watkins, 6 Bng. 466. Pulsford V. Hunter, 3 Bro. C. C. 416. Legacy. Disapproved, Fox v. Fox, 11 Eng. 836. Punchard, In re Goods of, 3 P. & M. 369. Executor. Approved, In re Goods of Lowry, 8 Eng. 635. CASES OEITIOISED. xxxiii Pye, Ex parte, 18 Ves. 140. Gift. Approved, Warriner v. Rogers, 6 Eng. 783. Radford v. Willis, 12 Eq. 105. Reversed, 8. 0., 1 Eng. 415. JRadley v. London & N. W. By. Co., 8 Eng. 516. EeversegL, 8. 0., 13 Eng. 544. Banger v. Qreat W. By. Co., 5 H. L. 86. Liability of corporation for fraud of agent. Approved, Mackay v. Com. Bank of Mew Brunswiek, 9 Eng. 303. Bankin v. Potter, 3 C. P. 563 ; 5 id. 341. Insurance. Reversed, 8.0. ,5 Eng. 40. Bashdall v. Ford, 3 Eq. C. 750. Misrepresentations. Approved, Beattie v. Lord Mury, 3 Eng. 635. Bawson v. 8amuel, 1 C. & P. 161. Set off. ' Followed. Best v. Hill, 4 Eng. 390. Bayner v. Koehler, 3 Eng. 733. Executor de son tort. Disapproved, Cary V. Hills, 5 Eng. 737 ; Bowsell v. Morris, 7 id. 646. Adhered to, Coote v. Whittington, 6 Eng. 854. Beade v. Conquest, 11 C. B. {N. S.) 479. Copyright. Distinguished, TdoZe v. Young, 10 Eng. 153. BeadTiead v. Midland By. Co.,^ Q. B. 379. Negligence. Distinguished, 8earle v. LoAierick, 8 Eng. 398. Begina v. Bennett, 4 Fos. & Fin. 1105. Assault. Followed, Begina v. Sinclair, 11 Eng. 385. V. Bolton, 1 Q. B. 66. Jurisdiction. Followed, Colonial Bank v. TTiZZasTi, 9 Eng. 335. V. Brawn, 1 C. & K. 144. Bigamy. Followed, Begina v. Allen, 3 Eng. 243. V. Cbc^ro/iS, 11 Cox's C. C. 410. Evidence in rape. Followed, iJe^jrea v. Holmes, 1 Eng. 336. V. Cotton, 13 Cox's C. C. 400 ; 5 Eng. 479. Evidence. Followed, Begina V. Boden, 10 Eng. 511. : — V. Wanning, 10 Cox's C. C. 411. Bigamy. Disapproved, Begina v. Allen, 3 Eng. 343. v. Fa/rrell, 13 Cox's C. C. 605. Evidence. Followed, Begina v. Thomp- son, 14 Eng. 635. " V. Fletcher, Bell's C. C. 63 ; 38 L. J. (M. C.) 85. Rape. Approved, Begins v. Barratt, 7 Eng. 330. — V. G«en?i^, 18 L. J. (M. C.) 215. Evidence. Followedi., Begina -v. Cotton, 5 Eng. 479. V. Guthrie, 39 L. J. (M. C.) 95. Conviction of less offense. Distinguished, Begina v. Caihe/raM, 13 Eng. 455. V. Sic/fcfo'w, 3 Q. B. 360. Obscene publication. ¥oXio'weA, Steele Y.Br an- nan, 3 Eng. 575. — V. Horton, 11 Cox's C. 0. 145, 670. Bigamy. Overruled, Begina v. GKb- bons, 4 Eng. 537. — V. Justices, 10 Q. B. 166. Jurisdiction. Affirmed, 8. C, 14 Eng. 379. — V. OUfier, 10 Cox's 0. C. 403. Abduction. Followed, Begina v. Mycoak. a Eng. 177. B xxxiv CASES GKITICISED. Begina v. Pa/rher, 7 C. & P. 829. False pretense. Followed, Hegina v. Eazle- ton, 11 Eng. 350. V. Seott, 1 Dears. & B. C. C. 47; 7 Cox's C. C. 164. Examination of bankrupt, when evidence. Approved, Begina v. SiUam, 2 Eng. 337. Fol- lowed, Begina v. Widdop, 4 Eng. 507. V. Shropshire, etc., Co., 6 Eng. 147. Reversed, 8. C, 13 Eng. 20. v. Thurborn, 3 Cox's C. C. *453. Larceny. Followed, Begina v. Mat- thews, 6 Eng. 339. Beilly V. Jones, 1 Bing. 302. Liquidated damages. Followed, Lea v. Whita- ker, 4 Eng. 335. Discussed, Magee v. Lamll, 8 Eng. 423. Bemmett v. Lawrence, 30 L. J. (Q. B.) 25. Action for false return. Held oiiter, Stimson V. Farnham, 1 Eng. 60. Bennie v. Morris, 13 Eq. 303 ; 1 Eng. 651. Broker's Uability. Disapproved, Merry v. Nickalls, 3 Eng- 600 ; Niekalls v Merry, 13 id. 55. ijea; v. ^i2«n, 3 E. & E. 338. Habeas corpus. Distinguished, Begina v. Mount, 13 Eng. 181. . _ V. CarlUe, 3 B. & A. 107. Obscene publication. Followed, Steele v. Brannan, 2 Eng. 575. V. Hodgson, 1 R. & R. 311. Evidence. Followed, Begina v. Holmes, 1 Eng. 236. V. Kerrison, 3 M. & S. 536. Unsafe crossing. Followed. Oliver v. Morfh^eastern By. Go., 9 Eng. 351. V. Mitchell, 10 Bast, 511. Voter. Distinguished. Vord v. Hart, 9 Eng. 400. V. Newton, 3 Mood. & Rob. 503. Proof of marriage. Overruled, Begina v. Savage, 14 Eng. 633. V. Bussell, 6 B. & C. 566. Obstruction of river. Disapproved, Attorney- General V. Terry, 9 Eng. 523. Bichards v. Broicne, 3 Bing. N. C. 493. Defense. Approved, Mummery, 4 Eng. 325. Bichardsonv. Barry.S'Ba.gg. Eccl. 249. Will, revocation of. Followed, /?i Goods of Eustace, 10 Eng. 532. V. Bichardson, 3 Eq. 686. Declaration of trust. Distinguished, War- rinerY. Bogers, 6 Eng. 782. Disapproved, Bichards v. Delbridge,Q Eng. 669. ■ v. Williamson, 6 Q. B. 376. Misrepresentation. Distinguished, Beattie. V. Lord Bbury, 3 Eng. 625. Bichet V. Metropolitan By. Go., 3 H. L. 175. Compensation. Explained and approved, Metropolitan Board of Works v. McCarthy, 10 Eng. 1 ; 5 id. 356. Discussed, Bigg v. Corporation of London, 5 Eng. 887. Bighy v. Great Western By. Co., 10 Jur. 488 ; 4 Ry. C. 175, 183. Covenant. Followed, Phillips v. Great Western By. Co., 2 Eng. 316. Boberts v. Crowe, 7 C. P. 639. Indemnity. Followed, Kellock v. Enthoven, 7 Eng. 73. Boberts v. Walker, 1 Russ. & My. 753. Charge on. real and personal estate Followed, Allan v. Gott, 2 Eng. 333. CASES OEITIOISED. xxxv Bobmson v. Chartered Bank, 1 Eq. 33. Admission as stockholder. Distin- guished, Gfresham Life Assurance So., Matter of, 5 Eug. 658. Y.'Gfreat Western By. Co., 35 L. J. (C. P.) 133. Carriers' liability. Fol- lowed, B'Arc V. London <& iV. W. By. Co., 9 Bug. 417. V. Knights, 8 C. P. 465 ; 6 Eng. 230. Freight. Approved, Merchants' Shipping Co. v. Armitage, 8 Eng. 383. V. MoUett, 1 Eng. 335. Reversed, 8. C, 14 Eng. 177. • V. Walter, 8 Buls. 269. Innkeeper's lien. Followed, Threlfall v. Bar- wick, 3 Eng. 689. Bobson V. Eaton, 1 Term, 63. Stay. Followed, Beynoldsr. Mowell, 6 Eng. 139. Bodgel- v. Oomptoi/r WEscompte de Paris, 3 P. C. 393. Transfer of bill of lad- ing. Distinguished, Cha/rtered Bank of India, etc., v. Henderson, 9 Eng. 375. Bodoconachi v. Elliott, 7 Eng. 300. Affirmed, B. C, 10 Eng. 388. BoUins V. Rinks, 13 Eq. 355; 1 Eng. 716. Injunction. Followed, Axmann v, Lund, 9 Eng. 841. Bose V. Oroves, 5 Man. & Gf. 613. Riparian rights. Distinguished, Lyons v. Fishmongers' Co., 14 Eng. 837. Bossy. Jfo««, Cro. Eliz. 560. Consideration. Doubted, Harris v. YenaI)les,Z , Eng. 143. Bylands v. Fletcher, 3 H. L. 330. Mining. Approved, Crompton v. Lea, 11 Eng. 719. Distinguished, Nichols v. Marsland, 14 Eng. 538. SaUmarsh v. Barrett, 39 Beav. 474. Construction of will. Considered, Williams V. Arkle, 14 Eng. 1. Samin v. Hoylake By. Co., 1 Exch. 9. Gratuitous services. Distinguished, Bhau^s case, 13 Eng. 691. Schiisby v. Westenhols, 6 Q. B. 155. Jurisdiction. Distinguished, Copin v. Adamson, 10 Eng. 493. Schuster v. McKellar, 7 E. & B. 704. Bill of lading. Distinguished, Hathes- ing V. Laing, 7 Eng. 705. Beott V. Dixon, 29 L. J. Exch. 63. Fraudulent representations. Explained, Peek V. Gurney, 8 Eng. 1 . 8ecreta/ry of State for India, etc.,Y. Sahdba,7 Mooie's Ind. App. 476. Jurisdic- tion. Followed, Single v. Secretary of State for India, 11 Eng. 118. Seixo V. Provezende, 1 Ch. 193. Trade-mark. Discussed, Cope v. Evans, 9 Eng. 689. Seymour v. BagsTuiw, 18 C. B. 903. Fraudulent representations. Overruled, P66^ V. Ourney, 8 Eng. 1. Bhafto V. Johnson, 8 B. & S. 363. Mining, surface support. Approved, Eadon V. Jefcock, 3 Eng. 458. Sharpies v. Adams, 33 Beav. 313. Priority. Considered, Maxjield v. Burton, 7 Eng. 643. Bhattock v. Shattock, 3 Eq. 183. Separate estate. Disapproved, London Chair- tered Bank of Australasia v. Lempriere, 5 Eng. 137. xxxyi OASES CKITICISED. Shaw V. Ooffln, 14 C. B. (N. S.) 372. Condition. Followed, Crowley y. Price, 13 Eng. 248. BhepJierd v. Keatley, 1 C. M. & R. 117. Stipulation as to title. Bollpwed, Waddell v. Wolfe, 10 Bug. 145; Ha/rtnett v. 5ai*6?-, 13 id. 598. SheppharWs Touchstone, vol. 1, p. 58. Escrow. Explained, Watkiris v. iVaisA, 13 Eng. 781. Shirt V. Tr6s%, 16 Vea. 393. "Will. Distinguished, Turner v. 5«§^, 9 Eng. 816. Simmons v. &«i/i5, 5 B. & C. 857. Title, when passes. Distinguished, Mar- tineau v. Kitching, 2 Eng. 539. Simpson v. Blues, 11 C. P. 290. Jurisdiction. Disapproved, Cargo ex ArQos, 8 Eng. 103. ! V. /Socaasg'e, 1 0. B. (N. S.*) 347. Injunction. 'PoMowei, Jones y. Chappell, 15 Eng. 475. (Sfrae?' V. Qreat Western Ry. Co., 4 Bxch. 117. Negligence. Distinguished, Cockle Y. London & B. E. By. Co., 2 Eng. 648. Sinnett v. Herbert, 7 Chan. App. 332. Will. Followed, Chamierlayne v. i?7-06fte«, 4 Eng. 849.' SlarTc v. Bahyns, 5 Eng. 857. Affirmed, S. C, 11 Eng. 428. 'Slater v. Jones, 5 Eng.^373. Composition. Discussed, Newall v. Fara Praagh, 8 Eng. 415. V. Finder, 9 Eq. 51. Bankruptcy. Considered, .Eb parie Villars, 9 Eng. 531. SmaH, Ex parte, 4 Eng. 855 ; 8 Ch. 220. Lien. Distinguished, Vaughan v. Halliday, 10 Eng. 590. Smith Y. Fletcher, 9 Exch. 64. Mining. Approved, Crompton v. Lea, 11 Eng. 719. V. , 3 Eng. 422. Reversed, S. C, 8 Eng. 510. V. Bobertson, 3 Dow. 474. Abandonment. Followed, Provincial Ins. Co. Y. Leduc, 11 Eng. 84. V. Thome, 18 Q. B. 134. New promise. Approved, Chasemore v. furner, 14 Eng. 304. V. Union Bank, 13 Eng. 338. Affirmed, S. C, 15 Eng. 166. Sneesby v. Lancashire, etc., By. Co., 8 Eng. 337. Affirmed, S. C, 15 Eng. 176. Somerville v. Hawkins, 10 C. B. 590. Malicious lib^l. Approved, LaugJiton v. Bishop of Sodor & Man, 4 Eng. 162. Souch Y. Strawbridge, 3 C. B. 808; 15 L. J. (C. P.) 170. Statute of frauds. Approved, Knowlman v. Bluett, 7 Eng. 387. Spargo'a case, 8 Ch. 407. Payment. Approved, Coates' case, 7 Eng. 748. Spencer v. Mariott, 1 B. & C. 457 ; 3 D. & Ry. 665. Covenant for quiet enjoy- ment. Approved, Bennett v. Atherton, 3 Eng. 77. V. Maule, 4 Exch. 382. Libel. Followed, Laughton v. Bishop of Sodor & Man, 4 Eng. 162. OASES CEITICISBD. xxxvii Springhead Spinning Go. v. BUey, 6 Bq. 551. Libel. Overruled, Prudential Ins. Co. V. Knott, 11 Bug. 498. Sprgev. Porter, 1 B. & B. 58; 26 L. J. (Q. B.) 64. Champerty. Followed, Hutley V. Hutley, 4 Eng. 845. Spurway v. Olynn, 9 Ves. 483. Will. Distinguished, Turner v. £mcA, 9 Bug. 816. Staight v. Sai/i, 5 Ch. 163. Injunction. Approved, Aynaley v. Glover, 11 Bug. 521. fs'case, 4 De G. J. & S. 407. Power to mortgage. Approved, Bank of 3. ■ Australia v. Abrahams, 12 Eng. 148. Stanton v. Bichardson, 3 Eng. 3l4. 'Affirmed, 8. 0., 10 Eng. 223. V. Tattersall, 1 Sm. &• GifE. 529. Rescission for mistake. Approved, Torrance v. Bolton, 3 Eng. 674. ! V. Preece, 9 Bng. 738 ; 18 Eq. 192. Conversion. Followed, Arnold v. Dixon, 11 Eng. 718. ^hens, Ex parte, ti Ves. 24. Set-oflf. Explained, JficZdetora y. Pollock, 15 Bng. 467. Stevens v. ElwaU, 4 M. & S. 259. Conversion. Approved, Collins v. Fowler, 14 Eng. 138. v. Fa-re Foor«<, 17- Beav. 805. Settlement. Overruled, In re Edwards, 8 Eng. 760. Stewart v. TT. India & Pac. Steamship Co., 4 Bng. 229. Affirmed, S. C, 6 Eng. 103. Insurance. Followed, Hendricks v. Australasian Ins. Co., 10 Bng. 240. Stileman v. Ashdown, 2 Atk. 477. Voluntary settlement. Followed, Maekay V. Douglass, 3 Eng. 659. • Stiles V. Ga/rdiff Steam Nav. Co., 33 L. J. (Q. B.) 310. Notice to servant. Ap- proved, Baldwin v. Gasella, 3 Eng. 434. Stockport Water-works Co. v. Corporation of Manchester, 9 Jur. (N. S.) 266. ^ Injunction. Followed, Pudsey Gas Co. v. Corporation of Bradford, 5 Eng. 784. V. Potter, 3 H. & C. 300. Water-course. Distinguished, Molker v. Poritt, 4 Eng. 480. Storer v. ffreai TFesierra ij^. Co., 2 Y. & C. Ch. 48. Specific performance. Fol- lowed, Greene v. Cheshire By. Co., 1 Eng. 546. , Strange v. Fooks, 4 GifE. 408. Surety, when discharged. Wulff v. Jay, 3 Bug. 298. . Stuart V. Gockerill, 8 Eq. 607. Bankruptcy, priority of mortgagee. Followed, In re Bussell's Policy Trusts, 5 Eng. 694. V. Crawley, 2 Stark. 323. Negligence. Distinguished, Bichardson v. Iforth^eastern By. Co., 1 Eng. 126. Sturge v. Dimsdale, 6 Beav. 462. Will. Coneidered, Wills v. Bourne, 6 Bng. 821. Sugg V. Sugg, 31 L. J. 41. Divorce. Considered, Gower v. Oower, 4 Bng. 657. xxxviii CASES CEITICISED. i, 4 Sw. & Tr. 6. Will, attestation of. Followed. In Goods of Dilkes, 10 Bng. 51^ Swift V. Jewabury, 5 Bng. 303. Affirmed, B. C, 8 Eng. 86. V. &mft, 34 Beav. 366. Separation deed. Considered, Sa/mlton v Sector, 2 Bng. 393. Smndon Water-works Co. v. WUts & B&rka' Canal Go., 9 Eng. 546. Modified, 8. a, 14 Eng. 86. Swire v. Zeach, 18 C. B. (N. S.) 479 ; 34 L. J. (C. P.) 150. Distress for rent. Approved, MUes v. JBhirier, 4 Bng. 334. Talbot V. Shrewsbury, Prec. Ch. 894. Election. Followed, Atkinson v. Little- wood, 11 Bng. 561. Tabling v. Jones, 11 H. L. C. 390. Lights. Approved, Aynsley v. Olover, 13 Eng. 736. Ta/pscott V. Balfour, 8 C. P. 46 ; 4 Eng. 816. Charter-party. Distinguished, ^«cro/if V. CVo«) Orchard OoUiery Co., 10 Eng. 167. Tattan v. Great Western By. Co., 3 E. &E. 844. Form of action. Discussed, Baylis v. Lintott, 5 Eng. 319. Taylm' v. Caldwell, 8 B. & S. 836. Excuse for non-deUveiy. Followed, Howell V. Coupland. 10 Eng. 110. V. Greenhalgh, 10 Bng. 135. Negligence. Distinguished. Pendlebury V. Greenhalgh, 15 Bng. 171. Taylor V. Bliafto, 8 B. & S. 338. Mining, damages by. Commented on, Eadon V. Jeffeock, 3 Bng. 458. Tench v. Cheese, 6 D. M. & G. 453. Charge on real and personal estate. Con- sidered. Allan V. Gott, 3 Bng. 333. Terry v. Brighton Aquarium Co., 10 Q. B. 306 ; 13 Eng. 253. Sunday, viola- tion of. Followed, Warner v. Brighton Aquarium Co., 14 Bng. 578. The Thomas Lea, 38 L. J. (Ad.) 37. Burden of proof. Overruled, The Ben- more, 7 Eng. 368. Thomas v. Rhymney By. Co., 5 Q. B. 326; 6 id. 366. Negligence. Distin- guished, Wright v. Midland By. Co., 5 Bug. 333. V. Thomas, 2 C. M. & R. 34. Easement. Followed, Harvey v. Walters, 4 Eng. 393. Thompson v. Hopper, 6 B. & B. 173. Insurance . Approved, Dudgeon v. Pern,- broke, 10 Bng. 192. * ' V. ZapjflortA, 3C. P. 149. Lease. Approved, CVosse v. Paw, 10 Bng. 386? ■ V. Simpson, 5 Chan. App. 659. Equitable assignment. Followed, Citi- zens' Bank of La. v. First Nat. Bank of N. 0., 7 Eng. 56. Thorn v. Mayor, etc., of London, 9 Eng. 475. Affirmed, 8. C, 13 Bng. 555; 15 id. 28. Thorogood v. Bryan, 8 C. B. 115. Joint liability. Approved, Armstrong v. Lancashire, etc.. By. Co., 12 Eng. 508. Threfall v. Borwick, 3 Eng. 689. Affirmed, 8. C, 13 Eng. 266. CASES CEITICISED. I xxxix KU, Me parte, 16 Eq. 97. Receiver. Explained, Ex parte Gochrane, 13 Eng. 803. Toplis V. Orane, 5 Bing. N. C. 636. Indemnity. , Followed, Dugdale v. Lover- ing, 12 Eng. 316. Topping, Ex parte, 4 D. J. & S. 551. Proof between partners. Considered, Lacey v. Hill, 5 Eng. 654. Torrance v. Bolton, 8 Eng. 674. Affirmed, 8. C, 4 Eng. 800. Touteng v. HiMard, 3 B. & P. 291. Contract. Followed, Oeip^l v. Smith, 3 Eng. 98. Trappes v. Meredith, 9 Eq. 229. Eeversed, S. G., 2 Eng. 264. Irimmer v. Bayne, 7 Ves. 508. Ademption of legacy. Discussed, Leighton v. Leighton, 10 Eng. 774. Trinder v. Trind&r, 1 Eq. 695. Will. Explained, Morrice v. Aylmer, 14 Eng. 103. Troughton v. Cfitley, Amb. 629. Equity. Followed, Engelback v. Oitley, 14 Eng. 481. Tulleti V. Armstrong, 4 My. & Cr. 377. Restraint of anticipation. Approved, in re Ellis' Trusts, 9 Eng. 611. Turner v. Reynall, 14 C. B. (N. S.) 328. Registration of apothecary. Dis- cussed, Leman v. Mouseley, 11 Eng. 156. Turquand v. Marshall, 4 Chan. App. 376. Agent's duty and liability. Ex- plained and approved, Overend, Ourney & Oo. v. CHiib, 3 Eng. 1. Turrill v. Crawley, 13 Q. B. 197. L ien of innkeeper. Followed, Threlfall v. Borvyiek, 2 Eng. 689. Twisden v. Twisden, 9 Ves. 413. Advancement. Distinguished, Cooper v. Cooper, 7 Eng. 891, r^/er-g V. Bosedale, etc., Iron Co., 7 Eng. 273. Reversed, /S. C, 12 Eng. 631. Vdney v. Udney, 1 Sc. App. 458. Domicile. Approved, Wilson v. Wilson, 4 Eng. 663. United States v. TFa^mer, 2 Ch. 582. Discovery. Followed, P&ru v. Weguelin, 13 Eng. 679. JTptoTi V. Prince, Cas. t. Tal. 71. Legacy. Distinguished, In re Peacock's Estate, 3 Eng. 711. Vallee v Dumergue, 4 Bxch. 290. Jurisdiction. Followed, Copin v. ilf^aw- «ore, 10 Eng. 492. Van Sittart v. Van Sittart, 3 D. CJ. & J. 349. Separation deed. Considered, Samilton v. Sector, 3 Eng. 393. . Vaughton v. London & N. W. By. Co., 9 Exch. 93. Carrier. Distinguished, McQueen v. Great Western By. Co., 14 Eng. 369. Velocity, The, 3 P. C. 44. Collision. Followed, Malcffmson v. Gen. Steam Nav. Co., 4 Eng. 183. Tenner's Estate, Matter of, 6 Eq. 249. Sale of estate. Considered, In re Glmgh's Estate, 5 Bug. 850. xl ' CASES CRITICISED. Yichers v. Vickers, 4 Bq. 535. Specific performance. Approved, Smith v. Peters, 15 Eng. 463. Yillars, Ex parte, 9 Ch. 432. Bankruptcy. Distinguielxed, Ex parte Bawes, 13 Eng. 704. Followed, Ex parte Jajnes, 10 Eng. 619. Yirgil, The, 2 W. Eob. 205. Inevitable accident. Followed, The Marpesia, 3 Eng. 93. Vizard's Trusts, In re, 1 Ch. 588. Appointment. Approved, Be Serre v. Oiarke, 11 Eng. 554. VuUiamy v. Nohle, 3 Mer. 598. S?t-oflf. Explained, Middleton v. Pollock, 15 Eng. 467. ' Yyse V. Foster, 4 Eng. 904. Affirmed, 8. G., 11 Eng. 1. Walker v. Main, 1 Jac. & W. 1. Legacy. Followed, In re OaitskelVs Trusts, 5 Eng. 895. Ward V. Byrne, 5 M. & W. 548. Covenant in restraint of trade. Followed, Alsopp V. Wheateroft, 5 EAg. 714. Ware v. Rowland, 15 Sim. 587. Will.- Discussed, In re Steven^ Trusts, 5 Eng. 746. Waring, Ex parte, 19 Ves. 845. Bankruptcy. Followed, 'Ex parte Smart, 4 Eng. 855; Ex parte Bewhurst, 7 id. 504; In re Barned's Banking Go., 13 id. 704. Distinguished, Vaughan v. Halliday, 10 Bug. 590 ; Ex parte Langton, 13 id. 783. Warren v. Richardson, You. 1. False statements as to title. Approved, Ha/r- nett V. Baker, 13 Eng. 598. Warriner v. Rogers, 16 Eq. 340. Trust. Followed, Richards v. Belbridge, 9 Eng. 669. Watkins, Ex parte, 8 Ch. 530. Reputed ownership. Followed, Ex parte Vaux, 10 Eng. 613. Distinguished, Ex parte Lovering, 10 Eng. 626. Watson V. Hayes, 5 My. & Cr. 125. Legacy. Approved, Fox v. 'Fox, 11 Eng. 836. V. Watson, 33 Beav. 574. Advances. Followed, Bi re PeacoeUs Estate, 3 Eng. 711. Webh, In re, 3 Phillips, 533. Legacy. Distinguished, In re Scarlet, 6 Eng. 586. WeWs Policy, In, re, 15 W. E. 529. Mortgage of policy. Disapproved, In re Russell's Policy Trusts, 5 Eng. 694. Webb V. Sadler, 14 Eng. 533. Power. Modified, S. 0., 5 Eng. 636. Webster v. Webster, 10 Ves. 93. Executor de son tort. Approved, Goote v. Whiitington, 6 Eng. 854. Wells V. Horton, 4 Bing. 40. Statute of frauds. Approved, Knowlman v. Bluett, "7 Eng. 287. Westcott, Ex parte, 9 Ch. 626. Breach of trust. Distinguished, In re Bixon, 11 Eng. 518. Westeo'n Bank of Scotland V. Addie, 1 H. L. Sc. 145. J Liability of principal. Distinguished, iKactoy v. Oom. Bank of N. Brunswick, 9 Eng, 303. CASES OKITIOISED. xli Wheelton v. Hardisty, 8 E. & B. 233. Life insurance. Distinguished, Mite- donald v. Law Union Ins. Go., 8 Bng. 369. WMtaker v. Forbm. 14 Eng. 437. Affirmed, 8. O., 15 Eng. 334. White V. Chitty, 1 Eq. 372. Legacy. Distinguished, Trappes v. Meredith, 3 Eng. 264 ; In re ParnPiam's Trusts, id. 357. Whiteliead v. Parks, 3 H. & N. 870. Incidental injury. Distinguished, Balla- corJdsh Silver, etc.. Mining Go. v. Harrison, 8 Eng. 88. V. Whitehead, 16 Eq. 538. Bequest. Explained, PolloeTc v. Pollock, 9 Eng. 840. Whitehouse v. Partridge, 3 Sw. 365. Ne exeat. Ex{)lained, Sobey v. Sobey, 5 Eng. 805. Whitely v. Adams, 15 C. B. (N. S.) 393. Privileged communication. Followed, LaugHon v. Bishop of Sodor & Man, 4 Eng. 163. Wichham v. Wing, 3 H. & M. 436. Power, Considered, In re Aylwin's Trusts, 7 Ehig. 598. WUldnson v. Schneider, 9 Eq. 433. Testamentary appointment. Followed, In re Dames' Trusts, 1 Eng. 635. Wills -7^ Bourne, 16 Eq. 487. Will. Followed, Miles v. Harrison, 8 Eng. 881. Wilmer v. Gurrey, 3 De G. & Sm. -347. Joint liability. Considered, Beresford V. Browning, 15 Eng. 494, 637. W^SOTi V. Llojid, 6 Eng. 643. Discharge of principal. Disapproved, Mc parte Jacobs, 13 Eng. 707. V. Merry, 1 H. L. 336. Master's liability. Followed, HoweUs v. Lan- dore, etc.. Steel Go., 11 Eng. 153. V. O'Leary, 13 Eq. 535. Affirmed, 8. C, 3 Eug. 343. V. Rankin, 1 Q. B. 162. Notice. Followed, Dudgeon v. Pembroke, 10 Eng. 193. Winch V. Conservators, etc., 3 Bug. 344. Reversed, yS. (7., 10 Eng. 213. Withers v. Reynolds, 3 B. & Ad. 883. Abandonment of contract. Followed, Bloomer y. Bernstein, 10 Eng. 319. Woodcock V. Duke of Dorset, 3 Bro. C. C. 569. Settlement. Explained, Jeyes V. Savage, 14 Eng. 783. Wollaston V. Tribe, 9 Eq. 44. Voluntary settlement. Distinguished, P/ti/Zi^s V. Mullings, 3 Eng. 359. Wormald v. Maitland, 35 L. J. (Ch.) 69. Priority. Questioned, Agra Bank v. Barry, 9 Eng. 94. Wright v. Vanderplank, 8 D. M. & G. 133. Setting aside voluntary deed. Dis- cussed, Turner v. Collins, 2 Eng. 390. V. Wilkin, 4 Jur. (N. S.) 804. Examination of witnesses. Considered, Ohlson v. Terrero, 11 Eng. 485. V. Woodgate, 3 C. M. & R. 577. Privileged communication. Followed, Laughton v. Bislwp of Sodor & Man, 4 Eng. 163. Wylly's trusts. In re, 38 Beav. 458. Payment to cestui que trust. Explained, In re Guil's Trusts, 15 Eng. 493. xlii OASES CRITICISED. Fates V. Jack, 1 Ch. 295. Lights. Approved, Aymley v. Glover, 11 Bng. 531. V. Unweraity College, 5 Eng. 664. Afiarmed, 12 Eng. 67. Young v. Austen, 4 C. P. 553. Condition. Approved, Oorhling v. Massey, 6 Eng. 176. v. Edwards, 33 L. J. (M. C.) 227. Ordinances. Discussed, Hall v. Mxon, 13 Eng. 218. . V. Macrae, 8 B. & S. 264. Libel. Distinguislied, Western Oo. Manure Oo. V. Lawe^ Chemical Manure Co., 10 Eng. 891. — V. Young, 13 Eq. 175. Costs. Disapproved, Da/vey v. Wietlisbach, 5 Eng. 843. DIGEST MOAK'S ENGLISH REPORTS. ABANDONMENT — See Easement ; Insurance, Mabinb. ABATEMENT — ;S6fl Legacy. ABATEMENT AND REVIVOE. Revivor in coiirt of appeal Where a Bole plaintiff dies after his petition for rehearing is before the court of appeal in chancery, the suit can be revived on an original motion before the court of appeal. Ohadwick v. Chadmck (Chan. App.) VII, 478. ABDUCTION — See Cbiminai, Law. ABORTION — See Cbiminal Law. ABSTRACT OF TITLE. Sufficiency. A vendor of real estate bound to furnish an abstract of title, must furnish one as perfect as he can at the date of delivery, and it must therefore state with sufficient fullness the effect of every instrument that constitutes the title. Want v. Stallibrass (Exch.), V, 363. See Vendor and Pubchasbe. ACCEPTANCE— See Bill of Lading; Cohtbact; Pbauds, Statdtb op; Public Company; Sale. ACCESSION— See Bankeuptoy. ACCESSORY— See Cbiminal Law. ACCIDENT. Inevitable accident is that which the party charged with the damage could not possibly prevent by the exercise of ordinary care, caution, and mari- time skill. TTie Ma/rpeda v. Tfte America (Priv. C), III, 93. See Nbgligenoe. 2 ACTION". ACCOMMODATION BILLS — ,8«e Bahkeuptcy. ' ACCOMP LICE — See Criminal Law. ACCOED AND SATISFACTION — «ee Compbomibb. ACCOUNTING. Pending appeal. The plaintiffs obtained a verdict in an action for the infringement of a patent. A rule to enter the verdict for the defendants was . discharged, and the defendants appealed. An order was afterward made for an account of profits, which was not appealed against, but on the parties appearing before the master for the purpose of taking the account, the defend- ants refused to produce their books. The court made absolute a rule for pro- duction and inspection of the defendants' books, and for interrogatories to the defendants, notwithstanding the pendency of the appeal. Baaby v. Eaaterbrook (Bxch.), II, 131. See TauBTB, Etc. ACCOUNT STATED— j8«6 Principal and Agent. ACKNOWLEDGMENT. Defective jurat. The court allowed a certificate of acknowledgment under 3 & 4 Wm. 4, c. 74, taken at Loqh Haven, Pennsylvania, to be filed, not- withstanding that the jurat of the aflidavit of verification was defective in not naming the place where the acknowledgment was taken, or describing the deponent, there being a notarial certificate identifying the place and the parties. Matter of Coldwell (Com. PL), XIV, 498. ACQUIESCENCE — See Copyright; Mistake; Trubt. ACCRETION- See Alluvion; Sea Shore. ACT OF PUBLIC ENEMT- See Chabter-Pabty. ACT OF STATE — See Jubibdiction. ACTION. 1. Breach of covenant. The plaintiff was lessee of certain premises under a lease containing a covenant to keep in repair. He assigned the lease to B., who assigned it to the defendants. The assignment from the plaintiff to B., and from B. to the defendants, contained express covenants with the imme- diate assignors respectively, to indemnify them against all subsequent breaches. Whilst the defendants were in possession they committed breaches of the covenant to keep in repair, in respect of which the lessor recovered damages from the plaintiff. In . an action to recover over these damages against the defendants, held, that the plaintiff was entitled to recover, because there was a privity of contract, and the defendant received the whole benefit. Moule V. Garrett (Exch.), I, 307. 2. En garantie. Where an action by purchasers to recover damages for non-performance of a contract for the sale of certain spars and timber, " to be ACTION. 3 delivered free of charge to morrow, or as soon as they can be got out of the hands of the guardian, but the purchasers not bound to take them if not delivered in one week, unless they like," such delivery having been prevented within the time specified, by reason of the guardian in possession of the spars insisting on retaining them in consequence of a writ of saisie-arret issued in an action instituted against the ostensible owher of the spars and timber, whose mark they bore, having been served on him, was decided in favor of the defendants, on the ground that the reasonable construction of the words getting " out of the hands of the guardian " was the actual and not construct- ive or legal title to the possession, which could alone insure the delivery; held, that an action en garantie, founded on the former right of action, brought against the guardian as garant by the original contractors, to recover damages for wrongful detention 'of the spars and timber, could not be sustained. McLaren v. Murphy (Priv. C), III, 134. 3. For excessive distress. A tenant occupying a house with his wife and one to whom goods therein had been assigned as trustee for the wife, and having the use of such goods, has a special property in them, which entitles him to maintain an action against the landlord for an excessive distress of such goods. Fell v. Whittaker (Q. B.), I, 36. 4. Neglect of statutory duty. When a statute creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another's neglect of the statutory duty, suffers a loss of a different kind, is not entitled to maintain an action in respect of such loss. Qorris v. Scott (Exch.), VIII, 561. 5. TJie defendant, a shipowner, undertook to carjy the plaintiffs' sheep from a foreign port to England. On the voyage some of the sheep were washed overboard by reason of the defendant's neglect to take a precaution enjoined by an order of the Privy Council, which was made under the author- ity of the Contagious Diseases (Animals) Act, 1869, s. 75. Held, that the object of the statute and the order being to prevent the spread of contagious disease among animals, and not to protect them against the perils of the sea, the plaintiffs could not recover. lb. 8ee AucTiONBKR ; Pktition of Right. ACCUMULATION — ;S6« Will. ADDITION — See Chattel Mortgage. ADEMPTION — /See Lkgacy; Gift; Wili,. ADJOURNMENT— ;8«e Cbiminai Law. ADMINISTRATION SUIT. • 1. Costs, on what fund chargeable. The rule that in providing for the costs of an administration suit real estate undisposed of must be applied for that purpose in priority to personal estate effectually disposed of, applies equally to real estate which descends by reason' of lapse and to that as to which no disposition has been attempted. Scott v. Gurfiberland (Eq. C), XI, S46. 4 ADMIKALTY. 2. A testatrix, being possessed of personal estate, by will executed in December, 1855, gave to lier niece, subject to all legacies and bequests, the residue of lier estate up to the end of the year 1855 ; and she gave all accumu- lations from that date equally between her great-nephews. The share of resi- due to the niece lapsed by her death in the life-time of the testatrix. Held, that the only residue was that given to the niece, which lapsed, and was liable CO all the expenses and debts. SenMe, that wherever there is a lapsed share of residuary estate, whether personal or real, the lapsed share is the primary fund for payment of debts and expenses. Qowan v. Broughton (Eq. C), XI, 687. 3. If the residuary personalty, after payment of the testator's debts, is insufficient to pay the costs of a suit to administer the trusts of a will, the deficiency must be borne ratably by the specifically bequeathed personalty, the specifically devised realty, and the residuary realty. Jaekson v. Pease (Eq. C), XI, 700. ADMINISTRATORS — See Exbctjtors and Administrators. ADMIRALTY. 1. Juriadiction in general. Where a petition on protest is filed on the ground of want of j urisdiction, before the plaintiff's petition setting forth the particulars of his damage, the petition on protest ought to state the facts which show want of jurisdiction. Dapueto v. Wyllie ; The Pieve Superiore (Priv. C), IX, 264. 2. The general words of clause 6 of the Admiralty Court Act, 1861, " any claim * * * for any breach of contract on the part of the owner, etc., of the ship," have relation to the contract in the bill of lading. lb. 3. Where the parties contemplated that the goods would, or at least might, be. carried into and delivered in an English port, and it was so provided by the bill of lading signed by the master at Rangoon, in pursuance of a charter-party made in England, and the master in fact put into an English port for orders in part fulfilment of the contract of carriage, the jurisdiction, at least in respect of then existing causes of suit, arose when the goods were so carried into port, and was not taken away by the ship being subsequently sent to a foreign port to be discharged. lb. 4. The 6th section of the Admiralty Court Act, 1861, does not confer a maritime lien. It only gives to the Court of Admiralty jurisdiction to.enter- tain a suit either in personam or in rem, by arrest of the ship whenever it comes within reach of process. The arrest cannot avail against any valid charge on the ship, nor against a bona fide purchaser. lb. 6. The Admiralty Court Act, 1861 , being intended to remedy a griev- ance by amplifying the jurisdiction of the English Court of Admiralty, ought to be construed libei-ally, so as to afford the utmost relief which the fair mean- ing of its language will allow. lb. 6 of county courts. By 32 & 33 Vict., c. 51, s. 2, it is enacted that " any county court appointed, or to be appointed, to have admiralty jurisdic- tion, shall have jurisdiction, and all powers and authorities relating thereto, to try and determine the following causes : 1. As to any claim arising out of ADMIEALTY. 5 any agreement made in relation to the use or hire of any ship, or in relation to the carriage of any goods in any ship, * * * provided the amount claimed does not exceed £300." Held, that this section gives the County Court jurisdiction in cases of claims arising out of charter-parties or other agree- ments for the use or hire of ships, although the Court of Admiralty may have no original jurisdiction in such cases. Oaudet v. Brown; Oargo ex Argos and Qei/pel v. Comforth; The Hewaons (Priv. C), VIII, 103. 7. of foreign ship. A foreign ship was chartered to load a cargo of rice at a port in the East Indies, and therewith proceed to Belle Isle, Scilly, Queenstown or Falmouth for orders to discharge at a port in the United King- dom or on the Continent, between Havre and Hamburg. The vessel loaded her cargo and proceeded to the port of Falmouth, and there received orders to goto Bremen, where she discharged her cargo. It wns alleged that the cargo had suffered damage in the vessel. After discharging her cargo, the ship sailed to Cardiff on a new voyage, and was there arrested in a suit instituted on behalf of the consignees of the cargo of rice, under the 6th section of the Admiralty Court Act, 1861. Held, that the cargo of "rice was carried into a port in England within the meaning of the words in the 6th section of the Admiralty Court Act, 1861, and that the court had jurisdiction to entertain the suit. The Pieve Superiore (Adm. & Eccl.), VIII, 648. 8. of foreign sovereign. In a, cause of damage instituted by the owners, master and crew of the Batamer against the vessel OUarkieh and her freight, an appearance under protest was entered on behalf of His Highness the Khedive of Egypt and his minister of marine. A petition on protest was filed on their behalf, stating that the Oliarkieh was the property of the Khe- dive as reigning sovereign of the State of Egypt, and a public vessel of the government and semi-sovereign State of Egypt, and concluding with a prayer to the court to declare that the vessel was not liable to arrest. It appeared from the answer filed on behalf of the plaintiffs, and from evidence which was adduced at the hearing of the petition on protest, that the Cha/rkieh, though carrying the flag of the Ottoman navy, had come with cargo to Eng- land and had been entered at the customs like an ordinary merchant ship, and that, at the time of the collision, which happened in the Thames, she was under charter to a British subject, and was advertised to carry cargo to Alex- andtia. The court held that the Khedive was not entitled to the privilege of a sovereign prince, and pronounced against the protest. The Oharldeh (Adm. & Eccl.), VI, 400. 9. Semble, that a suit in rem to enforce a damage lien may be enter- tained without any violation of international law, though the owner of the res be the sovereign of a foreign State, and that such a suit may possibly be entertained even against property connected with the jus corona. lb. 10. Semble, that if a sovereign assumes the character of a trader, and sends a vessel belonging to him to this country to trade here, he must be con- sidered to have waived any privilege which might otherwise attach to the vessel as the property of a sovereign. lb, ■11. of maritime lien. The proper mode of enforcing a maritime lien on a vessel belonging to a company which has been ordered to be wound up is by a proceeding in the winding up, and not by a proceeding in rem in the 6 ADMIRALTY. Admiralty Court. In re. Australian Direct Steam Ifm. Go. (Eq. C), XIII, 838. 12. The arrest of a vessel by the Admiralty Court is a " sequestration " within the meaning of the Companies Act, 1863, n. 163. lb. 13 of suit as to title of ship. A British ship was mortgaged by an instrument that was in the form prescribed by the Merchant Shipping Act, 1854, and was duly registered. The mortgagor died intestate, and the mort- gagees sold the ship under their power of sale, and executed a bill of sale to the purchaser. By mistake, a receipt for the payment of the mortgage money was indorsed on the mortgage and signed by the mortgagee, and produced to the registrar of shipping, who recorded the same. Afterward the bill of sale was produced to the registrar, who refused to register it, upon the ground that the property in the ship had vested in the representatives of the mortgagor. In order to complete the title of the purchaser, a suit in rem was instituted on behalf of the mortgagee and purchaser, and in such suit the court held it had jurisdiction to grant a decree declaring that the purchaser was entitled to possession of the ship. * The Sose (Adm. & Eccl.), V, 550. 14. Pleadings — allegations of negligence. If a plaintiff in a collision suit intends to rely upon a particular act of negligence by the defendant, he is bound specifically to allege that act in his pleadings, and it is not sufficient that the act may be included generally in an allegation in the pleadings, which do not clearly state such particular act ; as it is likely to mislead the defend- ant, and prevent his being prepared to meet that particular case. The Mar- penia V. I'he America (Priv. C), III, 93. 15. Plea of another suit. In a suit instituted on behalf of the owners, master, and crew of a steam tug, to recover salvage reward for salving a dis- abled vessel and her cargo; it appeared by the petition that persons other than the plaintiffs in the cause had assisted in the service, and in an article in the answer filed on behalf of the owners of the salved vessel and her cargo, the defendants alleged that they had been ordered by a court of competent juris- diction to pay to such other persons the sum of £340, in respect of the assist- apce so rendered by them. The plaintiffs moved to strike out this article.- The court, holding that the article was relevant to the matters in issue in the suit, rejected the motion. The AntUope (Adm. & Eccl.), V, 569. 16. Counterclaim. In a cause of wages and disbursements instituted on be- half of a master, himself a co-owner, against other part owners, the defendants may plead in answer that on a balance of account between the plaintiff aa master and co-owner, and the defendants, nothing is due to the plaintiff, l/ie City of Motile (Adm. & Eocl.), VIII, 666. 17. Practice. In a damage suit the practice of the court requires the plain- tiff to begin, notwithstanding that the defendant raises no other defense than that of inevitable accident. The Otter (Adm. & Eccl.), VIII, 674. 18. Costs — collision cases. It is a rule in the Admiralty Court, in cases where a collision is found to be the result of inevitable accident, to make no order as to costs, unless it can be shown that the suit was brought unreasona- bly and without sufficient prima facie grounds. This rule followed by the Appellate Court. The Marpesia v. T/ie America (Priv. C), III, 93. ADULTERATION OF FOOD. 7 19. The defendants in a collision suit, by their answer, denied that their vessel was to blame, and also set up the defense of compulsory pilotage. The court decided that their vessel was to blame, but dismissed the suit upon the ground that the defense of compulsory pilotage was established. Held, that the plaintiff was not entitled to any portion of the costs of the suit. Tlie Schwan (Adm. & Eccl.), VIII, 663. See Bill of Lading ; Charteh-Paktt ; Collision ; Ships, Etc. ADMISSIONS — See Cbiminal La-w ; Evidbncb ; Reformation of Instru- ments. ADULTERATION OP FOOD. 1. Disclosure of. The 3d section of 35 & 36 Vict., c. 74, enacts that " any person who -shall sell any article of food * * * knowing the same to have been mixed with any other substance, vrith intent fraudulently to increase its ■weight or bulk, and who shall not declare such admixture to any purchaser thereof before delivering the same and no other, shall be deemed to have sold an adulterated article of food * * * under this act." .Held, that a person who had sold mustard admixed with flour and turmeric, substances not injurious to health, declaring at the time of such sale that he did not sell the article as pure mustard, had been guilty of no offense under 35 & 36 Vict., c. 74, and that it was not necessary in order to comply with s. 3, that he shotfld declare the nature and proportion of the substances admixed. Pope v. Tearle (Com. PI.), X, 376. 2. Sale as imported. The appellant, a tea dealer, was convicted under 35 & 86 Vict., c. 74, s. 3, for selling as unadulterated " green tea '' which was adul terated. A person asked for two ounces of " green tea " at the appellant's shop, for which he paid 5J(?., the shopman stating that he was authorized by his employers to guarantee all their green teas of the value of 3(t. per pound and upwards as genuine green teas. On analysis, the tea was proved to be painted or faced with gypsum and prussian blue for the purpose of coloring it. The tea was sold in the same state in which it comes from abroad. The tea which is imported from China as green tea, and generally known, as such in the tea trade, is painted and faced in this manner ; but this practice is not known to the public. Pure green tea, though not known generally in the trade as " green tea," is imported from Japan. Hdd (Quain, J., dissenting), that the conviction was right. Roberts v. Egerton (Q. B.), X, 138. 3. Sale as unadulterated. By 35 & 36 Vict,, c. 74, s. 3, " every person who sliall sell as unadulterated any article of food or drink which is adulterated * * * shall forfeit a penalty not exceeding £30." By s. 3, " any person ■who shall sell any article of food or drink, knowing the same to have been mixed ■with any other substance with intent fraudulently to increase its ■weight or bulk, and who shall not declare such admixture to any purchaser before delivering the same, shall be deemed to have sold an adulterated article of food or drink under this act." An information was laid against the respond- ent for that he sold as unadulterated an article of food, to wit, butter, which wa,s adulterated. It was proved that an inspector of nuisances went to the shop of respondent and asked for " a pound of butter at Id." and the shopman handed to him a pound, the respondent being present. On being analyzed, it was 8 ADVANCEMENT, proved to have been largely adulterated with lard, tallow, etc., or material of that nature. The police magistrate was of opinion that it was necessary to prove that the butter, when sold, was represented as unadulterated, and that it was also necessary to prove that respondent knew that the butter had been mixed with some other substance, with intent fraudulently to increase its weight or bulk, and he, therefore, dismissed the information. On appeal, held, that it was not necessary that any express representation that the article sold was unadulterated should be made at the time of sale of a simple article like butter. Butter was asked for, and something handed over as butter, and that was selling " as unadulterated." Secondly, that s. 3, whatever might be its effect, was not intended to cut down s. 3 ; it was merely adding an additional offense. The case must, therefore, be remitted to the magistrate for rehearing. Mtzpatriek v. Kelly (Q. B.), VI, 94. ADULTERY — See Criminal Law ; Divorce. ADVANCEMENT. 1. What is. A testator devised real estates upon trust for his daughter, E. C, for life, with remainder to her husband, W. C. , for life, with remainder to trustees for one thousand years, to raise £30,000 for portions for younger children, with remainder to E. C.'s eldest son for life, with remainders over. And he directed that if E. C. or W. C, or either of them, should at any time during their joint lives, or the life of the survivor of them, advance or jfay any sum or sums of money for the use or benefit of any younger child or chil- dren for whom portions were provided, then and in such case, unless the con- trary should be directed by E. C. and W. C, or the survivor of them, by deed or writing to be sealed and delivered in the presence of one or more witnesses, the sum or sums so advanced should be taken in satisfaction pro tanto of the portion or portions of such child or children. E. C. had several children, one of whom, J., was of weak mind ; and while she was still under age, W. C. and E. C, and their eldest and second sons, executed a deed whereby they coven- anted that if the share of J. devolved upon them, or any of them, they would divide it among the other younger children. J. attained twenty-one and died, and her share thus devolved on her father, W. C, and became subject to his covenant. W. C, having, survived his wife, made a will whereby he gave legacies to his younger children, and gave the residue of his personal estate for the benefit of two of them. Held, that none of the gifts under W. C.'s will were to be taken toward satisfaction of the portions of the younger children. Cooper V. Cooper (Chan. App.), VII, 391. 2. Seld, also, that the division of the share of J. was not to be taken toward satisfaction of the portions of the younger children. lb. 8. A father purchased a copyhold cottage in the name of his son. Shortly after the purchase the father served notice to quit on an occupying tenant, but afterward allowed her to remain at an increased rent, and during his life received the rents and paid the outgoings. Seld (notwithstanding evi- dence of declarations that the cottage was th^ sou's after his father's death), that the purchase was a trust, and not an advancement. Stock v. MeAvoy (Eq. C), V, 711. AGISTMENT. '9 4. An " advaucement by portion " witliin the meaning of s. 5 of the statute of distrihutiona is a sum given by a parent to establish a- child in life or to make a provision for the child. Sums given for the following purposes : (1) payment of the admission fee to one of the inns of court in the case of a child intended for the bar ; (2) the price of a commission and outfit of a child entering the army ; (3) the price of plant and machinery and other payments for the purpose of starting a child in business, held " advancements by por- tion." Taylm- v. Taylor (Eq. C), XIII, 692.' 5. Sums given for the following purposes : (1) payment of a fee to a special pleader in the case of a child intended for the bar ; (2) price of outfit and passage money of an officer in the army and his wife on going out to India with his regiment ; (3) payment of debts incurred by an ofiicer in the army ; (4) assisting a clergyman in paying his housekeeping and other expenses, lield not " advancements by portion." lb. See Will. ADVANCES— (See Chabtbr-Partt. ADVERSE POSSESSION — ;S«e Easement; Limitations, Statute of. AFFIDAVIT. Not signed by a£Sant. The affidavit verifying the certificate of an acknowl- edgment taken by special commissioners in the East Indies left a blank for the place of abode of one of the commissioners, but as the affidavit stated that he was " the other commissioner in the said certificate mentioned," the court allowed it to pass. The affidavit was not signed by the deponent. The jurat, however, stated that it was sworn before a magistrate and justice of the peace (who duly described his office or authority) by the deponent. Held, upon the authority of Be Eady (6 Dowl. 615) and Beg. Gen. Hilary Term, 1863, that the defect was cured. Matter of Howmrd ; Matter of Asheroft (Com. PI.), IX, 436. APTER-ACQiriRED PROPERTY — See Bankruptcy ; Settlement. AFTER-BORN CHILDREN — See Life Estate; Will. AGE — See Evidenob. AGENT — iSise Broker; Criminal Law; Injunction; Officer; Principal AND Agent. AGISTMENT. Negligence. The defendant, an agister of cattle, placed the plaintiff's horse in a field with a number of heifers, knowing that a bull, kept on adjoining land, had several times been found in the field, and that there was no suffi- cient fence to keep it out. He did not, however, know that the bull was of a mischievous disposition. The 'horse was gored by the bull and killed, and in an action against the defendant for breach of contract to take reasonable care the jury found for the plain tifi'. Held, that the fact that the defendant had no knowledge of the mischievous disposition of the particular bull was no ground 2 10 ■ ALIMONY. for disturbing the verdict, as eucli knowledge was not essential to his liability under his contract as an agister to take reasonable care of the plaintiff's horse. Smith v. Oooke (Q. B. Div.), XV, 194. AQEEEMENT— 5«« Cabrier; Contract; PRAtjDS, Statute of; Inbttr- ancb; Landlord anU Tenant; Limitations, Statotb of; Master AND Servant; Saie; Settlement; Specific Performance; Vendor AND Vendee. AIDER — bee Chiminal Law. AIR — See Easement ; Injunction. ALIEN — See Bankruptcy ; Foreign Court ; Lunatic, ALIMONY. 1. Fending suit. When a husband and wi^e, at the time of the institution of a matrimonial suit against her, are living apart under a deed of separation by which an allowance is secured to the wife, the mere fact of the institution of the suit, without proof that she has thereby been put to greater expense than before, does not entitle the wife to an increased allowance by way of ali- mony pendente lite, estimated on the husband's present income. Powell v. PoweU fProb. & Div.), X, 535 ; affirming S. C, VI, 347. 2. After decree-of divorce. The Court for Divorce, acting upon the prin- ciples and rules in operation formerly in the ecclesiastical courts, will allow a petition for permanent alimony to be filed after it has made a final decree for judicial separation. Covell r. Govell (Prob. & Div.), IV, 647. See Divorce. ALLUVION. Title to. Where land which has been submerged re-forms and is identi- fied as having formed part (even by accretion) of a particular estate, the owner of that estate is entitled to it. Singh v. Khan (Ind. App.), XI, 113. See Sea Shore. ALTERATION— (See Wills. AMBiaUITT — ^6« Wills. AMENDMENT. At trial. Under s. 233 of the common law procedure act of 1853, a declaration setting forth a contract by the defendant to pay the plaintiff a cer- tain sum per annum during a term not yet expired, for maintaining certain children, and a breach thereof by the defendant, may be amended by the judge at the trial so as to allege that, at the defendant's request, the plaintiff main tained those children upon the terms that the defendant should pay her at the specified rate per year. Knowlman v. Bluett (Exch.), VII, 387. See Criminal Law; Practice. ANCIENT LIGHTS — See Lights; Party Wall. ANIMALS. ANNUITY. 11 ANIMALS. 1. Owner's liability for iojuries by. The defendants' horse having injured the plaintiffs mare by biting and kicking her through the fence separating the plaintiffs land from the defendants ', 7ield, that there was a trespass, by the act of the defendants' horse, for which the defendants were liable, apart from any question of negligence on the part of the defendants. SUis v. Loftus Iron Co. (Com. PI.), XI, 214. 2. In order to fix the defendant with knowledge of the ferocious nature of a dog of which he was the owner, and which had bitten the plaintiff, two persons who had upon previous occasions (one of them twice) been attacked by it were called to prove that they had gone to the defendant's public house and made complaint to two persons who were behind the bar serving customers, and that one of them had also complained to the barmaid. There was, how- ever, no evidence that these complaints were communicated to the defendant ; nor was it shown that either of the two men spoken to had the general man- agement of the defendant's business or had the care of the dog. Held (Bbett, J., dissenting), that there was evidence of scienter to go to the jury. Applebeei V. Percy (Com. PI.), X, 334. See Cakkibrs; Criminal Law; Negligbncb. ANNUITY. 1. Value provable in bankruptcy. A man went through the ceremony of marriage with a sister of his deceased wife, and lived with her as his wife. They afterward separated, and a separation deed in the ordinary form was executed, in which she was described as his wife, and he covenanted with the trustees of the deed to pay her an annuity for their joint lives. There was a proviso that, if the parties should live together again by mutual consent, the deed should become void. The annuity was paid for twelve years, and then the man became bankrupt. Seld, that the value of the future payments of the annuity was capable of estimation, and was provable in the bankruptcy. Mc pcvrte Waden ; In re Wood (Chan. App.), X, 659. 2. As the parties never could legally live together as husband and wife, the proviso, making the deed void in the event of their doing so, must be disre- garded, lb. 3. Out of what payable. Testator gave the residue of his estate to trustees to pay the income for the benefit of his wife and unmarried daughters and youngest son, and directed that, upon the youngest son attaining the age of twenty-one years, the trustees should invest a sufficient sum to secure the receipt of the annual sum of £50, to be paid by installments as the dividends were received, to his wife for her maintenance ; and subject thereto, the trus- tees were to divide the whole of the trust estate amongst his eight children ; and on the death of his wife the amount invested to secure her the annual income of £50 was to be divided in like manner amongst his eight children. The youngest son attained twenty-one in 1873. The income arising from the whole of the estate did not amount to £50 a year. Held, that the widow was not entitled to be paid any arrears out of the corpus. Mitchell v. Wilton (Eq. 12 APPEAL. 4. When ceases. A gift of an annuity to a trustee, so long as he should continue to execute the office of trustee, hdd, to determine on the cesser of active trusts by the payment of the whole of the trust property to a person absolutely entitled, without a devolution of the office of trustee on any other person. Hull v. Ohriatian (Bq. C), IX, 647. 6. An annuity secured by a separation deed to be paid to the wife, is payable notwithstanding a subsequent adultery on her part and a divorce therefor, unless that contingency was provided for in the deed. Charlegworth V. Soli (Bxch.), VII, 315. See Apportionment; Will. ANSWER — Bee Alteration ; Exbcittors, Etc. ; Fraud ; Pleading. APOTHECARY. Right to recover for services, etc. Under the Medical Act, 1858 (31 & 23 Vict., c. 90), ss. 31, 32, and the Apothecaries Act (55 Geo. 3, c. 194), s. 21, in order to recover for medicines and attendance as an apothecary it is necessary that the practitioner should have been qualified and registered at the time of the services rendered ; and it is not sufficient that he produce at the trial a certificate of registration obtained after action brought. Leman v. Mouseley (Q. B.), XI, 156. APPEAL. 1. To Privy Council. The power of appeal to Her Majesty ^jand the author- ity of the Supreme Court of the Straits Settlement to grant leave to do so, contained in the letters patent of the Queen of the 10th of August, 1855, were not abrogated by Ordinance No. 5 of 1868, establishing the present Supreme Court. All the provisions of the repealed letters patent applicable to the old court were virtually re-enacted by the ordinance, and made applicable to the new court which was put in its place. Neo v. Neo (Priv. C), XIII, 307. 2. Waiver by agreement. An information by way of bill of complaint was by consent amended by the introduction of the words " that the rights, if any, of the several defendants may be ascertained and declared by decree of this honorable court, and that they may be ordered to pay each to the others and other of them their and his costs of this suit, and that this honorable court will give such further directions in the premises as shall be necessary." There was no stipulation that the right of appeal should be given up, and it appeared that the parties never contemplated that they were ceasing to keep the cause in curia, or that the judge was to hear it otherwise than as a judge, or that it was not to go on subject to all tbe incidents of a cause regularly heard in court. Held, that the right to appeal had not been waived. Pisani V. Attorney- General (Priv. C), X, 78. 3. Where it is alleged that the bringing an appeal is contrary to agree- ment, the objection ought to be made when leave to appeal is applied for, or to be taken by a petition to the Queen before the appeal comes on for hearing. lb. 4. Evidence not used at hearing. Evidence taken before, but not used upon the original hearing, will not be admitted on the hearing of an appeal, where the refusal to admit it has not been appealed from. JEx parte Harris ; In re James (Eq. C), XI, 839. APPEAL. APPORTIONMENT. 13 5. Questions not raised below. Upon the argument of an appeal from jus- tices no point can^be urged which was not taken before the court below. Marshall v. Smith (Com. PI.), VI, 18fi. 6. The Judicial Committee are unwilling to send a case for re-trial, or to decide it, upon points which have been raised for the first time at their bar, and which possibly may have been treated as agreed upon, or too clear for argument, in the court below. Mackay v. Gommereial Bank (Priv. C), IX, 202. 7. When a point is waived in the court below, it cannot be insisted upon on appeal. HUliard v. Mffe (H. of L.), IX, 27. 8. Where, in an action to set aside an annuity deed for fraud in procur- ing it from the testator, the objection was made that the plaintiflF was legatee and had not proved the assent of the executor to the legacy, nor his insolv- ency, nor his refusal to sue, nor collusion on his part, but the Vice-Chancellor overruled the objection, and the defendant, though carrying the case to the Court of Appeal in Chancery, did not present to that court this or a previous objection to the Vice-Chancellor's decision, hdd, that he could not afterward, on bringing up the case to this house, present these objections in argument as ob- jections which might be made here to the decision of the Court of Appeal. lb. 9. Not raised by case. The court will not, upon appeal from a county court, entertain an objection which is not raised in the case settled by the County Court judge. Williams v. Evans (Eq. C), XIII, 490. 10. Appellants only heard. The House will not, on the application of a person not an appellant against a decree, make an alteration in it. If a change in the details of the decree should be necessary, his application for it should be made in the court below. Yates v. TTnimrsity OoUege (H. of L.), XII, 67. .11. Decision on merits. The Privy Council will exercise its discretion in deciding a case on its merits, without regarding strictly the precise terms of the pleadings. McLean v. McKay (Priv. C), VIII, 251. 12. Dismissal.. On bill by P. against K. and A., who all separately claimed the same property, decree made in favor of P. On appeal by A. alone, the court, being of opinion that B. was entitled, dismissed the bill against both defendants. Vaughan v. HaUiday (Chan. App.), X, 590. APPEARANCE — Bee Jtjbisdiction ; Lunatic. APPOINTMENT. Transfer of funds. Where a person, having a special power of appoint- ment over a fund of personalty, appoints two trustees for the objects of the power, the court, though recognizing the validity of such an appointment, will not, as a matter of right, transfer the fund to the trustees appointed by the donee of the power. Biish v. Aldam (Eq. C), XI, 637. Bee Power ;. Sbttlbmbnt ; Will. APPORTIONMENT. 1. Of rents devised. The Apportionment Act, 1870, applied to a specific as well as to a residuary devise. Hasluck v. Pedley (Eq. C), XI, 833. 14 APPORTIONMENT. ARBITRATION. 2 Held, also, that the act applied to a devise contained in a will dated before the act to which a codicil was made after the act. lb. 3. Semble, the result would have been the same without the codicil. lb. 4. When a testator charges an annuity on land with the ordinary power of distress and entry in the event of the annuity being in arrear, the annui- tant must wait for payment of the annuity until the first rent day which oc- curs after the day fixed by the testator for payment of an installment of the annuity, and is not entitled to require that any prior rent should be kept in hand in order to answer the installment. lb. 5. Specific bequest. Bequest of stock in a canal company to trustees to pay the dividends to the testator's wife for life, and afterward to fall into the residue. A half yearly dividend became due two months after the testator's death, and another about four months after the death of his wife. Held, that there must be an apportionment of both those dividends. Pollock v. Pollock (Eq. C), IX, 840. APPRENTICE. Dismissal o£ Declaration, that the defendant agreed with the plaintiflF to take his sou as an apprentice for three years, to learn the business of a tea- broker ; and in consideration of £200, to teach him such business and pay him a salary, provided that he should obey all commands and give his services entirely to the business during office hours. Breach, that the defendant dis- missed the son from his service. Plea, that the son misconducted himself in the service, by willfully disobeying the orders of the defendant, and by habit- ually neglecting his duties and refusing to give his services during office hours without just cause, wherefore the defendant discharged him. Meld, on de- murrer, that the proviso empowered the defendant to discharge' the apprentice, ' and that the plea was good. Westwick v. Tlieodor (Q. B.), XII, 380. See Pakbnt and Child. APPROPRIATION — &e Assignment; BAHKiNa. APPURTENANT — See Conveyances; Easement; Gkaiit. ARBITRATION. 1. Agreement for. To bring a dispute within the arbitration clause of the rules of a benefit building society, it must be one which arises between the trustees and the party claiming as member of the society. Prentice v. Lon- don (Com. PI.), XIV, 511. 2. The plaintiff was a transferee for value of shares in a benefit build- ing society. The transferor had been the secretary of the society, and in that capacity had incurred liabilities to the trustees to a considerable amount. The latter, after the transfer, but before they had notice of it, passed a reso- lution to forfeit the shares of the transferor, and appropriated their value toward the deficit. The plaintiff sued the trustees for refusing to admit him to the benefits to which he claimed to be entitled as a member of the society and as the holder of shares therein. The defendants pleaded that the cause • of action was " a dispute between the defendants as trustees and the trans- feror as a member, and the plaintiff as a person claiming on account of a mem- ARBITEATION. 15 ber of the society, and was a dispute which, according to the rules of the society and the statutes, ought to be settled by arbitration." Held, that, as the trustees denied the right of the plaintiff to be a member of the society, they were estopped from saying that the dispute was a dispute between them and him as a member, within the rule. lb. 3. When exclusive remedy. Where, under an agreement legislatively confirmed, the parties were bound to settle by arbitration all differences that might arise between them as to the meaning and effect of the agreement, or as to the mode of carrying it out, it was held by the House that the jurisdic- tion of the courts was, by this agreement, excluded, and that all disputes arising under it must be settled by arbitration. Per the Lord Chancbllor : We have here no room for the application of the doctrine as to voluntary agreements, but have simply to consider the case arising upon an act of Par- liament, forcing the parties to have their disputes settled, not by the ordinary tribunals of the country, but by arbitration. Caledonian By. Go. v. Greenock, etc.. By. Co. (Sc. & Div. App.), IX, 191. 4. Sending back award for mistake. An award will not be sent back to the arbitrator on the ground that he has made a mistake in the legal principle upon which his award is based, except where the arbitrator himself admits the mistake. Dinn v. Blake (Com. PI.}, XII, 449. 5. Settihg aside. Where a submission to arbitration has been made a rule of the Court of Chancery, service of a notice of m&tion to set aside the award is a complaint within the meaning of 9 and 10 Will. 3, c. 15, s. 2, and is in time, although the motion will not be heard until after the time limited by the act. Muddersfield v. Jacomh (Chan. App.), XI, 453. .6. Where, by the terms of a building contract, the work done is to be subject to the approval of an architect, and no payment to be made without his certificate, the decisiofi of such architect will not be set aside without proof of fraud, mistake or bias on the part of the arbitrator. Baron de Worms V. Mellier (Eq. C), VI, 868. 7. Certain matters in dispute were referred to three arbitrators, one to be chosen by each of the parties, and one by the two so chosen. On several occasions during the arbitration one of the parties provided luncheon at his expense, of which the arbitrator appointed by him and the third arbitrator, as well as his solicitor and one or two other persons, partook in the absence of the other party (who would not sit at the same table with his adversary) and of his arbitrator. Seld, that, inasmuch as it was not shown that the parties were influenced by corrupt motives, or were affected by the luncheons; the award could not be set aside on the ground of the luncheons. Moseley v. Simp- son (Eq. C), VI, 728. , 8i Irregularities in the mode of conducting an arbitration may be waived by continuing the arbitration after they have been discovered. lb. 9. A reference was made to three arbitrators, one to be appointed by each of the parties, and' one by the arbitrators sa chosen. The parties selected their arbitrators, and they selected another whom they erroneously appointed as umpire, and the sittings were commenced without him. Held, that the irregularity was waived by commencing the proceedings de novo after the mis- 16 AEBITEATOE. ASSIGNMENT. take was discovered, and by an agreement signed by the parties by which they agreed not to impugn the award on any ground. lb. See Damages ; Pabtnbrship. ARBITRATOR. 1. Who is. A person who undertakes for a reward to perform the duties of a valuer of property is not an arbitrator, nor is he exempt as such from suit for a failure to exercise due skill and diligence, even where he acts for one party ; and in case of a disagreement between him and the valuer of the other party, an umpire is to decide it. Turner v. Goulden (Com. PI.), VIH, 884 2. Liability for want of skiU and care. If one, to whose decision parties agree to submit a difference between them, discharges his duty faithfuUy and honestly, he is not liable to an action by them for a want of skill or care, even though he holds himself out as a professional man, having skill in such mat- ters. ^Jiarsis Sulphur, etc., Co. v. Loftm (Com. PI.), IV, 382 ; S. P.,Pappa v. Rose (Exch.), Ill, 375. ARCHITECT— ;S6« Conthact; Peincipal and AGiara. ARREST. Without warrant. On a charge of felony an arrest without warrant is proper, and if defendant breaks prison he is guilty of an escape. Begina v. Waters (Cox's C. C), V, 469. See Criminal Law. ARSON— S«e Criminal Law. ASSAULT — jS«6 Criminal Law; Master and Servant. ASSENT — /See Carrier; Contract; Criminal Law; Partner; Public Company. ASSESSMENT — See Landlord and Tenant; Municipal Corporation. ASSETS— iSee Bankruptcy; Partnership. ASSIGNEE. Expenses. The expenses of a general assignee in obtaining a valuation of the debtor's estate, and in paying for assistance in managing the business, are proper, and may be sanctioned after made. JEx parte Gordon ; In re Gom- ersall (Eq. C), XIII, 809. See Baitkrtjptcy ; Rent. ASSIGNMENT. 1. Equitable ; what is. B. consigned to the defendants by the ship Acacia, a cargo which had been purchased at the joint risk of himself and the defend- ants, and advised them of the particulars of bills which he had drawn against the cargo, payable to his own order. The defendants replied, promising to ASSIGNMENT. 17 protect the bills. B. indorsed to the plaintiflfe three of these bills, which ran, "Pay to the order of myself the sum of & sterling, which place to ac- count cargo per A." B. having stopped payment, the defendants refused to accept the bills, but, after selling the cargo, offered to pay to the plaintiffs the surplus of the proceeds, after satisfying a balance due to them from B. on the general account between them. The plaintiffs refused to accept this, and filed their bill, claiming a lien for the full amount of the three bills. Held, that the plaintiffs had no lien on the proceeds of the cargo. Rdbey & Go.'s Iron Works V. Oilier (Chan. App.), Ill, 571. 2. B. having a fund in his hands belonging to C, held, that a bill of exchange drawn by C. on B. for the exact amount of the fund was not an equitable assignment. 8hand v. Du Buisson (Eq. C), IX, 803. 3. A check is not an equitable assignment of the dra,wer's balance at his bankers. Sopkinson v. horsier (Bq. C), XI, 685. 4. A representation by the drawer that bills of exchange drawn upon L. will assuredly be paid, for that the drawer has previously remitted to L, funds to a much larger amount, in consequence of which representation B. purchases those bills from the drawer, does not amount to an equitable assign- ment by him of the funds in the hands of L., nor to a specific appropriation, out of those funds, of the amount of each of those bills. Citizens' Bank of La. V. First Nat. Bank of N. 0. (H. of L.), VII, 56. 5> Where, therefore, such an assurance had been given, and the funds in the hands of L. were larger than the amounts of the bills drawn upon him, but the bankruptcy .of the drawer took place before the bills were payable, L. -was held to be j ustified in refusing to pay the particular bills and in handing over the funds to the legally appointed receiver of the bankrupt's estate, who demanded them on behalf of the general creditors of the drawer. lb. 6. L. was a banker in England and had dealings with N. 0., a banker and bill dealer in America. The course of business was, that N. 0. remitted funds to L., and then drew bills on L. and sold those bills in America to per- sons who wished in that way to make payments in England. ■ N. O. had repre- sented to intending purchasers of these bills that they would certainly be paid, for that " the bills were drawn expressly [or " specially "] against funds to a much larger amount already remitted to L.,'' and on the faith of this assurance they were purchased. Held, that this did not amount to a contract entitling the purchaser of any one of the bills to a specific portion of the funds in the hands of L. lb. '7. A writing opening a credit for a particular sum cannot of itself con- stitute an equitable assignment or specific appropriation of that sum, so as to create a trust. It is a mere statement that the person writing it will act as paymaster to the person to whom it is written, up to a certain amount, on his performing the conditions set forth in it. Morgan v. Larvoiere (H. of L.), XII, 52 ; reversing S. C, III, 499. 8. L. entered into a contract (dated the 30th of November, 1870) with the French minister of war, represented by J., liiB delegate at London, to sup- ply 30,000,000 of ball-cartridges of a certain quality, the whole to be supplied by the 10th of January, 1871. Time was to be considered of the essence of the 3 18 ASSIGNMENT. ATTOENEY, contract. L. .desired some arrangements to be made as to payment. M. & Co., who acted in London as financial agents for tlie French government, wrote to L. a letter, dated the tst of December, 1870, in these terms : " We are instructed by J. to advise you that a special credit for the sum of £40,000 has been opened with us in your favor, and that it will be paid to you ratably as the goods are delivered, upon receipt of certificate of reception issued by the French ambassador or by J." The goods were not delivered according to the contract. Held, that this letter did not constitute Messrs. M. & Co. trustees for L. as to the sum named, nor constitute an equitable assignment as of a fund in their hands, and that consequently this was not a matter for the exercise of the jurisdiction of the Court of Chancery. lb. 9. Of chose in action. Priority. An officer in a regiment assigned the money to arise from the sale of his commission to two assignees separately. He obtained leave to sell out, and the two assignees gave to the agents of the regiment simultaneous notices of their incumbrances. £450, forming part of the money which the officer would receive, came from a particular fund in the hands of the agents, held by them subject to the directions of the Horse Guards. Six days after the notices had been given, a letter was sent from the Horse Guards, the purport of which was communicated by the agents to the officer, requesting the agents to transfer £450 from the fund to the officer. The first assignee then gave a second notice. The agents sent a form of receipt to the officer, which was returned by him signed, before which the £450 was not issuable by the agents. The second assignee then gave a second notice. Held, that the first assignee had priority over the second assignee. Addison v. Oox (Chan. App.), IV, 765. See Bahkbtjptcy ; Contract ; Exbctjtoks, Etc. ; Libn ; Tktists, Etc. ATTACHMENT. Accruing debt. Under s. 61 of the Common Law Procedure Act, 1854, an order may be made not only attaching an accruing debt in the hands of the garnishee, but also an order for payment of the accruing debt when it shall become payable by the garnishee to the judgment creditor. It is not neces- sary to wait till the debt has become actually payable before making the order for payment. Tapp v. Jones (Q. B.), XIV, 388. See Assignment ; Contempt ; Estoppel ; Jubisdiction ; Lex Loci. ATTEMPT. What is. Sending a letter which solicits and entices the commission of a crime will, if such letter is intercepted and never reaches the person to whom it was addressed, render the sender liable for an attempt to solicit and incite. Regina v. Banks (Cox's C. C), V, 471. Bee Criminal Law. ATTESTATION — 5ee Wills. ATTORNMENT — See Landlord and Tenant. ATTORNEY. 1. Authority to compromise. By the French law, as preyailing in Canada, an avocat and avou^ cannot bind his client by a compromise of his suit ; yet an ATTOENEY. 19 awue may bind such client until disavowal, by any proceeding in the cause, though taken without his client's authority, or even in defiance of his prohi- bition; and the disavowal must be made within a reasonable time. King v. Pinsoneault (Priv. 0.), XII, 137. 2. Lien on papers. A solicitor cannot set up a lien upon papers acquired by him in a suit as against the rights of other parties in the cause to have them produced. Vale v. Oppert (Chan. App.), XII,'748. 3. B. acted as attorney for Q. in an action which resulted in G-.'s. recover- ing a large sum. A bill was filed by persons claiming through G. to establish their equitable title to that sum, and in February, 1871, the defendant in the action paid the sum recovered into court to the credit of the cause in which B, was a defendant, in respect of his lien. In March, 1871, B. delivered his bill of costs in the action to G, In December, 1873, the suit was compromised and the fund distributed, except a sum kept in court to answer B.'s claims. Jleld, that B. was not entitled to have his bill of costs paid out of the fund without taxation, however the case might have stood, if his bill had been delivered at such a time that Or.'s right to tax it would have been lost before the fund was paid into court. De Bay v. Orvffin (Chan, App.), XII, 731. 4. Solicitors for the trustees of an estate which is under the administra- tion of the court have not, after their discharge, such a lien for costs and money advanced in the suit as will enable them to refuse production of docu- ments which are required by the receiver for the management of the estate. Belaney v. Ffretieh (Chan. App.), VII, 471. 5. Sulgect to set-off. In an action to recover costs adjudged to the plaintiff on orders having the force of a judgment of nonsuit, in a former suit brought by the defendant against him in Ireland, the defendant is entitled to set off judgments recovered by him in other suits against the plaintiff in Ireland, not- withstanding any lien which the plaintiff's attorney in the suit wherein the nonsuit was obtained may have on the gosts therein ; and a replication to a plea of set-off in such a, case, that the plaintiff owes such attorney the full amount of such costs, and that the attorney has a lien thereon, and the plain- tiff is, therefore, a trustee for the attorney and sues as such, is bad, because the fact that an attorney has obtained a judgment for a client, and that costs are due to the attorney, does not raise the relation of trustee and cestui que trust between the client and the attorney with respect to the proceeds of such j adgment ; and the so-called lien of the attorney is merely a claim to the pro- tection of the court, as to his costs, when the equitable interference of the court is asked for the purpose of setting off one judgment against another. Meraer v. Graves (Q, B.), II, 618. 6. On property recovered. The defendant, having recovered a sum of money In an action brought by him against M. B., the defendant's attorney in that action had taken out a summons for an order charging his costs in such action upon the sum recovered. The plaintiff afterward, having recovered judgment in his action against the defendant, obtained an ex parte garnishee order attaching the sum recovered by defendant against M., in execution. Under these circumstances the parties came before a judge at Chambers, B. claiming to have a charging order on the judgment debt as property recovered within the 38th section of 33 & 34 Vict., c. 137, and the plaintiff claiming an JiO ATTOENBY. AUCTION SALE. order on M., to pay the Bum attached to him. The judge made an order in favor of B. Held, that he was right in so doing ; that the sum recovered was property within the section, and that the attorney was entitled to priority. Birehall v. Pugin (Com. PI.), XII, 458. 7 A solicitor is entitled to a charge for his costs on property the sub- ject of a successful suit conducted by him against an incumbrancer, although the incumbrance be entirely valueless, provided it formed a cloud upon the title. Jories v. Frost; In re Fiddey (Chan. App.), Ill, 622. 8. It is no objection to an application for such a charge, that it is made in a suit which is no longer pending, and which was never brought to a hear- ing, nor that the property has been sold before the application of the solici- tor, lb. 9. Ijiability for negligence. A bill will not lie against a solicitor for negli- gence in investigating a title. British Mut. Investment Go. v. Cobbold (Eq. C), XIII, 556. 10. When charged with costs of suit. A suit which had been instituted to set aside certain deeds and documents by which the plaintiff had conveyed away the whole of her property, and to recover back the property lost by means of them, was defended on behalf of the party who claimed under the deeds by the solicitor who had prepared the documents sought to be im- peached. The bill was then amended by making the solicitor a party for dis- covery and asking that he might be ordered to pay the costs of the suit. The amended bill also contained charges of improper motives against him, which were not sustained. Held, that his having defended the suit on behalf of the principal defendant, and endeavored to support the transactions sought to be impeached, in addition to want of caution in the preparation of the documents themselves, were sufficient reasons for ordering him to pay the costs of the suit if the estate sought to be made liable were insufficient to pay them, not- withstanding that the charges against him were not sustained. Baker v. Loader (Eq. C), VI, 634. 11. It was an additional circumstance against him that, when he acted as solicitor in the suit, he knew that the estate sought to be made liable would probably not be able to pay the costs of the suit. lb. 12. Privilege. The court will not make an order upon a solicitor compell- ing him to disclose the address of his client (a defendant) who has absconded, and whom plaintiff seeks to serve with a subpcena duces tecum to compel his appearance at the hearing with documents material to the plaintiff's o^se. Heath V. GreaXock (Eq. C), V, 836. See Baskruptct ; Cohporatiqns ; Criminax, Law ; Fratjd ; Mortgage ; Trtibtb. AUCTION SALE. 1. Resale. In order to entitle parties to open the biddings after a sale by auction under the court since the passing of the Sales of Land by Auction Act, 1867, there must be either fraud or such misconduct as borders on fraud. Bel-oes v. DeUea (Eq. C), XIII, 632. 2. In order to j ustif y the presumption of such misconduct, there must be some impropriety of conduct, not merely error of judgment, which shows that AUCTION SALE. BAILMENT. 21 the owners of the estate have not been fairly dealt with, or that matters have been so contrived that the fair value of the property has not been realized. lb. 3. Property withdrawn from sale. In an action against an auctioneer, who advertised in the London papers that certain brewing materials, plant and office furniture would be sold by him at Bury St. Edmunds, on a certain day and two following days by a commission broker in London, who, having a commission to buy the office furniture, went down to the sale, to recover for his loss of time and expenses, because the same was withdrawn from sale on the third day, held, that plaintiff could not maintain the action; for that the advertising the sale was a mere declaration, and did not amount to a contract with any one who might act upon it, nor to a warranty that all the articles advertised would be put up for sale. Harris v. Nickerson (Q. B.), V, 338. AUTHORITY — See Master and Sebvant ; Pbikcipal and Agent. AUTREFOIS ACQUIT — See Criminal Law. AVERAGE — See Instjrancb, Mabinb. AWARD — See Arbitkation. BAGGAGE — 5«« Caerier. BAILMENT. 1. Iilability of gratuitous bailee. C, a merchant domiciled at Alexandria, being indebted to the appellants, merchants carrying on business at Leipsic, for the purpose of settling litigation between them, deposited with the re- spondent (an English merchant resident at Alexandria) certain bills drawn in his favor as security for the appellants' debt ; the respondent, by the agree- ment between C. and the appellants, constituting himself a voluntary depositee of them, and undertaking to be responsible for them to the appellants " until the effective encashment of them, which remains intrusted to C." Held, that the respondent was not guilty of a breach of duty under this agreement in allowing C. to take the bills when due, for encashment at his discretion, and was not bound to see that C. handed over the money to the appellants. Trefftz V. GaneUi (Priv. C), III. 146. 2. Liability for refasal to deliver. Certain cases of wine were ordered by L. of the plaintiff, and were shipped by the plaintiff consigned to L., who deposited the bill of lading with the defendant, a wharfinger, with directions to take delivery and warehouse the wine on L.'s account. The wine, on its arrival, was entered at defendant's wharf in L.'s name, subject to a stop for the freight. L. afterward refused to accept the wine on the ground -that it was not according to contract ; the plaintiff agreed to take it back, and L. promised to send a delivery order to enable the plaintiff to obtain it ; but on the same day L. indorsed the bill of lading to M., which M. took to the defend- ant's wharf and procured a transfer of the wine into his own name. The plaintiff was afterward informed by L. that the wine was at the disposal of the plainrtiff, but subject to charges amounting to 111. 148. QtZ., and 51. for loss of profit. At an interview between M. and the plaintiff, M. offered to give up the wine on payment of the above sums. The plaintiff tendered the former 22 BAILMENT. sum, which M. would not accept. The plaintiff's attorney afterward offered to the defendant to pay all charges, and to indemnify him against the claim of any other person. . The defendant refused to deliver the wine to the plain- tiff, alleging that he 'had given warrants to M. The. wine was ultimately delivered to a third person hy M.'s order. M. had in fact paid the freight, and obtained warrants to him or his order. The jury found that the transaction between M. and L. was colorable, and with knowledge on the part of M. of the intention of L. to deprive the plaintiff of the wine. Eeld, power having been reserved to the court to draw inferences of fact, that the defendant re- ceived the wine as bailee to L., and after the payment of the freight could have no better title than his bailor ; that by the finding of the jury M. had no better title than L. ; and, as the plaintiff had tendered the amount of charges both to M. and the defendant, the plaintiff's title was as valid against the defendant as it would have been against L. ; and that the defendant was liable to the plaintiff for the value of the wine. Batut v. Hartley (Q. B.), Ill, 314. 3. for want of care. Where a livery stable keeper undertakes for reward to receive a carriage, and lodge it in a coach-house, the case comes within the second class of the fifth sort of bailment mentioned by HotT, C. J., in Ooggs v. Bernard (3 Ld. Eaym. at pp. 917-918), viz., a delivery to carry or otherwise manage for reward, to a. private person, not exercising a public employment ; and he is bound to take reasonable care. Searle v. Laverick (Q. B.), VIII, 398. 4. The obligation, to take reasonable care of the thing intrusted to a bailee of this class, involves in it an obligation to take reasonable care that any building in which it is deposited is in a proper state, so that the thing deposited may be reasonably safe in it ; but no warranty or obligation is to be implied by law on his part that the building is absolutely safe. lb. 5. The fact that the building has been erected for the bailee on his own ground makes no difference in his liability. lb. 6. The plaintiff brought his horses and two carriages to defendant, a livery stable keeper ; the carriages were placed under a shed on defendant's premises, a charge being made by defendant in respect of each. The shed had just been erected, the upper part being still in the hands of workmen. Defendant had employed a builder to erect the shed for him, as an inde- pendent contractor, not as defendant's servant, and he was a competent and proper person to be so employed. The shed was blown down by a high wind, defendant being ignorant of any defect in it, and the carriages were Injured; upon which plaintiff brought an action against defendant. At the trial, the above facts having been admitted, th6 judge rejected evidence to prove that the fall of the shed was owing to its being unskill fully built through the negli- gence of the contractor and his men ; and he nonsuited the plaintiff, ruling that the defendant's liability was that of an ordinary bailee for hire, and that he was only bound to take ordinary care in the keeping of the plaintiff's car- riages, and that, if he had exercised in the employment of the builder such care as an ordinary careful man would use, he was not liable for damage caused by the carelessness of the builder, of which he, defendant, had no notice. HM, that the nonsuit and ruling were right. lb. BAILMENT. BANKS AND BANKING. 23 7. on warranty of fitness. The plaintiff, a cab-driver, obtained from the defendant, a cab proprietor, a horse and cab upon the usual terms, viz., that the driver, on bringing them back at the end of the day, should hand over to the proprietor 18s., retaining for himself all the day's earnings over that sum — the day's food for the horse being supplied by the owner, and the latter having no control over the driver after leaving the yard. The horse with which the plaintiff was furnished, which was fresh from the country, and had never before been harnessed to a cab, overturned the cab, and injured the driver. In answer to questions put to them by the judge, the jury found that the horse was not reasonably fit to be driven in a cab ; that the plaintiff did not take upon himself the risk of its being reasonably fit to be so driven ; that the defendant did not take reasonable precautions to supply the plaintiff with a reasonably fit horse ; and that the horse and cab were intrusted to the plaintiff as bailee, and not as servant. A .verdict having been thereupon entered for the plaintiff, the court refused to disturb it. FowUr v. Look (Com. PI.), XI, 368 ; S. C. below, II, 586. (Sse Cabkiek; CuiMEsrAii Law ; Ihnkebpbr; Master amd Servant; Negligence. BANKS AND BANKING. 1. Appropriation of remittances. Customers of country bankers paid into the bankers a sum of money in bank notes, and also some bills of exchange, to be remitted to London in order to meet certain acceptances. The bankers sent to their London agents the bills and some bank notes, with a letter direct- ing them to pay a certain sum of money ; also giving them notice of the acceptances as payable at their bank, and giving directions as to other busi- ness. The country bankers stopped payment, owing a large balance to the London bankers. Held, that, as between the country customers and the Lon- don bankers, there was no appropriation of the bills and notes to meet the acceptances, and that the London bankers could retain the bills and notes without meeting the acceptances. Johnsan v. Bobarts (Chan. App.), XIV, 751. 2. G. was in the habit of drawing bills on Y. and of sending him bills to put him in funds to meet them. A separate account of these transactions was kept, styled " No. 1 account," and the letters inclosing the remittances di- rected them to be placed to Gt.'s credit iu Account No. 1. Accounts were made out half yearly. Each remittance was entered under the date when the bill came to hand, but if it became payable before the close of the account, G. was credited with interest for the interval between the day of its falling due and the close of the account. If it fell due after the close of the account, he was debited with interest for that period. If a remitted bill was dishonored, G. was debited with the costs, and entries of principal and interest were made on the opposite side of the account so as virtually to strike the bill out of the ac- count. T. stopped payment, and made a statutory composition of 3s. 4d. in the pound with his creditors, including the holders of his outstanding accept- ances for G. At the time of the stoppage if he was credited with only 3s. id. in the pound on these acceptances, the balance was in favor of Q. without taking into account a number of bills remitted by G. and still remaining iu specie. G., who was domiciled in Spain, shortly afterward entered into some composition with his creditors, but its nature did not appear. The registrar 24 BANKS AND BANKING. BANKEUPTCY. decided that the remittances remaining in specie belonged neither to the bill- holders, nor. to G. but to T. Q. appealed, but the bill-holders did not. Seld, that the remittances were appropriated to No. 1 account, and that, as T. had been fully reimbursed all that he had paid or was liable to pay for G. on that account, the remittances remaining in specie belonged to (i. Ex parte Gomez; In re Tglesias (Chan. App.), XIV, 839. 3. Protection against forged indorsements. The 19th section of 16 & 17 Vict., c. 59, which protects the banker upon whom a check is drawn against the forgery of the indorsement of the person to whose order it is made paya- ble, does not extend to protect any other person who takes the check upon the faith of such forged indorsement. Ogden v. Benas (Com. PI.), X, 383. 4. The defendant, the salaried manager of a bank, was appointed treas- urer to guardians of the poor under the Poor Law Consolidated Order. A treasurer's account between him and the guardians was duly kept according to the Poor Law Orders ; moneys were from time to time paid into the bank of which he was manager to the account of the guardians, and orders signed by the guardians in conformity with the orders were cashed like checks payable to order. The defendant received no salary or remuneration, and the guardians received interest on their balance when it exceeded £3,000. A person in the service of the clerk to the guardians, who was employed to fill up the orders for signature by them, drew a number of orders in such a way that the. amounts for which they were drawn could be increased by the insertion of words and figures in the blank space's ; and after signature of the orders he increased the amounts accordingly. He also forged indorsements to orders so increased in amount, and to others not so increased, and obtained payment of them at the bank. On a case stated by an arbitrator in an action brought by the guardians against the defendant for the amount of the orders so paid, it was found as a fact that the payment by the treasurer's clerks of the excess was due solely to the fact that tliey were misled by want of proper caution on the part of the plaintiflB and their clerk in signing the orders fraudulently prepared for their signature. Held, first, that the negligent drawing of the orders disentitled the plaintiifs to complain of the payment of the excess. Guardians of Halifax Union v. Wheelright (Exch.), XII, 617. 5. Secondly, that as to the payment on forged indorsements the account at the bank was in effect the plaintiffs' account ; . that the bank was protected by 16 & 17 Vict., c. 59, s. 19 ; and that as by the act and direction of the plain- tiffs the only receipt of moneys on their behalf was a receipt by the bank, the defendant was not chargeable in any other way than as the bank was charge- able ; and further, that if the account at the bank were regarded a;s the de- fendant's account, still being so kept by the order of the plaintiffs, they could not make any claim against him which he could not enforce against the bank, lb. See Assignment; Bona Fidb Holdbr; Set-off; Principal and Agent. BANKRUPTCY. I. Jurisdiction 25 II. Act of bankruptcy 36 III. Pbtitiohinq cbbditor 33 BANKRUPTCY. 25 IV. Debts and peoop thereof 39 V. What PKorERTT passes to trustee 31 VI. BBCEIVER AND TRTISTEB ; DUTIES; ACilONS BY AND AGAINST, 37 VII. Protected transactions 39 VIII. Execution and other liens 41 IX. Practice 48 I. Jurisdiction. 1. Claim against third party. Where a suit would, but for the fact of a bankruptcy, be fit to be entertained by the Court of Chancery, the jurisdiction is not taken away by the Bankruptcy Act, 1869. Therefore, when a trustee in bankruptcy has, in respect of the bankrupt's estate, a claim against a third person, that claim may be prosecuted at law or in equity, and is not subject to the jurisdiction of the Court of Bankruptcy. Ellis v. SiWer (Chan. App.), IV, 771. 2. Resident trader. The 59th section of the Bankruptcy Act, 1869, provides that if the person sought to be adjudged a bankrupt reside or carry on busi- ness within the London Bankruptcy District, " the court " shall mean, for the purposes of the act, the Court of Bankruptcy in London, but that, if the per- son sought to be adjudged a bankrupt do not reside or carry on business within the London Bankruptcy District, " the court " shall mean the County Court of the district within which he resides or carries on business. A bank- ruptcy petition in the form required by the bankruptcy rules, containing, among other necessary allegations, a statement that the debtor did not reside or carry on business In the London district, was presented to the County Court of the district in which the debtor resided; accompanied by the usual aflldavit of verification required by the rules. The debtor did not appear on ihe hear- ing, and the County Court adjudicated him a bankrupt in the usual form. The debtor did, in Jjoint of fact, carry on business within the London district under an assumed name. Seld, that the adj udication was not void, notwith- standing that the bankrupt did in fact carry on business in Loudon, but merely irregular, and could only be questioned by proceedings in the way of application or appeal to the Court of Bankruptcy itself. Hevell v. Blake (Com. PL), VI, 236. 3. In order that the 87th section of the Bankruptcy Act, 1869, may be applicable, it is not necessary that the debtor should have been adjudicate bankrupt as a trader, but only that he should be in fact a trader. lb. 4. An alien non-trader domiciled abroad, who contracts debts in England, is liable to be made a bankrupt under the Bankruptcy Act, 1869, if he com- mits an act of bankruptcy in England, although he may have left England before the petition for adjudication is presented. But he cannot be made a bankrupt upon an alleged act of bankruptcy committed abroad. In re Cris- pin (Chan. App.), V, 600. 5. A non-trader, a subject of, and domiciled in, Portugal, contracted a debt in England, where he was temporarily resident. The creditor served him, while in England, with a writ issuing out of the Court of Exchequer. The alien entered an appearance to the writ and left England for Portugal the next day, alleging as his reason for doing bo that he had been disappointed of 4 36 BANKRUPTCY. some money whicli he expected, and could not pay his way in England. He afterward said that he had left England in consequence of being served with the writ. Held, that there was no sufficient evidence that he left England in order to defeat and delay his creditors, and that no act of bankruptcy had been committed. lb. 6 Although, in the case of a domiciled Englishman, the fact of Ms leaving England after service of a writ, and so escaping a debtor's summons, would afford a strong presumption that he intended to defeat and delay his creditors, yet the same presumption does not apply to a, foreigner who is returning to his own country. lb. 6. Trader, who is. The Bankruptcy Act, 1869, has no retrospective opera- tion, and where it speaks of traders it means such persons only as were traders at the time when it first came into operation. Therefore, where a person has ceased to trade in 1868, but in 1871 owed various debts contracted during the period he was in trade, held, that he was not a trader within the meaning of the Bankruptcy Act, 1869. Bx parte BaUey ; In re Jecks (Eq. C), I, 703. II. Act of bankruptcy. 7. Assignment of property. A debtor executed as security for an ante- cedent debt of £1,500 an assignment which included all his property of any appreciable value, except a pension of 10s. Qd. a day, to which he was entitled as a retired servant of the East India Company. Meld, that as this pension would not pass to a trustee in bankruptcy, and could not be taken in execu- tion by a creditor, it constituted no substantial exception from the assignment, which, being an assignment of substantially the whole of the debtor's prop erty, was an act of bankruptcy. Ex parte Hawker ; In re Keely (Chan. App,), I, 503. 8. One of two partners in trade assigned the whole of his separate assets, and gave a power of attorney to assign all his personal property, as security for a previously existing separate debt. The partnership was at this time insolvent. Held, that the execution of the deed was an act of bank- ruptcy, notwithstanding the fact that none of the partnership assets were in terms included in t}ie deed. Ex parte Trevor; In re Burghardt (Chan. Div.), XV, 752. 9. Fraudulent conveyance. The defendant received from M., a member of a trading firm, a bill of lading for brandy, for the purpose of landing a,nd warehousing it, which he did, entering the brandy (at M.'s request) in his own name, and paying charges amounting to £47. Afterward, and whilst he still had the bill of lading in his possession, an acceptance which had been given by the firm to the defendant for the hire of a ship falling due, and the firm not being able to meet it, the defendant consented to take M.'s acceptance at seven days for a balance of account, including the hire and the £47, upon receiving M.'s authority to sell the brandy, if the bill were not met. This acceptance not being met, the defendant sold the brandy. The firm were afterward adjudicated bankrupts, and the trustee sued the defendant in trover for the value of the brandy. The transaction was bona fide, but the brandy formed in fact the whole property of the firm. Held, that the transaction BANKRUPTCY. 2? under which the defendant obtained power to sell the brandy was not a " fraudulent conveyance, gift, delivery or transfer," within the meaning of the Bankruptcy Act, 1869, § 6, subd. 3. Philps v. Eomstedt (Exch.), IV, 424. 10. P. recovered judgment for a sum exceeding £50 from a trader, and on the Sth of August lodged an execution in the hands of the sheriff, who seized six of his liorses. On the llth of August, before any sale had been made by the sheriff, the debtor agreed with P. to sell him the six horses which the sheriff had seized for the amount of the debt and the sheriff's charges ; and P. accordingly withdrew the execution, but he left the horses in the debt- or's stables, and signed an agreement to let the debtor have the use of them for a certain payment per day.' On the 15th of August P. removed the horses, and soon afterward sold them for about the same price as he gave for them. The debtor was at the time of the sale insolvent, and on the 15th of August he filed a petition for liquidation, and trustees were appointed, who claimed the price of the horses from P. Held, that the sale of the horses to the exe- cution creditor, having been made for the purpose of avoiding a sale by the sheriff, was a fraudulent transfer under the second sub-section of the sixth section of the Bankruptcy Act, 1869, and was void against the creditors. Bx parte Pearson (Chan. App.), VI, 569. H. But, semUe, it would not have been fraudulent if the debtor had been' solvent. lb. 12. Seld, also, by Jambs, L. J. (diasentiente Mellish, L. J.), that the seizure by the sheriff, followed by the sale by the debtor to the creditor, con- stituted a seizure and sale within the fifth sub-section of the sixth section, and an act of bankruptcy. lb. 13. Held, also, by Jambs, L. J. {duMtante Mellish, L. J.), that the sale was a fraudulent preference of the creditor. lb. 14. Fraudulent preference. A guaranty given by a third party to the creditor of a bankrupt that such creditor shall not lose more than a sum specified, to induce such creditor to withdraw opposition to a compromise of such bankrupt's debts, is an agreement for a fraudulent preference, and is, therefore, void. McKewan v. Sanderson (Bq. C), XllI, 611. 15. L., being on the eve of bankruptcy, drew out all his balance at his bankers, and sent it to K., who was employed by him as accountant, and to whom he owed a considerable sum. His obj ect in sending the money to K. was to prevent its being attached by another creditor who had issued a writ against him. K. took back the money,, and refused to accept it unless the debtor consented to his paying himself out of it. After some discussion, the debtor agreed to this, and K. accordingly appropriated £431, part of the sum intrusted to him, in satisfaction of his own debt. The evidence did not estab- lish that there had been any thing which amounted to pressure for payment on the part of K. before the occasion on which he took back the money to L. Three days afterward L. stopped payment, and soon afterward presented his petition for liquidation. _ Held, that the act of the debtor in drawing out the balance from the bankers for the purpose of defeating the creditor who was suing him was in itself an act of bankruptcy, and that the payment of the £421 to K. was a fraudulent preference. EalMday, Matter of (Chan. App.), IV, 893. 28 BANKRUPTCY. 16. A creditor suggested to his debtor that the latter should buy goods on credit from other persons, and should, with the proceeds of their sale, pay- off the debt due to the former. The debtor adopted the suggestion, and out of the proceeds of the sale of goods, which he obtained on credit, he made sev- eral payments on account of the debt. There was evidence that the payments were made under pressure from the creditor. The debtor afterward filed a liquidation petition. Held, that, as the transaction was fraudulent in its incep- tion, it was immaterial that the payments were made under pressure, but that they must be set aside as being fraudulent preferences. Ex parte Reader ; In re Wrigley (Eq. C), XV, 604. 17. Non-payment on debtor summons. The omission of a joint-stock company to comply with a statutory notice requiring payment of a debt, se^-ved by a creditor on the company under the Companies Act, 1863, § 80, subs. 1, is not " neglect " within the meaning of that sub-section, unless there is no reasonable cause for the omission. In re London, etc.. Banking Go (Eq. C), XII, 833. 1 8. A creditor who has served such a notice is not entitled to a wind- ing-up order if the company bona fide dispute the debt, and there is no evi- dence of the insolvency of the company (other than the non-compliance with the notice), and insolvency is denied on the part of the company. lb. 19. Where a creditor, whgse debt was disputed, served such a notice, and, at the expiration of three weeks, filed a petition to wind up the company under circumstances which, in the opinion of the court, showed that the object of the petition was not to obtain a winding-up order, but to put pressure on the company. Meld, that the petition must be dismissed with costs. lb. III. Pbtitioning ckbditor. 20. A creditor who holds garnishee orders covering sums due to the debtor to an amount exceeding the debt due to the creditor can nevertheless obtain a debtor's summons against the debtor, and proceed thereon to have him adjudged a bankrupt. Ex parte Tupper (Chan. App.), VIII, 879. 21. Disputed claim. A creditor of a solvent company, whose debt is bona fide disputed, will be restrained from presenting a petition for winding up the company until his debt is established. Cadiz Waterworks Co. v. Barnett (Bq. C), XI, 774. 22. A contractor entered into a contract with a company for the execu- tion of certain works for the sum of £290,000, of which £300,000 was to be paid in cash, and the rest in paid-up shares. The contractor had received £203,000 in cash, and a large number of shares, but he claimed to be entitled to a further sum of £30,000. The company disputed the claim and alleged, on the contrary, that the contractor had been largely overpaid. The contrac- tor threatened to present a petition to wind up the company, and served on the company a demand under the 80th section of the Companies Act, 1863. Held, that, there being no proof of the company being insolvent, and the alleged debt of the contractor being bona fide in dispute, the contractor must be restrained from presenting a petition to wind up the company. lb. BAJ^fKRUPTOY. 29 IV. Debts and proof thkbkof. 23. Claim for indemnity. A claim by one wlio had transferred stock to another, to be indemnified for calls which he had been compelled to pay- thereon after the transfer, is not provable under s. 153 of the Bankruptcy Act of 1861 against the estate of the transferee. Kelloek v. Enthmen (Q. B.), VIII, 324; affirming S. C, VII, 73. 24. Acceptances. A merchant in Bombay bought from a bank, bills on their London branch for £35,000, giving for them £5,000 in cash and £30,000 in bills on a firm in London,- consisting of himself and another person. The bank bills were all indorsed to the firm in London and were all accepted. The merchant's bills were sent to the London branch of the bank and were accepted by the London firm. The bank was wound up, and the merchant and his partner each became insolvent, the London firm, holding at the time of the winding-up bills to the amount of £19,000, and the bank having parted with the bills for £20,000. Held, that under the circumstances the bills were not accommodation bills, and that the trustees of the London firm were enti- tled to prove for the £19,000 in the winding-up. In re London, etc., Bank ; Ex parte Gama (Chan. App.), X, 668. 25. Held, also, that the principle as to proving for cross-accommodation bills does not apply when the bills are in the hands of third parties. lb. 26. The trustees of the London firm had sent in a previous claim to prove for £5,000, taking that amount as the balance between the bills for £25,000 and the bills for £30,000, and not being aware that the bank had parted with the bills for £30,000. At the time of the previous claim the trus- tees held securities which had since been realized by them. Held, that, not- withstanding the previous claim made by mistake, the trustees might prove for the £19,000, and that the claim would be considered as made when the previous claim was made, so that the trustees representing the London firm were not bound to give credit for the money received by realizing the secu- rity, lb. 27. Advances. M. lent certain sums to T., a trader, under a written agree- ment pursuant to 38 & 89 Vict., c. 86, by which M. was to receive in lieu of interest £40 per cent on the profits of T.'s business, and after a certain period was to have liberty to determine the agreement at any time, in which event the money was to be repaid by installments secured by bills of exchange. While this agreement was in force M., in conjunction with H., lent T. other sums of money, for which interest at £10 per cent was to be paid. M. deter- mined the agreement, and T. gave M. bills of exchange for the moneys ad- vanced under it, except certain profits which were carried over to the £10 per cent account ; but M. and H. went on advancing to T. other sums on the £10 per cent account. After all the trade debts of T., which had been due during the pendency of the agreement, had been paid, T. became bankrupt. M. carried in a proof for the moneys advanced under the agreement, and M. and H. carried in another for the balance on the £10 per cent account. Held, that M. could not prove for the moneys advanced under the agreement, though all other debts existing during its continuance had been paid. Ex parte Mills (Caian. App.) VI, 496. 30 BANKEUPTOY. 28. Hdd, that M. and H. could prove for all moneys lent at interest without any stipulation as to profits, whether such moneys were advanced before or after the determination of the agreement, and that although there could not have been a proof for the whole of the balance if it had in part consisted of profits, yet as according to the ordinary mode of attributing pay- ments in an account current the profits carried to this account had been dis- charged by payments made by T. on account, the balance could not be treated as in any measure arising from profits, and the proof must be for its whole amount. lb. 29. SenMe, if an advance were made under the act, with an agreement for a share of profits, and further sums were advanced without any such agreement, with an intention to elude the act, the lender would be a partner, lb. 30. Damages. A manufacturer of iron contracted, in May, 1871 , to sell to a company 150 tons of iron at a specified price per ton, delivery to be twenty tons per month. The deliveries were not duly made under the contract. In January, 1873, the vendor filed a petition for liquidation by arrangement. At that time a considerable quantity of iron remained to be delivered, and the market price of iron had risen very much. It appeared that in some cases the company had bought iron in the market to supply the deficiency in the monthly deliveries. It did not appear that any actual request had been made by the vendor for the postponement of the deliveries. Held, that the company could prove in the liquidation only for the difl^rences between the contract price of the iron and the market prices of the days when the respective deficient de- liveries were made. Ex parte LlansamUt Tin Plate Oo. (Eq. C), VI, 689. 31. H. entered into a written agreement with S, and A. that he would supply them with steam power for any looms that might be put up in their weaving shed for a term of twenty-on^ years from August, 1858, at a fixed annual rent per loom, payable in advance. In 1865 S. and A. assigned their weaving shed and the benefit of the agreement to W. In 1871 H. mortgaged his mill, which contained the steam power ; and in 1872 he filed a petition for liquidation by arrangement under which a trustee was appointed. The mort- gagee then took possession of the mill and repudiated the agreement. W. was, in consequence, obliged to obtain steam power for his looms at a much higher cost; and he claimed to prove in the liquidation for the injury which he had sustained. Hdd, that the agreement was valid, and that the damages sustained by the owner of the weaving shed were such as could be fairly esti- mated, and that W. was entitled to prove for them in the liquidation. Matter of Waters (Chan. App.), VI, 490. 32. Devastavit by executor. By articles of partnership between W. and T. , it was provided that all the then existing capital, including the premises at which the business was carried on, should belong to W. W., by his will, appointed T. and others, his executors, and gave his executors a limited power to carry on the business. T. alone proved and carried on the business at the old premises, and committed a devastamt by misapplying some of the separate property of W. W.'s estate was insolvent, and was being wound up in chancery. T.'s estate was being wound up under a liquidation by arrangement, in which the joint estate of the late firm was also BANKRUPTCY. 31 dealt with. Held, that a proof could be sustained in the liquidation on behalf of W.' estate against the separate estate of T. in respect of the devastavit, notwithstanding the rule against a partner proving against the separate estate of his copartner. Ex parte WeHcott ; in reWhite (Chan. App.), X, 630. 33. Who may prove. A creditor ot a bankrupt died before the commence- ment of the bankruptcy, and his estate was administered in chancery in a suit instituted by a creditor against the administratrix. The Court of Chancery appointed a person who was not the administratrix to prove the debt against the bankrupt's estate. Held, that the person appointed by the court had a right to prove the debt, and also to vote for the appointment of a trustee at the meeting of the creditors. Ex parte Sare ; In re England {Cha,n. App.), *XII, 711. ' 34. The 67th and 68th rules of the Bankruptcy Rules, 1870, only apply to ordinary cases, and not to proofs by persons appointed by the Court of Chancery or of Lunacy to represent the creditor's estate. lb. '35. It is the settled rule in bankruptcy that a partner cannot prove, under a joint commission against his firm, in competition with the creditors of the firm. Nanson v. Gordon (App. Gas.), XV, 70; affirming S. C, XI, 513. 36. And this rule applies in a case where the partner had died before the bankruptcy, his share had been taken by the other pa*rtners under the provisions of the partnership deed, and the money due in respect of it had not been paid to his executors at the time of the bankruptcy. lb. 37. Reduction of proof. All the parties to certain bills of exchange, the payment of which was secured as between some of them, became insolvent — one of them (a company) being ordered to be wound up. The securities were realized, and the proceeds paid to the bill-holders. After the bills had matured, but before the securities were realized, the holders had proved against the company for the full amount. Held, that the proof must be reduced by the amounts received by the bill-holders from the securities, and any dividends received on the excess of the original over the reduced proof must be refunded. In re Earned' s Banking Co ; Expa/rte Joint Stock Discount Co. (Chan. App.), XII, 704 ; affirming S. C, XI, 635. V. What propbbtt passes to trtjstbb. 38. After-acquired property. When the creditors of a liquidating debtor have passed a resolution granting him his discharge, his after-acquired prop- erty does not vest in the trustee, but belongs to the debtor, although no resolu- tion closing the liquidation has been passed. Ebbs v. Bulnois (Chan. App.), XIV, 729 ; S. P. In re Bennett's Trusts (Chan. App.), 738. 39. The C. Railway Company owed money to P., who was their engin- eer and agent, for preliminary expenses. In the year 1866, before the railway had been commenced, the C. Company sold their undertaking to three other railway companies, and an agreement was executed between them by which the three companies agreed with the C. Company, among other things, tljat the contract for the construction of the railway should be given to P. or his nomi- nee. P. was no party to this deed, but was employed as the agent of the C. Company in preparing it. In 1867, P, executed an inspectorship deed, by which he covenanted that he would get in and realize all his estate and effects. 33 BANKEUPTOY. under the direction of the inspectors, for the benefit of his creditors, to be ad- ministered as in banltruptcy, and also that he would, whenever called upon to do so, assign to tlte inspectors all his estate and effects remaining undivided. And it was provided that as soon as all the said estate should be fully adminis- tered or assigned to the inspectors, the deed should operate as a full discharge to the debtor. In 1871, P. nominated a firm of contractors for the construction of the railway, and received from them a sum of £3,500 for so doing. The inspectors claimed this sum as part of his estate. Held, first, that as P. was not a party to the contract between the C. Company and the other three com- panies, and as there was no evidence that the C. Company had constituted it- self a trustee for him, the expectation of his deriving a benefit from the con- tract was not such an interest as could be affected by the inspectorship deed. Matter of Piercy (Chan. App.), VIII, 705. 40. Secondly, that the Inspectorship deed only afl'ected property which belonged to the debtor at the time of its execution, and that the sum in ques- tion being after-acquired property the inspectors were not entitled to it. lb. , '41. Debts due. Sums retained by bankers against acceptances, and for which they have given marginal notes, are not debts due to the bankrupt in the course of his business within the order and disposition clause. Bankruptcy Act, 1869, H. 15, subs. 5. Ex -ga/rte Kemp; In re Fastnedge (Chan. App.), VIII, 933. 42 The expression " debts due " in that clause is not to be confined to debts presently payable, but, on the other hand, will not include debts which were only contingent at the commencement of the bankruptcy. lb. 43. Separate property. Where proceedings for liquidation have been instituted by partners, and the joint creditors have passed a resolution for liquidation and appointed a trustee, the separate estate of each partner, as well as the joint estate, vests in the trustee so appointed ; and if no resolution is passed by the separate creditors, the trustee must administer the separate estate according to the laws of bankruptcy. In such a case a discharge by the joint creditors will not operate to discharge any partner or his separate estate from his separate debts. Ehba v. Bulnois (Chan. App.), XIV, 739. ' 44. Funds appropriated. L. & Co. employed S. & Co., as their correspond- ents at Havana, and R. as their correspondent in London. They consigned certain cargoes to S. & Co. at the same time, informing them that they would draw bills on R. for the value. This they accordingly did, and the bills were accepted by R. Before the bills came to maturity, S. & Co. sent remittances in short bills to R. to cover the amount of the bills, telling him to take them " against the acceptances." R. became bankrupt, and the acceptances were not paid, and soon after S. & Co. became insolvent. Held, that the remittances must be applied to meet the acceptances. Matter of Smai't (Chan. App.), IV, 855. 45. It is no objection to the application of the rule in that case that the party sending the remittances was not a party to the bills as drawer or in- dorser, provided the bills were drawn in respect of a transaction in which he is liable. lb. 46. Funds not appointed. W. D., who had settled as a grazier in Aus- tralia, and had upon his own petition been adjudicated an insolvent, and received his certificate there, afterward visited England in 1868, and died there BANKEUPTOY. 33 intestate, leaving a widow in Australia and creditors who had received only a small dividend on their debts. Under a settlement made on the marriage of the father and mother of W. D., the father, who died in 1869, had power to appoint a fund amongst his children, who, in default of appointment, were entitled equally. The power was not exercised. W. D.'s share of the fund had been paid into court. On a petition by the official assignee in the insol- vency, it was held that he was entitled to the fund in court. Matter of David- son's Settlement (Bq. C), V, 893. 47. Payments under pressure. The sheriff having received a writ of exe- cution against a trader for a debt exceeding £50, the debtor, on the 34th of July, before any levy had been made, paid to the sheriflfs ofBcei- a large part of the debt in a bill, a, check drawn by another person, and bank notes. On the 35th of July the sheriff's officer asked the creditors whether they would accept in part payment what the debtor had given. him, and showed them the bill. They expressed their assent. On the 36th of July (Saturday) the debtor filed a liquidation petition, and a receiver was appointed. On the 38th of July the sheriff's officer, having received the remainder of the debt from another person liable for it, paid the whole to the creditors. Held, that the transaction was a payment under pressure ; and that the creditors were not bound to hand over to the trustee the bill of exchange, the check or the bank notes. Me parte Brooke; In re Sassall (Chan. App.), VIII, 876. 48. C, a manufacturer in Bogland, was in the habit of purchasing flax from P., in Belgium, whose sister he had married. In August, 1873, he owed upwards of £4,000 to P., as the executrix of her mother's estate, and also £800 on the current account between P. and himself ; and being pressed by her for payment, he promised to send £3,350 on account of the debt to the estate. On the 4th of November, 1873, 0. sent bills to the amount of £4,000 to P., who received the proceeds, and applied £3,350 toward the debt to her mother's estate, and carried the rest to the account current between C. and herself, and with that sum, and other sums afterward remitted, she purchased flax, and consigned it to C. C. was at that time in insolvent circumstances, and on the 5th of November committed an act of bankruptcy, on which he was adjudi- cated bankrupt on the 38th of November. The trustee claimed the sum of £4,000, as having been paid to P. by way of fraudulent preference. Meld, that there was no fraudulent preference. JSJx parte Keran; In re ^Crawford (Chan. App.), X, 718. 49. Property in debtor's possession. On the 8d day of May a bill of sale of chattels was executed, and it was afterward duly registered. The mort- gagee did not demand possession of the goods until the 15th of June. The goods had been seized on the 5th of June by the sheriff under an execution issued by another creditor, and on the 13th of June the debtor had filed a liquidation petition. The sheriff remained in possession till the 30th of June. Held, that the sheriff's possession, being wrongful as against the mortgagee, did not prevent the goods from being in the order or disposition of the debtor at the commencement of the liquidation, and that they consequently passed to the trustee. Ex parte Edey ; In re OutTibertson (Bq. C), XI, 831. 50. A draper in London, being the owner of household furniture, which was in his dwelling-house and shop, signed a written agreement by 5 34 BANKRUPTCY. •which he sold the furniture to a furniture dealer, and hired it back at a rent of 12s. 6d. a week. He remained in the use and occupation of the furniture under the agreement for more than four years, and then filed a petition for liquidation, under which a trustee was appointed. Held, that the furniture was in the order and disposition of the debtor as the reputed owner at the commencement of the liquidation, and that the trustee was entitled to it. Mc parte Lovering ; In re Jones (Chan. App.), X, 636. 51. A bill of sale was executed on the 9th of January, 1873. On the 33d of January the grantor filed a petition for liquidation. On the 30th of January the bill of sale was registered, and on the 13th of February the trus- tee under the liquidation took possession of the property. The bill of sale provided that the grantor should continue in possession of the property until default in payment upon demand of what should be due to the grantee. The grantor remained in possession of the property until the 13th of February, no demand for payment or possession having been made by the grantee. On that day the grantee authorized an agent to take possession, but no possession was taken by him. Held, that the trustee was entitled to the property as against the bill of sale holder, the -grantee's title not having been perfected by demand and possession before the bankruptcy. Ex parte Harding (Eq. C), "V, 816. 52. A mortgagee, under an unregistered bill of sale, of furniture and live stock at a house, sent two men into the house on the 10th of February to take possession of the goods. They remained in the house, but allowed the debtors and their family to use the goods as usual till the 14th of February. On the 11th of February the debtors executed another bill of sale, which com- prised substantially all their property, to another creditor, to secure an ante- cedent debt. Early in the morning of the 14th of February the first mort- gagee sent vans to the house, and the men in possession commenced to pack the furniture and load the vans. At half-past twelve o'clock on the same day the debtors filed a petition for liquidation. The furniture and live stock at the house were carried away by the first mortgagee before the evening. Held, that the furniture and live stock were in the apparent possession of the debtors until the morning of the 14th of February, within the 7th section of the Bills of Sale Act (17 & 18 Vict., li. 36), but ceased to be so when the men in possession began to pack the goods and put them in the vans, and that, as the debtors committed an act of bankruptcy on the 11th by the assignment of all their property, the first bill of sale was void as against the trustee in the liqui- dation, and the trustee was entitled to the proceeds of the sale. Ex parte Jay ; In re BlenkJiorn (Chan. App.), X, 678. 53. The holders for value of an unregistered bill of sale of certain goods supplied to an innkeeper for use in his business allowed them to remain in the hands of his administratrix after his death. She continued the busi- ness and remained in possession of the goods for fifteen months after taking out letters of administration to him, at the end of which time she became bankrupt. Held, first, that the goods were in the order and disposition of the bankrupt, with the consent of the true owners ; and secondly, that, independ- ently of the bill of sale, the lapse of more than a year, during which the goods were in the hands of the administratrix and used by her for the purposes of her business, precluded any claim as against her creditors by the creditors of BANKEUPTCY. 35 tke estate of which she was administratrix. Kitchen v. Ibbetson (Eq. C), VII, 668. 54. On the 23d of September, H. discounted for P. two bills of exchange payable on the 12th of October, and P. gave H. a bill of sale as security, re- questing him not to register it unless the bills were dishonored at maturity. H. accordingly did not register it. On the 13th of October the bills were dis- honored, on which H. took them up and P. gave him two fresh bills for the same amount, and a new bill of sale of the same chattels. On the 30th of October, the new bills were dishonored, and H. gave directions to take posses- sion of the chattels. Early on the 81st, a broker went to take possession, but could not on that day get into the house where they were. On the same day the bill of sale was registered, and P. committed an act of bankruptcy by filing a petition for liquidation, on which he was subsequently adj udged bank- rupt. On the 1st of November, H. obtained possession of the goods. Held, that the goods belonged to H. and not to the trustee in bankruptcy, for that they were not in the order and disposition of the bankrupt with the consent of the true owner at the time of the act of bankruptcy ; that the Bills of Sale Act did not apply, and that the transaction was not invalid as being a scheme to evade the provisions of that act. Matter of Harris (Chan. App.), IV, 750. 55. In December, 1870, W. bought from C. whisky in bond, to remain in bond to C.'s order, rent free for twelve months, after which warehouse rent to be paid. In March, 1871, the price was paid. On the 19th of February, 1872, W. wrote to C. directing him to forward a specified hogshead of the whisky, and inclosing a check of sufficient amount to pay duty and clear the whisky. On the 26th C. filed a petition for liquidation, having retained the check, but not paid the duty nor in any way complied with W.'s directions. At the time of sale the whisky had been all carried to W.'s credit in C.'s books, but had throughout been lying to C.'s order at a dock warehouse. Held, that this hogshead did not pass to the trustee in liquidation as being within C.'s order and disposition, as the consent of the true owner had been deter- mined by the demand of possession, though no notice had been given to the warehouseman. Matter of Ward (Chan. App.), IV, 823. 56. At the time of the presentation of a petition for liquidation by ar- rangement, there were lying in the bonded warehouse of the debtors, who were wine and spirit merchants in Liverpool, certain butts of whisky which they had sold to the appellant. The goods were left there for the convenience of the purchaser, to whom a delivery warrant had been given by the vendors, in which they stated that th'ey held the goods to his order as warehousemen. The vendors did not carry on business as general warehousemen, but it was proved to be the usual custom of the wine and spirit trade, in Liverpool, for goods sold in bond to remain in the possession or under the control of the ven- dors, in the bonded warehouse in which they were at the time of sale, until they were required by the purchaser for use. Held, that the existence of a custom of this nature, shown to be well known among persons concerned in the wine and spirit trade, excluded the doctrine of reputed ownership, and that the goods did not pass to the trustee. Mc pa/He Watkins (Chan. App.), VI, 466. 36 BANKKUPTCY. 67. At the time of the presentation of a petition for liquidation by arrangement, certain butts of whisky which had been sold by the debtors to the appellants were lying in the bonded warehouse of a third person at Leith, in the name of the debtors. No delivery order had been given to the pur- chasers before the filing of the petition, and they were ignorant in what ware- house the whisky was lying. Held, that the custom of the 'spirit trade excluded the reputation of ownership, although the whisky was in the ware- house of a third party, and not in that of the vendors. Ex parte Yavx ; In re Oouston (Chan. App.), X, 613. 58 Held, also, that the fact of the delivery order not having been given to the purchasers before the commencement of the liquidation did not raise a reputation of ownership in the vendors. lb. 59. A husband and wife, at a time when the wife was under age, exe- cuted a deed which purported to convey freehold property of the wife to a purcliaser for £500. The deed was not acknowledged by the wife. The hus- band received the £500. The purchaser afterward contracted to sell the prop- erty, and his sub purchaser required the concurrence of the wife in the con- veyance to him. The wife, who was then of age, refused to concur, unless tlie husband would execute a bill of sale of his furniture to a trustee for her, to secure the payment of £435 for her separate use. This was done by the husband, and she then executed the conveyance to the sub-purchaser. The bill of sale was registered. Possession of the furniture was given to the trus- tee by delivering to him a silver fork in the name of the whole, and the keys of the house where the furniture was ; but the furniture remained, until the husband filed a liquidation petition, in the house which was occupied by him and his wife, and it was used by them. Held, that the execution of the bill of sale amounted to a purchase of the wife's concurrence in the conveyance ; that the possession was consistent with the terms of the deed, and that the wife's trustee was entitled to the furniture as against the trustee under the liquidation. Ex parte Cox; In re Reed (Chan. Div.), XV, 756. 60. Partnership property. By the decree in a suit a partnership between the plaintiff and defendant was dissolved, and the business and partnership property were ordered to be sold as a going concern, either party being at lib- erty to bid. Under a subsequent order the plaintiff became the purchaser, he having in the meantime been carrying on the business for the benefit of the purchaser. Under the order approving of the purchase by him he was allowed to_ go into possession at once as purchaser. He continued in posses- sion for some time, and ultimately became bankrupt. Held, that under the circumstances the business and partnership property were in the order and disposition of the bankrupt, with the consent of the true owner. Oraham v. MeC'ulloch (Eq. C), XV, 401. 61. Joint and separate property. By a partnership deed it was stipulated that A. and B. should be partners in the profits of the business, the capital of which belonged to A. ; and that on the death of A. the partnership should he dissolved, and B.'s share of profits should thenceforth belong to A.'s repre- sentatives, and that his representatives should thenceforth carry on the busi- ness, and that B. should receive from them his share of the profits up to A.'s death. A. died during the partnership, having appointed B. his executor. B BANKEUPTCY. 37 carried on the trade for fourteen months, and then filed a petition for liquida- tion. Part of the stock in trade which existed at A.'s death still remained in specie, but the greater part had been disposed of by B. in the course of the business, and fresh stock in trade bought by him. Held, that the partnership deed had not the effect of converting the stock in trade into separate estate of A., but that so much of the present assets as had been in existence at A.'s death was applicable as joint estate to pay the joint creditors of the firm, and BO much as had been bought since A.'s death was applicaMe as separate estate of B. Sx parte Morley ; In re White (Chan. App.), VII, 531. 62. Joint, after separate adjudicatiou. One of two partners was adjudicated bankrupt in England, and the other in Ireland; they were then jointly adju- dicated bankrupts in Ireland. Most of the joint creditors were in England, and a considerable part of the assets was in England. Held, that the assets in England would not be handed over to the assignees in the joint bankruptcy. The effect of a joint adjudication after separate adjudications discussed. Mat- ter of O'Reardon (Chan. App.), VIII, 739. VI. Recbiteu and trustee, duties, actions by and against. 63. Valuation of assets. A receiver and manager of the property and busi- ness of traders who had filed a liquidation petition was appointed by the court under rule 260. Without obtaining any previous sanction from the court or the creditors, he expended a considerable sum in obtaining a valuation of the debtor's assets, and he also employed the debtors to assist in managing the business at a weekly salary. Held, that the court had a discretion as to allow- ing sums so expended, and that under the circumstances they had been properly allowed. Hdd, also, that the sanction of the court to the expenditure could be given after it had been made. Es parte Gordon ; In re Qomersall (Eq. C), XIII, 809. 64. It is the duty of a receiver, whether appointed by the court or nominated by the creditors, to investigate the state erf the debtor's affairs, and inform the creditors at their first meeting what he believes to be the value of the debtor's assets lb. 65. Receiver, duty of. A creditor sued out a debtor's summons, and the debt not having been paid or secured, he presented a petition for adj udication, and got a receiver appointed. Soon afterward the debtor, with the consent of the receiver, paid part of the debt to the creditor, and the creditor accord- ingly withdrew the petition for adjudicatiou. The debtor had been adjudged bankrupt on the petition of another creditor after the part payment. Held, that the receiver was a trustee for all the creditors, and had no right to permit the payment to be made to the creditor who sued out the debtor's summons, and that the money must be paid over to the trustee in the bankruptcy. Ex parte Jay ; In re Poieia (Chan. App.), VIII, 783. 66. liability of. A petition for liquidation having been presented, a receiver was appointed and ordered to take possession of the fixtures and Btock-in-trade at the debtor's brewery ; and an injunction was granted restraining a mortgagee, who was in possession of the brewery under a bill of sale, from intermeddling with the chattels in the brewery. When the injunction was granted, the receiver and the debtor gave undertakings to be 38 BANKEUPTCY. answerable for damages. The mortgagee afterward established his title to the brewery and the chattels in it, and then applied for an inquiry as to dam- ages sustained by the occupation of the receiver. Held, fhat the receiver must be treated as the agent of the creditors, and not of the mortgagee, and could not charge the mortgagee with the expense of carrying on the business ; and that he was liable, under his undertaking, for damage for deterioration of the property, and for rent for use and occupation of the fixtures and stock-in- trade ; and an inquiry was directed accordingly. Ex parte Warren; In re Joyce (Chan. App.), XII, 714. 67. Action by trustee. The trustee of a bankrupt's estate applied, under the 72d section of the Bankruptcy Act, 1869, to the Court of Bankruptcy to declare a bill of sale, made by the bankrupt previously to his bankruptcy, fraudulent and void as against himself as trustee, and to order the assignee under the bill of sale who had previously to the bankruptcy sold the goods comprised therein, to- pay over the proceeds of the sale to himself as such trustee. The Court of Bankruptcy having made the order prayed for, and the assignee having accordingly paid over the proceeds of the sale, held, that the trustee could not afterward bring an action of trover against the assignee under the bill of sale to recover the difference between the value of the goods and the amount realized by the sale, inasmuch as by the proceedings in bank- ruptcy to recover the proceeds of the sale he had affirmed such sale, and waived the tort. Smith v. Baker (Com. PL), V, 333. 68. Where the result of recovering property alleged to have been delivered to a creditor by way of fraudulent preference would not be for the benefit of the creditors at large, but of an individual creditor who claims a security on it, the trustee ought not to take proceedings for the recovery of the property himself, nor will the individual creditor be allowed to take them in his name. Ex parte Gooper ; In re Zuceo (Chan. App.), XIV, 755. 69. Action against trustee. A suit in chancery was instituted by legatees under the will of p. testator against his executors, and against the continuing partners of a firm of which he had been a member at the time of his death, and R. S. D. , another partner, who had retired after the testator's death, for the purpose of winding up the aflairs of the partnership as they existed at the time of the testator's death, and obtaining payment to his estate of the share of the capital which was due to him. After the bill was filed the continuing partners filed a petition for liquidation by arrangement, and a trustee was appointed. The trustee was made a party to the suit by a supplemental order, but no relief was prayed against him. The trustee having applied to the Court of Bankruptcy for an injunction to restrain the proceedings in the suit as against him, it was held, by Bacon, C. J., that the court had no jurisdiction to grant an injunction. After the order was made, R. S. D. also filed a petition for liquidation. Held, by the lords justices, that the chief judge was right in refusing the injunction, R. S. D. being then insolvent. Ex parte Gordon (Chan. App.), VI, 484. '0. But held, on the production of evidence that R. S. D. had also become a liquidating debtor, that all the matters in question in the suit might be properly determined in bankruptcy ; and that the trustee was entitled to the injunction asked for. lb. BANKRUPTCY. 39 71. Set-off. B. & Co. had business transactions with a trader who became bankrupt, and at the time of the bankruptcy the bankrupt owed B. & Co. £3,010, and B. & Co owed the bankrupt £88 ; but the bankrupt held goods of B. & Co., upon which he had a lien for that amount. The trustee in the bank- ruptcy insisted that B. & Co. should pay the debt of £88 before the goods were delivered up to them, and that they should prove for the whole sum of £3,010 against the bankrupt's estate. Held, that B. & Co. were entitled to have the sum of £88 set off against their claim, so as to free the goods from the lien, and to prove for the balance against the bankrupt's estate. Mc parte Barnett ; In re Deoeze (Chan. App.), VIII, 873. 72. A person in whom the estate of a bankrupt was, on the annulling of the bankruptcy, vested under s. 81 of the Bankruptcy Act, 1869, having sued for a debt due to the bankrupt, the defendant pleaded a set-off, by way of mutual credit at the time of the bankruptcy, between the defendant and the bankrupt, for unliquidated damages provable in bankruptcy, and which would have been provable against the bankrupt had the proceedings in bank- ruptcy continued against him. On demurrer, heU, that the plea was good, as the vesting order vested the property of the bankrupt in the plaintiff, subject to the right to set off debts which would have been provable in the bank- ruptcy. West V. Baker (Ex. Div.), XV, 294. VII. Pbotbcted transactions, 73. Payments without notice. The concluding words of the 93d section of the 33 & 83 Vict., c. 71 (the Bankrupt Act, 1869), giving protection to payments, etc., made as therein specified, apply to a creditor of the bankrupt, and not merely to his transferee. Butcher v. Stead (H. of L.), XIV, 311 ; affirming S. C, X, 607. 74. Where, therefore, a person sold goods to another as upon a cash credit, and, just before the credit expired, received from the vendee, then on the eve of bankruptcy, payment for those goods; being, at the time of such pay- ment, entirely without knowledge or even suspicion of the true state of the vendee's circumstances, he was held to be protected. lb. 75. S., a calico merchant at Manchester, sold calico, in September, to M. & W., calico printers there, on the usual terms of the Manchester market, which would have made payment due on the 3d of December. M. & W. were at the time of the purchase (though quite unknown to S.) in insolvent circum- stances. In November M. & W. sold a large part of their stock in trade, and directed their cashier to pay their trade creditors. The cashier did so, and on the 23d of November paid S., taking discount and rebate of interest in the ordinary way. M. & W. were largely indebted to other persons for advances, and on banking accounts. On the 3d of December M. & W. filed a petition for liquidation, and a trustee was appointed. The trustee sought to get back the money which had been paid to S. Held {dubitante Lord Selbosnb), that S. was protected as " a payee, in good faith, and for valuable consideration,'' within the word of the 93d section of the Bankruptcy Act, 1869. lb. 76. Transfer in pursuance of previous agreement. Two traders — brothers — obtained advances amounting to £500 from their fathfer and brother in various sums, and in 1870, on the last advance of £350, they signed an agree- 40 BANKRUPTCY. ment that they would, on demand, assign the lease of their premises and their business, stock-in-trade and book debts to the creditors, with a proviso that if they should repay the sums advanced, the agreement should be void; but if they should fail to do so, a valuation should be made, and the balance, if any, should be paid to the debtors. At the same time the lease was deposited with the same creditors as a security for the due performance of the agreement. In 1873 the debtors became embarrassed, and the creditors demanded the exe- cution of an assignment in pursuance of the agreement, which was accord- ingly executed, and the balance of the valuation of the property, amounting to £133, was paid to the debtors. The assignment included substantially the whole of the debtors' property, and the creditors took possession of it forth- witli. A few days afterward the debtors filed a petition for liciuidation, and the trustee applied to have the deed of assignment of 1873 declared void. Ileld, that the agreement of 1870 became a binding security on demand being made, and that the assignment of 1873, being based upon it, was valid. Ex parte Izard ; In re Goole (Chan, App.), VIII, 860. 77. In August, S., a shipbuilder, whose account current with his bankers was overdrawn, offered to give them security upon a ship which he was building. The bankers declined to accept the security then, but said that circumstances might arise to make it desirable that they should have it, and he promised to give it them when they wished it. On the 38th of September the offer was renewed, but the bankers urged him to sell the ship and so pre- vent the necessity of their taking the security. On the 7th of October S. had an interview with them at the bank, and they told him that they would accept tlie security, and that he was to lodge the builder's certificate of the ship with their manager. The next day he signed the certificate and gave it to the bank manager. Tlie certificate described the ship and her engines, and stated that she had been built for the bank manager. At this time she was not launched, but vfae, in an unfinished state in the builder's yard. The engines were not on board, but were lying unfinished in the yard of the firm who were making them for the shipbuilder. On the 9th of October the shipbuilder had another interview with the bankers, when they told him they could advance him no more money, and did not see how he could go on, to which he assented; but they agreed to advance him £770 to pay his workmen's weekly wages, on the security of an assignment of a debt owing to him from another person, and told him that they could go no further, and that he had better consult his solicitor as to his position. On the 10th of October the manager endeavored to get himself registered as the owner of the ship, but as she was not launched, this could not be done. But he placed a man in possession of her and fixed a notice upon her that she was his property. On the 10th of October S. paid his workmen, and then discharged them and closed his place of busi- ness. On the 13th of October he filed a liquidation petition. Reld, that both the securities given to the bankers were valid as against the trustee in the liqixidation, there not being in the transactions any thing amounting to either a fraudulent preference or an act of bankruptcy. Bx parte Hodgkin ; In re SoftUy (Bq. C), XV, 593. 78. Held, also, that the deposit of the builder's certificate created a good equitable mortgage of the unfinished ship, including the engines which BANKRUPTCY. 41 were being built for her, but subject, as to the engines, to any Hen for unpaid purchase-money to which the engine-builders might be entitled. lb. 79. Held, also, that the assignment of the debt, having been given after the insolvent position of S. was disclosed, was a security for the £770 only, and could not be made available by consolidation or otherwise to secure the past debt. lb. 80. Parol agreement for flirther advances. An assignment of substan- tially the whole of a mortgagor's property to . secure a previously existing debt and further advances is not an act of bankruptcy, if there is a contem- poraneous parol agreement on the part of the mortgagee to make further advances to a sufficient amount, and such advances are afterward in fact made, even though the deed contains no covenant or obligation on the part of the mortgagee to make any further advances. Mt parte Winder; In re Win- stanley (Chan. Div.), XV, 746. 81. Pa3rment to take up prior bills. Where a person who had committed an act of bankruptcy, on which he was afterward adjudged a bankrupt, exe- cuted a bill of sale to one who had notice of the act of bankruptcy, by way of security, for a sum paid by the latter, to take up two similar bills of sale executed prior to such act, which were registered, and for a further sum advanced by him, the old bills being transferred to him, and satisfaction thereof entered up, but the new bill of sale not being registered ; held, that the new bill of sale was valid as against the trustee in the bankruptcy to the extent of the sum paid to take up such prior bills. Ex parte Harris ; In re James (Eq. C), XI, 839. 82. Property returned to vendor. A trader, being in insolvent circum- stances, applied to a creditor, to whom he owed £3,500 for goods supplied in the way of his business, to supply him with more goods on credit! The credi- tor refused to supply any more goods unless the debtor paid £300 on account of the goods previously supplied. The debtor said he could not pay the money, and, on being pressed by the creditor, he offered to return goods to the amount of the £300, which he did not want. This the creditor agreed to, and the goods were accordingly returned to him. On the same day the debtor filed a petition for liquidation. Held, that the delivery of the goods to the creditors was not a fraudulent preference. Ex parte Topliam (Chan. App.), VI, 530. 83. Held, also, that the trustee in the liquidation was not entitled to have the goods given up by the creditor, on the ground that the delivery to him was on condition of his supplying fresh goods, which he had never done. lb. 84. Two of the principal creditors of a debtor had a meeting with him, at which he admitted that, unless he could get assistance from his friends, he must become bankrupt. Held, that one of the creditors might, notwithstand- ing the meeting, obtain payment from the debtor of a debt previously due. lb. VIII. Execution and other liens. 85. Rights of execution creditor. An execution creditor, who has seized the goods of his debtor before the latter has committed an act of bank- 6 43 BANKRUPTCY. ruptcy* is entitled to tlie proceeds of them as against the trustee. Therefore, wliere goods of a non-trading debtor were seized on the 18th of February, and the debtor filed a petition for liquidation on the 32d of February ; field, that the execution creditor was entitled to the proceeds of the execution. Mc parte Bailey; In re Jechs (Eq. C), I, 703. 86. A creditor levied execution on his debtor's goods for a debt exceed- ing £50, and the sheriff seized and sold them. The debtor filed a petition for liquidation, and served notice of it on the sheriff before the sale. Before the expiration of fourteen days after the sale, the first meeting of the creditors was held, but no resolution was passed. The sheriff, then, after the expira- tion of the fourteen days, paid the proceeds of the sale to the execution creditor. Afterward a bankruptcy petition was filed by another creditor, which stated the filing of the petition for liquidation and the failure of the proceedings, and the debtor was adjudicated bankrupt under this petition. The trustee demanded the proceeds of the sale from the execution creditor, who paid them to him, believing that he was legally entitled to them. Held, that the liquidation proceedings entirely came to an end on the failure of the meeting to pass a resolution, and that the debtor was not adjudged a bankrupt on the liquidation petition within the meaning of the 87th section of the Bank- ruptcy Act, 1869; and the sheriff was, therefore, justified in paying the pro- ceeds of the sale to the execution creditor. Ex parte James; In re Condon (Chan. App.), X, 619. 87. Held, also, that the court had jurisdiction to relieve against the mistake of law, and to order the money to be repaid by the trustee to the exe- cution creditor. lb. 88. The sheriff having seized the goods of a trader debtor under an execution for more than £50, the debtor, before sale, paid him on the 18th of November and the 21st of November, two sums of £100 and £33 respectively, on account of the debt. The j udgment creditors knew of and assented to the payments. The debtor, on the 24th of November, filed a petition for liquida- tion, and a restraining order was served on the sheriff, who continued to hold the sums so paid on account. Subsequently, on the 30th of December, trustees were appointed, who claimed the £133. Held, that the judgment creditors, having assented to the payments, were entitled to the money as against the trustees. Stock v. Holland (Exch.), IX, 460. 89. An execution levied by seizure and sale of a trader's goods for a debt exceeding £50, although an act of bankruptcy, is not for that reason necessarily a void proceeding ; and if the execution creditor had no notice of a prior act of bankruptcy, and no notice of a petition for adj udication is given to the sheriff under the 87th section of the Bankruptcy Act, 1869, within four- teen days after the sale, the execution creditor is entitled to the proceeds of the sale, notwithstanding a supervening bankruptcy. Ex parte YiUars ; In re Rogers (Chan. App.), IX, 531. 90. In sect. 95, sub-sect. 3 of the Bankruptcy A,ct, 1869, " act of bank- ruptcy " means an act of bankruptcy which has been committed prior to the time of seizure ; and the onus is on the execution creditor, who claims the protection of that section, to' prove that he had no notice of any prior act of bankruptcy. Ex parte SaJiuUe; In re Matane (Chan. App.), VIII, 983. BANKEUPTCY. 43 91. Notice to the sheriff's officers in possession under an execution of an act of bankruptcy is not notice to the creditor. lb. 92. A creditor issued execution against a trader for a debt above £50. After the goods seized by the sheriff had been sold, the same creditor issued another execution against the debtor for another debt above £50. The goods seized under the second execution were sold, and the money produced by the sale was paid over to the creditor, the sheriff having had no notice within fourteen days from the sale of any bankruptcy petition against the debtor. Afterward the debtor was adjudicated a bankrupt upon the act of bankruptcy committed by the seizure and sale under the first execution. The money pro- duced by the first sale was not paid to the creditor till after the sale under the second execution. Held, that, though it was not proved that the creditor had, when the sale took place under the second execution, any actual knowledge that the sale had been made under the first, he must be deemed to have had notice of the proceedings under his own execution, and must, therefore, refund the money produced by the second execution. Ex parte DoAJoes ; In re IIus- land (Eq. C), XII, 830. 93. Garnishee. A judgment creditor, who has obtained and served on the garnishee a garnishee order nisi, under s. 61 of the Common Law Procedure Act, 1854, before a petition for liquidation has been presented by the judgment debtor, is a creditor holding a security on the debtor's property within the meaning of s. 13 of the Bankruptcy Act, 1869 (33 & 83 Vict., c. 71). Lowe v. Biakemore (Q. B.), XIV, 291. 94. Iiien on property specifically appropriated. Two distinct firms, L. & Co. of Bombay, and G. & Co. of London, were engaged in a joint adventure for buying and selling goods in England and India. The course of business as to the homeward shipments was that L. & Co. drew bills on G. & Co. which they discounted in India, and with the proceeds purchased cotton which they consigned to G. & Co. specially to meet the acceptances. Both firms stopped payment, and went into liquidation. The holders of unpaid acceptances of G. & Co., which had been drawn in this way, claimed to have the proceeds of certain shipments of cotton specially appropriated to meet the acceptances. HM, that the bill holders were entitled to have the cotton specially appropria- ted, but subject to the rights of the creditors. If any, of the aggregate firms to have the cotton applied as part of the aggregate assets. Ex parte DewJiursi; In re Legatt ; In re Oledstanes (Chan. App.), VII, 504. • 95. Security, excess realized on. A secured creditor who, after the first meeting under a liquidation, proves for the balance of his debt less the assessed value of his security, is bound to pay over to the trustee any excess realized from the security beyond the assessed value ; and this, although the trustee does not object to the assessment or offer to redeem. Ex parte King ; In re Palethorpe (Eq. C), XIII, 795. IX. Pkactice. 96. Petition. Proceedings under rule 367 of the Bankruptcy Rules, 1870, for adjudication of bankruptcy based upon the neglect of the first meeting of creditors to pass a resolution for liquidation or composition, must be com- menced by petition. Ex parte James ; In re Condon (Chan. App.), X, 619. 44 BANKKUPTCY. 97. Examination. The issuing of a summons for the pxamination of a bankrupt before the registration of the trustee's appointment is a mere irregu- larity, and it is waived by his appearing and being examined without objection on that ground ; and an examination so taken is admissible in evidence against him in a subsequent criminal prosecution. Begina v. Widdop (C. C. Res.), IV, 507. 98. Discontinuance on offer to pay. After a bankruptcy petition has been presented, and before adjudication, the petitioning creditor is not bound to accept payment, although, serrible, he is at liberty to do so, but is entitled to insist upon an adjudication on proving his debt and the commission of an act of bankruptcy ; and this, as well in the case of an act of bankruptcy under a debtor's summons as in any other. Ex parte Boss; In re WhaUey (Bq. C), IX, 868. 99. Imprisonment to compel return by preferred creditor. A creditor who has received money from a bankrupt by way of fraudulent preference, and has been ordered to repay it to the trustee of the bankrupt's estate, is not a person holding money in a fiduciary capacity under the 4th section of the Debtors Act, 1869 (32 & 33 Vict., c. 62), and cannot, therefore, be committed to prison under that section. The 9th section of the Debtors Act, 1869, does not preserve to the Court of Bankruptcy any powers of imprisonment for debt which have been taken away from other courts by the act. Matter of Hooson (Chan. App.), IV, ■868. 100. Composition, effect of resolution for. A resolution under the Bank- ruptcy Act, 1869, s. 126, by the requisite majority of creditors, to accept In satisfaction from the debtor a composition upon the debts due, payable at a future time or by installments, may be pleaded in bar to an action for the original debt, brought before any default on the debtor's part by a creditor boijnd by the resolution. Slater v. Jones (Exch.), V, 878. 101. Composition as to joint debts no satisfaction of separate liability. The plaintlflfs, being the holders of a joint and several promissory note of the defendant and H., sued the defendant on the note. The defendant pleaded that the note was given by him and H. to the plaintiffs on account of a part- nership debt, and that afterward the defendant and H., as partners, being unable to pay their debts, instituted proceedings, which took place under ss. 126 and 127 of the Bankruptcy Act, 1869, according to the forms given in the schedule to the act, as provided by rule 252 ; and thereupon an extraordi- nary resolution of the creditors of the defendant and H. that a composition of 8«. 6(?. in the pound, payable by installments, should be accepted in satisfaction of the debts due from them to their creditors, was passed; that the provisions of the composition became binding on the plaintiffs and on all the creditors of the defendant and H., and that the debts due to the plaintiffs and to all other creditors became and were satisfied within the meaning of ss. 126 and 127 of the Bankruptcy Act, 1869. Held, on demurrer (Kelly, C. B., dissenting), that the acceptance of a composition on the joint debt under s. 126 was not a satis- faction of the defendant's separate liability, and therefore that the plea was bad. Simpson v. Henning (Q. B.), XIII, 810. 102. Remedy on default of payment of composition. A judgment having been recovered against the defendant for a sum of money and remaining un BANKRUPTCY. 45 satisfied, the plaintiff applied to a judge at Chambers to commit the defend- ant to prison under the oth section of the Delitors Act, 1869. The judge made an order for the payment of the debt by monthly installments. After three of such installments had been paid, proceedings were taken by the defendant for the purpose of making a composition with his creditors under the 126th section of the Bankruptcy Act, 1869 ; and a resolution of the creditors was duly passed accepting a composition upon the defendant's debts, payable by two install- ments. Default was made in the payment of the first installment of the com- position to the plaintifi", and installments under the judge's order having by that time become due and not having been paid, the plaintiff applied again at Chambers for the committal of the defendant to prison for non-compliance with the judge's order. Held, that the effect of the default in payment of the composition was to remit the plaintiff to the position he occupied before the proceedings in respect of the composition took place, and that, consequently, the order might be made for the defendant's committal to prison for non-com- pliance with the judge's order. Newdl v. Van Praagh (Com. PI.), VIII, 415. 103. Subsequent promise to pay. By s. 164 of the Bankruptcy Act, 1861, a promise to pay a debt barred by the certificate of discharge is made void. By s. 20 of 33 & 33 Vict., c. 83, the whole of the act is repealed ; but the repeal is not to affect the past operation of any enactment repealed, or affect any right accrued or restriction imposed befoTe the commencement of the act by or under any such enactment. Bimini v. Van Praagh (Qj B.), IV, 196. 104. A debtor and his creditors entered into a deed of composition while the act of 1861 was in operation, which deed was to have the effect on his debts as if the debtor had been discharged in bankruptcy. After the repeal of the statute by the above section, the debtpr gave a bill of exchange to one of his creditors, who was barred by the composition deed, for his old debt. Held, that the operation of s. 164 upon this transaction was preserved by the saving clause in s. 20 ; and the bill was therefore void. lb. 105. Distz-ess pending proceedings void. A distress levied by & creditor of a company in course of winding-up by or under the supervision of the court, after the commencement of the winding-up, is void. Otherwise if the distress is levied by a party who cannot prove in the winding-up. In re Traders, etc. , Carrying Co.; Ex parte North Staffordshire By. Co. (Eq. C), XI, 672. 106. Application for new trial. Where a jury have found a verdict on an issue of fact, but no order consequent thereon has been made by the judge, it is not necessary that an application for a new trial should be made within twenty-one days from the finding. Rule 143 of the Bankruptcy Rules, 1870, does not apply to such a case, either directly or by analogy. Mc parte Beader; In re Wrigley (Eq. C), XV, 604. See Criminal Law ; Fraud ; Lien ; Will. BARRATRY — /S«« Bill of Ladino. BASTARDY — See Contract ; Statutes. BELLIGERENTS — See Insurance, Marine. 46 BENEFIT SOCIETY. BILLS AND NOTES. BENEFIT SOCIETY. 1. Rules — construction of. By the rules of a friendly society, after pay- ment of a year's subscription, " any member shall receive 8s. per week during any sickness or accident that may befall him, unless by rioting or drunkenness. Held, that insanity was "sickness" within the meaning of the society's rules. Burton v. Eyden (Q. B.), V, 246. 2. Right to pension. By resolutions of an association in the nature of a benefit society, certain pensions were to be given to the widows of the mem- bers, and each member was to pay to the association a percentage on his in- come. Six months afterward the operation of these resolutions was suspended. Held, that the widow of a member who had not paid or tendered the requisite percentage had no claim to a pension under the resolutions. Edwa/rds v. Warden (Chan. App.), X, 551. 3. The funds of the association were vested in trustees. Held, that neither they nor the association were trustees for the widow of any member, so as to prevent the claim from being barred by lapse of time. lb, BETTING AND GAMING — from liability accru- ing after the loading of the cargo ; and that he, therefore, remained liable for delay in loading, although he had ultimately loaded a full cargo. Ghristoffer- sen V. Hansen (Q. B.), U, 639. 3. Exceptions. A charter-party was entered into between an English firm and the owners of the R., a vessel belonging to Hamburg, which provided that the vessel should proceed to a foreign port, and there load a cargo, and there- with proceed to a port within certain limits mentioned — the act of Ood, the Queen's enemies, restraint of princes and rulers, and dangers of the seas excepted ; and that the master should sign bills of lading as required, but at not less than the chartered rate, without prejudice to the charter-party. The plaintiffs, with full knowledge of the terms of this charter-party, shipped a xargo at the port of loading under bills of lading, by which it was provided that the goods should be delivered at a port within the limits mentioned in the charter-party as ordered, the dangers of the seas only excepted. After the making of the charter-party, and the shipment of the goods, war broke out between the North German Confederation and Prance. The ship on her home- ward voyage sustained damage' at sea, and was compelled to put into a neutral port for necessary repairs, and there finding that French cruisers were in the vicinity, she remained for a long time after the necessary repairs were com- pleted, in 'Order to avoid the risk of capture. The risk of capture was such as to render it reasonable and prudent for the master, having regard to the preservation of his ship, to remain in port. On th^e departure of the cruisers, the master sailed on his voyage, and delivered the cargo according to orders, at an English port within the limits mentioned in the charter-party. In a suit brought by the plaintiffs to recover damages for the delay incurred in order to avoid risk of capture, held, that the delay was justifiable; and that the single exception of dangers of the seas mentioned in the bill of lading did not, under the circumstances, exclude the other exceptions mentioned in the charter-party. The Sail Roman (Adm. & Bccl.), IV, 621. 4. A charter-party written in the English language, but entered into at Constantinople between freighters who were subjects of the North German Confederation, resident there, and the master of a North German vessel owned by subjects of the North German Confederation, provided that the ves- sel should proceed to Taganrog and there take on board a cargo as therein mentioned, to be carried to Queenstown, Falmouth or Plymouth for orders, and thence to a safe port in the United Kingdom, or a sale port on the conti- nent, between Havre and Hamburg, both inclusive, or as near thereunto as he could safely get, and deliver the same on being paid freight as therein men- tioned, the act of God, the Queen's enemies, restraint of princes and rulers, among other perils therein mentioned, excepted. The vessel proceeded to 76 CHAETEK-PAETY. Taganrog and took on a cargo, which, by the bills of lading, was to be deliv. ered at a safe port in the United Kingdom or on the continent, as per charter- party, the act of God and the Queen's enemies excepted. On the 39th of June, 1870, the vessel sailed on her voyage with the cargo to Falmouth, and on the 16th of August learned that since she had sailed from Taganrog a war had broken out between France and the North German Confederation, and was still existing. In order to avoid ca,pture by the French cruisers, the vessel proceeded to Gibraltar, where she arrived on the 15th of August, and remained there with her cargo on board till the 3d of February, 1871, when, after receiv- ing news that an armistice had been concluded between France and the North 'German Confederation, she sailed for Falmouth and delivered her cargo, accordi ng to orders, in London. Whilst the vessel was lying at Gibraltar her master was requested by the owners of cargo to proceed on his voyage, and if he would not do so, then to tranship and forward the cargo to its destination at the expense of his owners ; but no tender of freight and expenses was made, such as, according to German law, was necessary to entitle the owners of the cargo to demand its transhipment. The war continued until January, 1871, and if the vessel had left Gibraltar during the war, she would have' run great risk of capture from French cruisers. Held, that under the circum- stances the master was justified in proceeding with his ship to Gibraltar, and keeping her there with her cargo on board during the continuance of the war. The Express (Adm. & Eccl.), IV, 633. 5. Serrible, the law to be applied to the execution of the contract was North German law. lb. 6. . Stipulation as to insurance. Where the charterers of a ship stipulate that they shall be entitled to insure their advances "against freight" at the owner's expense, they must be held to have made the insurance a part of their security ; and if they fail to insure, they have, in the event of the ship perishing, no claim against the owners for repayment. Watson v. SharMand (Sc. App.), VI, 75. 7. To load in the usual and customary maimer. These terms in a charter- party held to mean the mode of loading, whether by lighter or at the wharf, and not the place at which the loading is to be done. Tappscott v. Balfour (Com. PI.), IV, 316. 8. Iiump freight. A charter-party from Riga to London provided that the ship should load a full and complete cargo of lath wood, and deliver the same on being paid freight, as follows : a lump sum of £315. There was the usual exception of sea risks, and the freight was to be paid half on arrival, and the remainder on unloading and right delivery of cargo. Part of the cargo, loaded in accordance with the charter-party, was lost by perils of the sea, without any ' default of the master or crew. Held, that the shipowner was, on delivery of the remainder of the cargo, entitled to the full sum. Robinson v. Knights (Com. PI.), VI, 330. 9. By charter-party a ship was to load at Colombo or Cochin, from the charterer's agents, a full and complete lading, and proceed to London and dis- charge there, fire and other dangers of the sea excepted, a lump sum freight of £5,000, to be paid after entire discharge and right delivery of the cargo, in cash, iwo months after the date of the ship's report inwards at the custom- OHAKTER-PARTY. 77 house. Part of the cargo loaded in accordance with the charter-party was lost by fire, without any default of the master or crew, and the remainder was delivered in London. Seld, that the shipowner was entitled under the charter- party to the full sum of £5,000. Mertliant Shipping Co. v. Armitage (Exch.), VIII, 383. 10. Stipulation as to demurrage. By a charter-party, cargo was to be loaded in thirteen working days, and to be discharged at not less than thirty tons per working day. Ten days demurrage to be allowed above the said days. Chart- erer's liability to cease when ship is loaded, the captain or owner having a lien on cargo for freight and demurrage. Meld, that the charterer upon loading the cargo was discharged from liability for demurrage incurred at the port of loading. Eish v. Cory (Q. B.), XIV, 355. Hi Quare, whether the lien for " demurrage " would have extended to damages for detention beyond the demurrage days. lb. 12. A charter-party made by plaintiff to defendant contained the follow- ing clause : " Charterer's liability to cease when the ship is loaded, the captain having a lieu upon the cargo for freight and demurrage." In an action brought for demurrage at the port of loading, held, 1, That the lien extended to de- murrage at the port of loading, as well as at the port of discharge . 3. That the ship having been loaded, the charterer could not be sued for demurrage incurred during the loading. SVancesco v. Masaey (Exch.), IV, 475. 13. By a charter-party, made with the defendant, plaintiff's ship was to proceed to W., and there load a cargo " in the customary manner," and proceed to E. and deliver, " the cargo to be discharged in ten working days (weather permitting), commencing, etc. Demurrage at £3 per 100 tons reg. per day. * * * The ship to have an absolute lien on cargo for' freight and demurrage, the charterer's liability to any clauses in this charter ceasing when he has delivered the cargo alongsi4e ship." The customary rate of loading at W. was proved to be twenty tons a day. Held, that the clause for lien and exemp- tion of the charterer applied only to demurrage at the port of discharge, not to damages for delay at the port of loading. Lockhart v. Falk (Exch.), XII, 573. 14. It was agreed by charter-party, between plaintiffs and defendants, that the plaintiffs' ship should proceed direct to any Liverpool or Birkenhead dock, as ordered by the defendants, and there load in the usual and customary manner a cargo of coals, the vessel to be loaded at the rate of 100 tons per work- ■ ing day. The defendants directed that the ship should proceed to theW. dock, at Liverpool. Cargoes of coal are supplied at the docks at Liverpool through agents for various collieries, and sometimes at the W. dock are loaded from light- ers, but most usually from " tips-," of which there are only two in the dock, and by the dock regulations, no coal agent is permitted to have more than three vessels in the dock at a time. The plaintiffs' ship was ready to go into the dock on the 3d of July, but was not allowed to enter because the coal agents employed by the defendants to supply the cargo had three vessels already in the dock, and two others in turn to go in. She was allowed to go into the dock on the 11th of July, but could not get under the tips for some time owing to the number of vessels in turn to go under them before her. Held, in an ac- tion for demurrage on the charter-party, that the lay days did not commence at 78 CHAKTER-PAETY. the time when the ship was ready to eater the dock, nor at the time when she got under the tips, bat at the time when she got into the dock. Tapaeott v. Balfour (Com. PI.), IV, 316. 15. Warranty as to arrival. By a charter-party, It was agreed that the ship Geres, of the measurement, etc., " expected to be at Alexandria about 15th of December," being tight, etc., should, " with all convenient speed," sail and proceed to that port, and there receive from the charterers a cargo of cotton seed. In an action against the owner, the breach alleged in the declaration was, that the said ship was not expected to be at Alexandria about the 15th of December, 1871, but was then in such part of the world, and under such en- gagements, that she could not perform those engagements and arrive at Alex- andria about the said day. Seld, a good breach — the descriptive statement, amounting to a warranty, that the ship was in such a position that she might reasonably be expected to arrive at Alexandria by the day named. Conkling V. Masaey (Com. PI.), VI, 176. 16. Condition. Plea, that at the time of making the charter-party, the ship was, to the plaintiff 's knowledge, engaged for a certain voyage, and that the charter-party was made subject to a parol condition that she should, with all convenient speed, fulfill her engagement, and then proceed to the port of load- ing, and that she did so, held, a good plea. lb. 17. Liability for deficiency. By a charter-party for the conveyance of a cargo of coal from Cardiff- to Buenos Ayres, it was stipu:lated that the master should " sign bills of lading for the cargo put on board as presented to him by the charterers, without prejudice to the terms of the charter-party." On arrival at the port of discharge, it was found that the coal delivered to the consignees .was less by thirty-two tons than the quantity mentioned in the bills of lading, and the owners were called upon to pay, and paid the differ- ence of value to the consignees. In an action by the owners against the charterers to recover the amount so paid, held, that, inasmuch as the owners were under no legal liability, either at common law or under the Bills of Lading Act, to pay for such deficiency, the action was not maintainable. Brown v. Powell, etc. Goal Co. (Com. PI.), XIV, 430. 18. Liability for unfitness of'vessel. A charter-party provided that the ship should load a full and complete cargo of sugar in bags, hemp in com- pressed bales, ^ measurement goods. It likewise specified different rates of freight for dry and wet sugar. The usual words as to the vessel's being tight, staunch and strong were not in the charter, but it was provided that the vessel should be a good risk for insurance before and when receiving cargo, and that the master should provide a survey report declaring her to be so. The ship proceeded to her port of loading, and having been surveyed was reported to be a first-class risk. A cargo of wet sugar was provided for her by the char- terer. A great deal of moisture drains from wet sugar, and when the cargo had been nearly all shipped, it was found that there was an accumulation in the hold, the result of drainage from the sugar mixing with the ordinary leakage of the ship, which the pumps were unable to deal with from the nature of the material, and which rendered the ship unseaworthy for the voyage if she proceeded in lier then condition. The ship was perfectly sea- worthy, except with respect to this particular kind of cargo, and the pumps CHARTEE-PAETY. 79 ■were quite sufficient for all ordinary purposes. The sugar had to be unloaded again, and the charterer then refused to reload it or provide any other cargo. Cross actions were brought, the one by the shipowner against the charterer for refusing to provide a cargo, and the other by the charterer against the shipowner to recover damages by reason of the ship not being fit to carry the cargo provided for her. At the trial the jury found that the cargo of sugar which was offered was a reasonable cargo to be offered ; that the ship was not reasonably fit to carry a reasonable cargo of wet sugar ; that the ship could not have been made fit within such a time as would not have frustrated the object of the adventure; and that the, ship would not, without new pumps and with a reasonable cargo of wet sugar on board, have been seaworthy. Held, affirming the decision of the court below, that the shipowner, by the charter-party, undertook that the ship should be fit for the carriage of a cargo of wet sugar, and that the charterer was entitled to succeed in both actions. Stanton v. Bicliardaon (Com. PI.), X, 223 ; affirming S. C, III, 314. 19. Deviation, -when excusable. The master of a Prussian vessel, a sub- ject of the King of Prussia, having on board a cargo of nitrate of soda (con- traband of war) under a charter-party and bill of lading from Pisagua, bound to Cork, Cowes or Falmouth, for orders to proceed to any safe port in Great Britain, or on the continent between Havre and Hamburg, both included, and there deliver the cargo, " the act of God, the Queen's enemies, fire and all and every other risk, dangers and accidents of the seas, rivers and navigation, of whatever nature and kind soever excepted ;" arrived at Falmouth on the 10th of July, 1870, and received orders on the 11th of that month to proceed to the French port Dunkirk, and there deliver her cargo. On the ship's arrival off Dunkirk, on tlje 16th, the master was informed by a French pilot that war had broken out between France and Prussia, whereupon the master put back to the Downs to make inquiries, and anchored there on the 17th, which was Sunday. On the 18th, having telegraphed to the owner of the vessel for instructions, he was ordered not to go to Dunkirk, aijd on the 19th he put into Dover, where he was informed, as the fact was, that war, which had been imminent from the 10th, had been declared between France and the North German Confede- ration, formal declaration thereof having been given as upon the 19th of July. Held, that the master was justified in putting back to the Downs for the pur- pose of ascertaining whether war had been declared, and was guilty of no improper deviation or delay in not returning to Dunkirk before the 19th of ■ July, when war was actually declared. Held, further, that the master com- mitted no breach of contract in refusing to deliver the cargo at Dunkirk, and as the charter-party provided what freiglit was to be paid if the cargo was delivered, the delivery at Dover was within the terms of the charter-party, and the master was entitled to freight for the cargo from the owners before delivery thereof. . Semble, where a master receives credible information that if he continues in the direct course of his voyage, his ship will be exposed to some imminent peril,. as from pirates or icebergs, or other dangers of naviga- tion, he is j ustified in- pausing and deviating from the direct course, and taking any step that a prudent man would take for the purpose of avoiding the danger. Duncan v. Easier ; The Teutonia (Priv. C), II, 526. 20. Delay, when excusable. An apprehension of capture founded on cir- cumstances calculated to affect the mind of a master of ordinary couiage. 80 CHAKTBE-PARTY. judgment and experience, will justify delay in the prosecution of a voyage; and a ship is not answerable in a suit under s. 6 of the Admiralty Court Act, 1861, for damage to cargo caused by such delay. Anderson v. Owners of Ban Soman (Priv. C), VIII, 230. 21. Where, by a charter-party, it was agreed that defendant's vessel should, with all convenient speed, sail to a spout, as directed by plaintiffs, and T.here load a full cargo of coals, and then, as soon as wind and weather should permit, should proceed to Hamburg and there deliver the same, the restraint • of princes and rulers (inter alia) excepted ; and the defendants, before any breach by plaintiffs, refused to carry out the charter-party, and to let their ship take or carry any goods of plaintiffs to the port of Hamburg, and gave notice to plaintiffs that they renounced the charter-party ; held, that the facts that before any breach of the charter-party war broke out between France and Germany, wherein the port of Hamburg was situate ; that the said port was blockaded by the French fleet ; that the Queen, by proclamation, enjoined her subjects to a strict neutrality, and not to commit any violation of the law of nations ; that the defendants were British subjects, and their ship was a British ship, and the cargo being a cargo to be carried to Hamburg, the further performance of the charter-party became illegal; that defendants, having notice of the premises, refused to allow the ship to receive a cargo for the purpose of running the blockade and delivering the cargo ; and that, although the defendants were ready to perform the charter-party as far as they were not prevented by any of the excepted causes, yet it could not have been carried out within a reasonable time, except by running the blockade, constituted a good excuse for non-performance by them, and si good defense to an action therefor. The charter-party being for one single adventure, to com- mence at once, and the contract being still executory, the defendants were j ustified in throwing up the contract and refusing to load the ship when the further performance of the contract within a reasonable time was prevented by an excepted cause, viz. , the blockade, which was a " restraint of princes." Oeipel V. Smith (Q. B.), II, 98. 22. Delay in loading. In an action by a shipowner against the charterers for not loading a cargo of coals pursuant to a charter-party, by the terms of which the owner engaged that the vessel, then in the port of Sunderland, being tight, etc., should, with all possible dispatch, proceed direct to the - South Dock, Sunderland, and there load, in the usual and customary manner, at any one of the collieries the freighters might name, a full cargo of coals, etc., which the freighters bound themselves to ship by a given day for Cal- cutta, the defendants pleaded that they had not any notice of the ship having proceeded to and having arrived at the South Dock, and of her being ready to receive cargo, wherefore they did not nor could load. Held, thaX the allega tion in the plea must be treated as an allegation of fact, meaning that by rea- son of want of notice of the ship's arrival at the dock and being ready to load, the defendants were prevented loading her, and that so read the plea was an answer to the action. Stanton v. Austin (Com. PI.), Ill, 417. 23. Rescission for delay. By the terms of a charter-party, the ship was to " proceed with all possible dispatch (dangers and accidents of navigation ex- cepted), from Liverpool to Newport, and there load a cargo of iron rails for San CHATTEL MOETGAGE. CHECK. 81 , Francisco. On the voyage from Liverpool to Newport the vessel got aground, and was not got off under a month and a half, and then required several months for repairs. Held, that the charterers were not bound then to load the ship. Jackson, v. Union Ma/t. Ins. Co. (Com. PI.), XI, 290 ; affirming S. C, VI, 368. See iNStTBANCK, Maeinb. CHATTEL MOETGAGE. 1. Mis-description. In a bill of sale the maker was described as " W. C, of No. 37 Malpas Road, Deptford," and the attesting witness as ''B. W.,3 South Terrace, Hatcham Park Road ; "and, in the affidavit filed with it, the de- ponent stated that " the said W. C, resided at No. 73 Malpas Road, Deptford," and that h« himself resided at " 3 South Terrace, Hatcham Park Road," held, a fatal mis-description. Murray v. Macheneie (Com. PI.), XIV, 469. 2. The grantor of a bill of sale was described in the affidavit filed under the Bills of Sale Act, as an accountant." He was in fact a clerk in the accountant's department, at the Buston Square Station of the London and North Western Railway Company, but in his leisure time was occasionally employed to balance tradesmen's books. Hdd, an insufficient description. Lwrchin v. North, etc.. Bank (Exch.), XII, 534. 3. Condition not registered. A bill bf sale of furniture was given to secure the payment of £350 and interest, the money being made payable on demand. In default of payment on demand, the mortgagee was empowered to take pos- session. The bill of sale was registered within the proper time. There was a prior parol agreement, not appearing'in the bill of sale, that the debt should be paid off by small weekly installments. The mortgagor was adjudicated a bankrupt, but before the adjudication was maie,the mo'rtgagee had taken pos- session. Held, that this parol agreement amounted to a defeasance or condition, within the meaning of sect. 3 of the Bills of Sale Act, 1854 ; and that, as the agreement was not registered, the bill of sale was void as against the trustee under the bankruptcy. In re Southam (Bq.'C), IX, 657. 4. Seizure and sale under. A bill of sale contained a provision that it should be void in case the mortgagor should pay the principal money thereby secured " upon demand, if and when the mortgagee should so require by a no- tice in writing,'' and until payment of the principal, should pay interest thereon half yearly, and also a proportionate part thereof " to the expiration of the said notice, when the same shall .be given.' And in default of payment power was given to the mortgagee to seize and sell the property comprised in the deed. Semile, that the mortgagee was not entitled to seize on the same day on which he made a demand for payment, the demand not being at once complied with. Ex parte Trevor ; In re Burghardt (Chan. Div.), XV, 753. See Bahkbttptcy ; Bill of Sale ; Pixtukbs ; Fraud. CHECK. ' Crossing does not affect negotiability. A., being indebted to plaintiff, gave him a check for the amount, payable to plaintiff's order, upon the defendants, a banking company. Plaintiff indorsed his name on the check, and crossed it 11 82 CHECK. CHUEOH DECOEATIONS. with the name of his bankers, " London and County Banking Co." The check- was stolen and passed for full value to C. C paid it in to his bankers, the London and Westminster Bank ; and they presented it to the defendants, who paid it to them, notwithstanding the crossing, " London and County Banking Co.'' Plaintiff brought an action against defendants for a conversion, and for so paying the check, relying on 31 & 33 Vict,, c. 79, s. 3, which enacts that a check on a banker, payable to order or bearer and uncrossed, may be crossed by the holder with the name of a banker, and such crossing shall be deemed a material part of the check, and the banker upon whom it is .drawn shall not pay it to any other than the banker named in the crossing. Held, that the statute did not affect the negotiability of the check ; the plaintiff had indorsed the check, so that C. had be'come honafide holder of it before it was presented to the defendants, and the plaintiff was not the holder ; and there was n'othing in the statute to give the plaintiff, who had ceased to be the holder, any right of action against the defendants. Smith v. Union Bank (Q. B. Div.), XV, 166 ; affirming S. C, XIII, 338. See Bona Fide Holder ; Fobseby ; Gift ; Pkotbst. CHILDEEN. Custody of. After a decree of judicial separation in favor of the party in whose custody children of the marriage have been placed, the court may allow the intervention of any pferson in their behalf to question the propriety of the continuance of such custody. Goodrich v. Goodrich (Prob. & Div.), VIII, 616. ge« Criminal Law; Divoecb; Evidence, Fbauds/ Statute of; Husband AND Wife; Infants; Well. • CHUBCH DECORATIONS. When illegal. Upon a, reredos erected for purpose of decoration in Exeter cathedral by the dean and chapter of Exeter, were sculptured representations in high relief of the Ascension, the Transfiguration, and the descent of the Holy Ghost on the day of Pentecost, with figures of the Apostles delineated as forming part of the connected representation of the historical subject. On each side of the reredos, as finials to its architectural form, was a separate figure of an angel. The bishop of Exeter, at a visitation of the cathedral of the dean and chapter, held the structure to be illegal, and ordered it to be removed. Meld (by the Privy Council, reversing the decree of the Court of Arches), that although the bishop, as ordinary, in the exercise of his visitato- rial power over the cathedral church of Exeter, cannot at his discretion order any alteration in its fabric; it was. within his jurisdiction to find that the sculpture had been unlawfully erected, and on that definite legal ground to order its removal. Held, also, that the structure was not illegal, and that so much of the decree of the Court of Arches as reversed the order of the bishop directing its removal must be affirmed. Philpoits v. Boyd (Priv. 0.;, XIII, 339 ; affirming S. C, XII, 670. CIRCUMSTANTIAL EVIDENCE — See Evidence. CITY — (S«e Municipal Cokpobations ; Oedinancbs. COMMISSION. COMPENSATION. 83 CODICIL — iSfee ExECXjTOBS, btc. ; Will. COLLISION — See Ships, etc. COLONIES — -*6 LbxLoci. COMITY- See Jurisdictiok. COMMISSION. 1. Interrogatorieg — disallowance of. Where interrogatories are adminis- tered on a comjnission to be executed in a country out of the jurisdiction of an English court, the court, in its discretion, will disallow such interrogatories as may deter a witness from giving evidence before the commission. Stocks v. Wis (Q. B.), VI, 169. 2. After a commission has been granted under 1 Wm. 4, c. 33, s. 4, the court will, before its execution, disallow any cross interrogatories, which in their discretion they may think improper. lb. COMMISSION MERCHANT — Bee Contbact ; Sht-Ofp. COMMON CAREIBB — 5«6 Cakkibr. COMMON — RIGHT OF. 1. Appurtenant. In a suit by the owners and occupiers of lands in Epping Forest against the lords of the several manors within the forest, claiming to be entitled, in right of and as appurtenant to their several lands and tene- ments, to common of pasture for cattle, levant and couchant, on their respect- ive tenements over all the waste lands of the forest, and praying an inj unc- tion to restrain the inclosure of any part of the said waste, held, that such ' right had been established by proof of user for more than sixty years ; that the defendants had failed to show that the. right of common was only common of vicinage ; that the other grounds of defense \vholly failed ; and that any further inclosure of the waste must be restrained. Commisdoners of Sewers v. Qlasse (Eq. C), XI, 7§3. 2. Of vicinage. Where A., B. and C. are three vills with commons, B. lying between A. and C, there can be common of vicinage between A. and B. and be- tween B. and C. but not between A. and C. ; and, semble, there cannot be com- mon of vicinage between more than two townships. lb. See Distress. COMPENSATION. 1. For what may be given. Though compensation may not be granted to a person annoyed by the smoke and vibration x>ccasloned by trains passing along a railway, constructed under the authority of an act of Parliament, where no part of his land has been taken, compensation may be given for deterioration in the value of his property occasioned in a similar manner, where a part of his land has been taken for the construction of a work authorized by an act. Buke of Buceleueh v. Metropolitan Boa/rd (H. of L.), II, 448. 84 COMPENSATION. 2. In this question of compensation may be considered his particular and individual use of that in which he has no proprietary right, such as the shore of a tidal riyer. lb. 3. B. wag the owner of a garden on the bank of the Thames, and had had (like his predecessors in the occupation of the same garden) the use of a causeway which ran from his garden to low-water mark in the river, — and which was always repaired and kept in order by him. He was deprived of the use of this causeway and of his communication with the river by the embank- ment of the river, and the formation of a road between it and his garden. Per Lord Chelmsfobd : Whether the soil of the causeway, or only an ease- ment over it, was in him, he was entitled under the 4th section of the Tha/nes Embankment Act to compensation for the loss of its use. Per Lord .Caibns : He was a riparian proprietor, having a right to the undisturbed flow of the river along the whole frontage of his property, and was entitled to damages for being deprived of this right. lb. 4. B. was the owner of a mansion on the banks of the Thames, with a large garden frontage thereon — the river was embanked under the authority of an act of Parliament — a large strip of dry land was formed where the river had formerly flowed up to the garden, and a public road was made between this strip of land and the river. B. claimed compensation under the act. The claim was referred to arbitration. Held, that the loss of the use of the river frontage and the consequent loss of privacy, and the increase of dust and noise by the creation of the embankment and road, were subjects for the arbitrators to con sider as occasioning deterioration in the selling value of the property, for which he was to determine the amount of compensation. Its amount was en- tirely in his discretion, and his award could not be impeached on the ground that he must have considered all these subjects in making up his mind as to the extent of the money deterioration of the property and the amount of the compensation therefor to be given. lb. 5. Injuries from public improvement. A public body, with power by act of Parliament to stop up, alter or use, for the purpose of the authorized works, certain specified streets, were restrained by injunction from interfering, in excess of their powers, with the cellar of a house in one of the streets, the roadway of which was being lowered, until the amount of compensation for the whole house should have been ascertained and paid. An inquiry as to the damages sustained by plaiutifF, the owner and occupier of the house, by rea- son of the works commenced by defendants, having been directed by the decree, hsld, that plaintifiF was not entitled to be compensated for the indirect injury to his trade resulting from the diversion of traffic caused by the author- ized act of lowering the roadway, but only for direct structural injury occa- sioned by the unauthorized interference with his cellar. Bigg v. Corporation of London (Eq. C), V, 887. 6. Land injuriously affected. In order to found a claim to compensation under the 68th section of the Lands Clauses Consolidation Act, 1845, for an interest in land "injuriously affected," there must be an injury and damage, not temporary, but permanent, peculiarly affecting the house or laud itself in which the person claiming compensation has an interest. A mere personal inconvenience, obstruction or damage to a man's trade or the good will of his business will not be sufficient, although any one of them might, but for act of COMPENSATION. COMPKOMISE. 85 Parliament which authorizes the doing of the thing occasioning the injury, have been the subject of an action against the person occasioning it. Metro- politan Board of Works v. McGarthy (H. of L.), X, 1 ; affirming S. C, V, 256. 7. M. was the lessee or -occupier of a house in close proximity to a draw-dock which opened into the Thames. He had no right in any way to the use of the docki except as one of the public, but his premises being in close proximity to it, his use of it for the purposes of his business was very constant. The Aack was entirely destroyed by the works of the Thames Embankment. M. sought compensation. The case submitted to the court stated " that by reason of the destruction of the dock, and the destruction thereby of the access to and from the Thames, the plaintiff's premises became and were, as premises either to sell or occupy in their then condition, and with reference to the uses to which any owner or occupier might put them in their then state and condition, permanently damaged and diminished in value." ITeM, that the plaintiff was, on these facts, entitled to compensation. lb. 8. Per Lerd Pestzajstcb : The legislature, in authorizing works and taking away any rights of action which the owner of land would have had if the works had been constructed without such authority, intended to confer on such owner a right to compensation co-extensive with the rights of action of which the statute had deprived him, but no more ; not to improve the position of the person injured by the passing of the act. lb. 9. Per Lord Pbnzanck : The right to compensation will accrue when- ever it can be established that a special value attached to the premises by reason of their proximity to or relative position with the highway obstructed, and that this special value has been permanently injured by the obstruc- tion, lb. 10. Lord O'Hagan fully concurred with the judgment in this case, but intimated his opinion that the observations of Lord Westbtjrt in Ricket v. The Metropolitan Sy. Go. had laid down the correct rule for construing the 68th section of the Lands Clauses Consolidation Act, 1845. The legislature never intended that the community should profit at the expense of a few of its members. lb. Bee Landlohd and Tenant ; Nbgligbnce. COMPKOMISE. 1. When a bar to suit. The defendant purchased, through his broker, 300 shares in a joint-stock company, and gave directions that they should be transferred into the name of his sou, G. E. On the same day the plaintiff instructed his broker to sell 100 shares in the company, and they were bought by the defendant's broker, on his account, through a jobber in the ordinary way, and were transferred to G. E., and were registered in his name. At that time G. E. was an infant, of which fact the plaintiff was not aware. Soon afterward the company was wound up voluntarily, and G. E. then brought an action by his father, as next friend, against the plaintiff, who was an auditor of the company, charging him with fraud in selling the shares, knowing that the company was in an insolvent condition, and claiming damages. The action was compromised on the terms that all charges of fraud should be withdrawn, and that the purchase-money should be repaid to G. E. The liquidators, on 86 COMPROMISE. discovering that G. B. was an infant, aubstituted the name ol the plaintiff for his as a contributory of the company. The plaintiff then filed a bill against the defendant, charging that he was the real purchaser of the shares, and that the plaintiff was not aware of that fact when he entered into the compromise with G. E., and claiming to be indemnified by the defendant' against all loss in respect of the transaction. Held, that the compromise was an effectual bar to the plaintiff's claim to relief, and that the fact of his ignorance that the defendant was the real owner of the shares was immaterial. Maynard y. Eaton (Chan. App.^), IX, 515. 2. When not a bar. Where, by resolutions under the Bankruptcy Act, 1869» the creditors agreed to accept a composition payable by installments, and the debtor made default in payment of an installment to a creditor, held, that the creditor could maintain an action against the debtor for the balance of the whole debt remaining unpaid, and would not be restrained by the Court of Bankruptcy. In re Ration (Chan. App.), Ill, 594. 3. On the 31st of December, 1839, certain uncollected rents belonging to the estate of a deceased person were sold by his executors to the respond- ent. In 1869 the appellant, claiming as residuary legatee under the will of the deceased, sued the respondent and the surviving executor to cancel the sale, and for an account and payment, and, after certain abortive negotiations for a compromise, foreclosed the pleadings in the action. Thereupon a " trans- action " was, on the 4th of June, 1870, made between the respondent and L., the counsel and attorney of the appellant, to the effect that the cause was stayed on certain terms of payment, and the foreclosure removed "jusqu'd nouvel ams," which "transaction," on the 10th of June, the respondent revoked and pleaded to the action. Thereafter the appellant prayed for judgment in terms of the compromise, which was refused. In January, 1871, the appellant brought another action to enforce the compromise, and the respondent pleaded, first, that the pendency of the original action for substantially the same cause was a bar, or that the discontinuance thereof was a condition precedent to the right to maintain a fresh one ; secondly, rea adjudioata ; thirdly, fourthly and fifthly, that the " transaction " was conditional on ratification by the court, was made by L. without appellant's authority, and under mistake, surprise or fraud. Held, first, that the pendency of the first action was not a bar to the institution of the second, nor was the discontinuance of the first a condition precedent to bringing the second. The right mode of enforcing the " transac- tion " was by a separate action. King v. Pinsoneault (Priv. C), XII, 127. 4. Secondly, the " transaction" was intended to be final, but according to the Canada Civil Code, interpreted by the aid of the French law, L., in the absence of special authority, had not, by reason of his being " aiioeat " and " a/eoue," any power to bind his client thereby. lb. 5. Void in default of payment. Where, by the terms of a composition deed, the release is to become null and void in default of payment of the com- position, although the first installment may have been paid in time to save a forfeiture, yet a subsequent default in payment of a second installment ren- ders the release null and void. HaU y. Levy (Com. PI.), XI, 313. 6. Of criminal proceedings. Where an offense is of such a nature that the offender may be proceeded against either civilly or criminally, as in case of CONTEMPT. 87 the infringement of a trade-mark, there is nothing illegal or improper in a compromise of the criminal proceedings taken against him. Msher v. Apol linaris Co. (Chan. App.), XII, 736. See Bankkxjptct ; Public Company. CONCEALMENT— 5«e Fraud; Gtjakantt. CONDITION— See Devise; Leoacy; Name; Wili, CONDITION PRECEDENT — &e Chastbk-Pabty ; Contract; Sale, CONDONATION— See Divorce. CONFESSION— See Criminal Law. CONFIRMATION-^ See Power. CONFLICT OF LAWS — See Lex Loci. CONSENT — See Criminal Law; Trusts, Etc. CONSIDERATION — See Bill of Lading ; Contract; Guaranty. CONSIGNOR AND CONSIGNEE— See Bankruptcy; Bill of Lading; Carrier ; Insurance, Marine CONSPIRACY- See Criminal Law. CONTEMPT. 1. Jtirisdiction of. By 9 & 10 Vict. c. 95, s. 3, the comity courts were estab- lished, and were made courts of record. By s. 113, the judge is empowered to impose a fine not exceeding £5, or to imprison for a, term not exceeding seven days, for any contempt committed in court. Held, that the jurisdiction of the judge of a county court was confined by s. 113, to contempts committed in court, and he had no power to proceed against a person for a contempt Com- mitted out of court. Begina v. Lefroy (Q. B.), IV, 250. 2. Sernble, that inferior courts of record have only power over contempts in fcbcie curias. lb. 3. Interference with receiver. After the appointment of a receiver of the goods of a bankrupt, such goods are in the custody of the court, and it is a contempt of court for a person to take them by force out of his possession, even though such person has a valid bill of sale thereof. Ex parte Cochrane ; .In re Mead (Eq. C), XIII, 803. 4. Attaofiment for. In order to bring a trustee within the 3d exception of sect. 4 of the Debtors Act, 1869(33 & 33 Vict., c. 63), it is not necessary that the money should have been in his sole possession or under his sole control. Therefore, where a sum of money, forming part of the assets of a testator's estate, was paid in to a bank to the joint account of two executors, with power to one of them to draw checks, and he drew out the money and mis- applied it, and an order was made against both executors for payment of 88 CONTEMPT. CONTEACT. tbe mouey into court, Tidd, that the other executor was within the exception, and that a writ of attachment might be issued against him for non-payment of the money. Evans v. Bear (Chan. App.), XI, 442. 5. A writ of attachment for non-payment of money is a matter of right, and the court has no discretion to refuse it. lb. 6. Punishment for. When a judge, in the legitimate exercise of his juris- diction, is defiantly disobeyed, he may commit the offender instantly to prison for contempt of court. Watt v. Ligertwood (Sc. & Div. App.), IX, 19-5. 7. A dooumeut in manibus curim having been carried away by an agent regardless of the judge's remonstranoss, held, that the judge might either have committed him summarily for the contempt, or have issued an order requiring him to return the paper, or be committed in case of refusal, or have committed him until return was made, but that a process-caption was also a proper remedy, and that notice of its issue was unnecessary. lb. See Criminal Law. CONTRACT. 1. Parties. Articles of association contained a clause in which it was stated that the plaintiff should be solicitor to tbe company, and should transact all the legal business of the company for the usual and accustomed fees and charges, and should not be removed from his oflSce unless for misconduct. The articles were signed by seven members of the company, and were duly regis- tered, and tbe company incorporated under the Companies Aot, 1862. Tbe plaintiff was not appointed solicitor to the company by any resolution of the directors, nor by any instrument bearing the corporate seal of the company, but he acted as such for some time. No resolution as to his eeasing to be solicitor was ever passed by the directors, but after a time they ceased to em- ploy him, and employed other solicitors to do the legal business of the com- pany. The plaintiff brought an action against the company for breach of con- tract -in not employing him as solicitor to transact their legal business, on the terms of the articles. Held, that the articles of association were a contract be- tween the shareholders inter se, and did not create any contract between the plaintiff, who was not a party to them, and the company. Eley v. Positive, etc.. Life Assurance Oo. (Ex. Div.), XV, 271. 2. Consideration. A legal consideration of any value is sufficient to support a contract in partial restraint of trade ; and the court will not inquire as to its adequacy. Gravely v. Barnard (Eq. C), X, 832. 3. Acceptance by letter. A contract is complete when a, letter has been posted accepting an offer which can be accepted by letter so sent. Imperial Land Co., Matter of; Harris Case (Chan. App.), Ill, 529. 4. A letter of application for shares in a company was put into the post and was duly received by the directors. A committee appointed by the directors allot- ted 100 shares to the applicant, and the secretary of the company put into the post a letter addressed to the applicant, informing him that the shares had been allotted to him, and that 10 per cent interest would be charged on the balance due in respect of the shares. The letter was duly received by the applieant, but before he received it, he had sent by post a letter declining to accept any shares. Held, that CONTRACT. 89 the contract was completed when the letter announcing the allotment of the shares was put into the post. lb. 5. Meld, that under articles of association of the company authorizing the delegation of any business to a committee, the allotment of shares by such a committee, instead of by the whole board of directors, was valid, and that the provision for payment of interest on the balance was not a new term introduced into the contract. lb. 6. A contract which is proposed by letter is binding as soon as an ac- ceptance thereof is mailed, and It cannot afterward be recalled. Wall's Case (Eq. C), V, 686. 7. The agents of A., who had a lease of premises No. 23 Belgrave Road, to dispose of, wrote to B. as follows : " We have been requested by Mrs. D. to find her a lodging-house in this neighborhood ; and we forward for your approval particulars of two which we think most likely to suit." Inclosed were particulars of two houses, one of which was No. 33 Belgrave Road, the terms for which were stated to be : Premium, '350 guineas ; rent, £80 ; and certain fixtures and planned furniture to be taken at a valuation. B. replied as follows : " I have decided on taking No. 33 Belgrave Road, and have spoken to my agent, Mr. C, of, etc., who will arrange matters with you if yo'u will put yourselves in communication with him. I leave town this afternoon ; so, if you have occasion to' write to me, please address to Cirencester." Held, that these two letters did not constitute a complete agreement binding on the de- fendant. 8tanley-Y. Dowdeawdl(Cova. 'P\.),'Sl,^1(i. 8. The plaintifl', who proposed to enter the service of the defendant, a calico printer, as salesman, on the 31st of September, wrote as follows : " Re- ferring to my conversation with you, I have now the pleasure to state my willingness to enter the service of your firm for one year on trial, on the fol lowing terms, viz., a list of merchants to be regularly called on by me to be made, and corrected as occasion requires. My salary for the year to be £120, and in addition a commission of ^d. per piece on all sales effected or orders taken by myself, etc. If the terms herein specified are in accordance with your ideas, kindly confirm them by return, and I will prepare to enter on my duties at your warehouse on Monday morning next." The defendant, on the follow- ing day, replied : '' Yours of yesterday embodies the substance of our conver- sation and terms. If we can define some of the terms a little clearer, it might prevent mistakes ; but I think we are quite agreed on all. We shall, there- fore, expect you on Monday." Then followed this postscript : " I have made a list of customers, which we can consider together." Hdd, that these two letters did not constitute a binding contract in writing, the defendant's answer not being an absolute and unqualified acceptance of the plaintifl's offer. Ap- pleby v. Johnson (Com. PL), VIII, 466. 9. Validity — intoxication, e£fect of. The contract of a man, too drunk to know what he is about, is voidable only, and not void, and therefore capable of ratification by him when he becomes sober. Matthews v. Baxter (Exch.), IV, 503. 10. Mutuality. A contract to furnish another with steam-power for any number of looms which may be put up by the latter in his weaving shed, for a term of years, at a fixed annual rent per loom, payable in advance, is not 12 90 CONTEACT. void for want of mutuality, even though it is in the power of the owners of the weaving shed to put an end to it at the commencement of any year, by dis- continuing to work any looms ; but it is valid and can be sued on at law. Matter of Waters (Chan. App.), VI, 490. 11 The plaintiffs advertised for tenders for the supply of' stores for a period of twelve months. The defendant sent in a tender to supply the stores required for the period named, at certain fixed prices, " in such quantities as the company's storekeeper might order from time to time , " and the plaintiffs accepted his tender. Held, that there was a sufficient consideration for the defendant's promise to supply the goods, although there was no binding con- tract on the part of the company to order any. Great Northern By. Co. v. Witham (Com. PI.), VII, 130. 12. As affected by public policy. The plaintiff and defendant were both subscribers to a charity, the objects of which were elected by the subscribers, who had votes proportioned in number to the amount they had subscribed. They expressly agreed that if the plaintiff would give twenty-eight votes for an object of the charity whom the defendant favored, the defendant would at the next election give twenty-eight votes for such object of the charity as the plaintiff should then favor. Held, that there was a legal consideration for the defendant's promise, and that the agreement was not void as against public policy. Boltop, V. Madden (Q. B.), VII, 117. 13. Tenders for the supply of stone having been invited by a corpora- tion, it was agreed between A., B., C. and D., quarry owners,that B. should not tender, that C. and D. should tender above A.'s price, that A. should purchase certain quantities of stone from B., C. and D., at a fixed price, and that B., C. and D. should not supply the corporation with stone during 1875. The stone was purchased as agreed, by A , but B. , in breach of the agreement, sent in a tender, which was accepted. Held, on demurrer, that the agreement was not void, aind that a bill would lie by A. to restrain B. from supplying the corporation directly or indirectly during 1875 with stone, without making the corporation parties. Jones v. North (Eq. C), XII, 836. 14, As affected by statute of frauds. Where articles of association provi- ded that a certain person should be solicitor to the company and transact all its legal business, which articles were signed by members, and the company afterward incorporated, held, that even if such articles constituted a contract, it would be a contract not to be performed within a year, and must, therefore, be in writing, and that the signatures to the articles of association, which were affixed alio intuitu, were not signatures to a memorandum of the contract within the Statute of Frauds, so as to bind the company. Eley v. Positive Assurance Go. (Ex. Div.), XV, 371. 15. Illegal consideration. To an action on a bond against the defendant as executor, he pleaded that the plaintiff had seduced and committed adultery with the wife of the defendant's testator, between whom and the plaintiff it was agreed, that in consideration that the defendant's testator would not ex- pose and make public the conduct of the plaintiff, he would not sue on the bond. On demurrer to the plea, held, that there was' no valid consideration for the agreement, and that the plea was bad. Brown v. Brine (Ex. Div.), XV, 357. CONTRACT. 91 16. Oontrary to latxr. A contract to do a thing which cannot he performed without a violation of the law is void, whether the parties knew of the law or not ; hut in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law, and then knowledge of what the law is becomes of great importance.^ Waugh v. Morris (Q. B.), V, 197. 17. A contract by a highway board with a gas company, to permit the latter to open the highway and lay gas pipes underneath, is not necessarily one to allow the creation of a nuisance, but is valid, and is a good considera- tion for an agreement by such company to make good the highway so dis- turbed, and to pay for the privilege. Sdgewa/re Highway Board v. Harrow Gas Co. (Q. B.), XI, 164. 18. Construction. Where documents are obscure, but where parties have long acted on the footing of a given practical construction, the court, in the absence of better evidence, will accept that construction as correct. Forbes v. Watt (So. & Div. App.), 11, 513. 19. Description of subject-matter. The plaintiff entered into an agreement for the transfer of his tenancy in a public-houpe and the sale of the good-will there- of to the defendant. The subject-matter of the, agreement, which was in writ- ing, was therein described as " the house and premises he now occupies, known by the sign of the 'White Hart.'"' There was a coach-house which belonged to the " White Hart," and which, at the time of the making of the agreement, was not in the occupation of the plaintiff, but of one S., who held it as tenant to the plaintiff for a period which had not expired at the time fixed for the completion of the transfer by the agreement. The agreement contained a variety of stipulations with regard to the transfer of the licenses, the payment of rates and taxes, and the purchase of fixtures, furniture, and stock at a val- uation by the defendant, and concluded as follows : " If either party shall refuse or neglect to perform all and every part of this agreement, they hereby promise and agree to pay to the other who shall be willing to complete the same the sum Of £100 as damages, and recoverable in any of Her Majesty's courts of law." The defendant refused to perform the agreement on the ground that it included the coach-house, and that the plaintiff could not per- form his part, not being able to deliver up possession of that portion of the premises on the day fixed for completion, and the plaintiff accordingly brought his action to recover the £100 as liquidated damages. Held, that the words " he now occupies " formed an essential part of the description of the subject- matter of the agreement, and could not be rejected as falsa demonstratio, and consequently that the agreement did not include the coach-house, and the plaintiff was entitled to succeed. Magee v. Lavell (Com. PI.), VIII, 433. 20. Optional. Plaintiff lent defendants £50 under an agreement : " De- fendants agree to borrow from plaintiff the sum of £50 at the rate of £6 per annum, and plaintiff agrees to lend defendants the above sum for the term of nine or six months." Held, that the option of making it a loan for six or nine months was in the defendants, the bbrrowers. Reed v. Kilhurn Go-operative 5o. (Q. B.), Xll, 395. 92 CONTRACT. 21. — r— An agreement was entered into between two water companies, by which it was agreed that company A. should take over the works, provide for a mortgage debt, and pay interest upon the shares of company B. This agree- ment was sanctioned by Act of Parliament, and the transaction was carried into effect by an indenture of January, 1857, which provided that if company A. (or their intended assignees, the corporation or local board of health), being desirous of becoming the absolute and unrestricted owners of the works of company B., subject only to the mortgage debt, should, " on or before any 25th of December, after having given to company B. six months previojis notice of their desire to avail themselves of the option thereby given, pay unto company B," £46,346, the amount of their share capital, the party so paying should become absolutely entitled to the works. Held, that the corpo- ration which had acquired the interest of company A. did not, by giving one notice and failing to act upon it, lose the right given to them by the deed of January, 1857, of purchasing, after six months' notice, on or before any 25th day of December. Wa/rd v. WoVoerhampton Waterworks Co. (Bq. C), 1, 658. 22. Where bills of lading and drafts drawn against them are intrusted to a person for presentment of the drafts, and, in case they are accepted, de- livery of the bills to the acceptor, he to receive a reward for so doing, and , agreeing to return the drafts if not paid after acceptance, or pay his principal the amount of them, he is bouhd to return the bills if not paid, or else to pay the full amount of them and not their value merely. Deverill v. Burnell (Com. PI.), VI, 224. 23. Penalty. A stipulation in a, written contract, as follows : " If either party shall refuse or neglect to perform all and every part of this agreement, they hereby promise and agree to pay to the other, who shall be willing to complete the same, the sum of £100 as damages, and recoverable in any of her majesty's courts of law," is for a penalty and not for liquidated damages, inasmuch as it applies to several events of various degrees of importance. Magee v. Lamll (Com. PI.), VIII, 423. 24. A company incorporated by Act of- Parliament for making a dock agreed with a landowner to purchase a piece of land for £4,000, of which £2,000 was to be paid at once, and the remaining £2,000 on a future day named in the agreement, with a provision that if the whole of the £2,000 and interest was not paid off by that day, in which respect time was to be of the essence of the contract, the vendors might repossess the land as of their former estate, without any obligation to repay any part of the purchase-money. Held, that this stipulation was in the nature of a penalty, from which the company was entitled to be relieved on payment of the balance of the purchase-money, with interest. In re Bagenham'a Dock Go. ; Ex parte Hulse (Chan. App.), VII, 518. 26. Per Jambs, L. J. BembU, that if, on the true construction of the agreement, this stipulation had not been merely in the nature of a penalty, it would have been void as ultra vires. lb. 26. For agency. In a contract whereby one party employs another as his sole agent for the sale of his coals at a specified place for the term of seven years, and the latter agrees to act as such agent, and not to sell the same kind of coal for any one else, the employer to control as to prices and terms of sale, and either party to have the right to terminate the agency upon certain eon- CONTEACT. 93 tingencles, there is no implied condition that the employer shall continue the business of sending coal to that place, or retain his colliery, for the seven years. Rhodes v. Norwood (App. C), XV, 124. 27. Arbitration, stipulation for. The defendant agreed with the plaintiffs, his landlords, that he would keep upon the premises demised such a number only of hares and rabbits- as would do no injury to the trees or plantations of the plaintiffs, or their growing crops, or the growing crops of their tenants ; and in case he should keep such a number as should do injury, would pay the plaintiffs a fair and reasonable compensation. In an action brought for breach of this agreement the defendant pleaded that " one of the terms of the tenancy was that, in case of any such injury, the defendant would pay a fair and rea- sonable compensation, the amount of such compensation, in case of difference, to be referred to two arbitrators or an umpire ; that a difference arose, and that no arbitrators or umpire were appointed, and no award made." On demurrer, lield, a good plea. Dawson v. Mtzgerald (Exch.), VII, 393. 28. Building contract. An architect entered into an undertaking with his employer that a house should be erected for a sum not exceeding £15,000, including architect's commission and all expenses, and engaged the services of a builder, who, without being informed of the undertaking, gave an esti- mate based on quantities given him by the architect, and entered into a con- tract vrith the employer for the completion of the work from the architect's plans, and under his superintendence, for £13,690, with power for the archi- tect to order extra works, and with a clause providing that all questions between the parties under the contract should be settled by the award of the architect. On a suit by the builder, claiming to be entitled to be paid by the employer for all quantities executed by him beyond thoSe included in his esti- mate, and for extra works, held, that on the evidence the architect was the agent of the employer ; that, his undertaking having been concealed from the builder, the arbitration clause in the contract could not be enforced, and that the plaintiff was entitled to an account for what was due to him for any works executed by him under the architect's direction, not included in the contract, and for any works so executed under the contract, the price for which was not therein included, and for any variations made under the architect's direc- tion of works included in the contract. Kimberley v. Dick (Eq. C), I, 511. 29. For lease. Under an agreement for a lease to contain " all usual and customary mining clauses " the landlord is not entitled to have inserted in the lease a proviso for re-entry on breach of any of the covenants by the lessee, or otherwise than on non-payment of rent. Semble, the rule is not limited to mining leases. RodgTdnson v. Crowe (Chan. App.), XIV, 833. 30. Not to carry on business. The defendant covenanted with the plaintiff ' not to carry on the business of a publican within half a mile of the plain- tiff's premises. He afterward carried on that business within half a mile, if the distance were measured in a straight line, "as the crow flies," but not within half a mile if the distance were measured by the nearest mode of practicable access. H.M, that the distance should be measured in a straight line, and that there had been a breach of the covenant. Moufl^t v. Cole (Exch.), IV, 439 ; affirming S. C, 1, 177. 31. In an action on a bond, conditioned that the defendant should not 94 CONTRACT. "travel for any porter, ale or. apirit merchant, as agent, collector, or other- ■wise, "held (Mabtin, B., doubting), tliat the condition of the bond was not broken by the defendant's entering into the service, as traveler, of a brewer. Jonaelyn v. Parson (Exch.), I, 378. 32. To act at a particular theater. In a contract to act in one particular theater during the season, there is an implied covenant that the contracting party shall not act in any other theater during that time ; and he may be restrained from doing so by injunction. Montague v. FiocTcton (Eq. C), VI, 704. 33. To carry on business. The defendant sold to the plaintiffs his news agency business for £3,500, payable by installments. The first two install- ments of £500 each were payable at all events, but the payment of the other two of £750 each was contingent on the profits of the business, and, in the event of the profits of the business exceeding a certain amount, the defendant was to receive further benefits. The plaintiffs at the same time engaged the defend- ant to superintend their business, including, along with the business sold, cer- tain other branches, for five years, at a salary, he undertaking to obey their directions. Within the first year the plaintiffs agreed with a company to dis- continue the news agency business, giving the company the option of cpntinu- ing such parts of it as the company might elect to continue. The plaintiffs then directed the defendant to discontinue the transmission of news, and the defendant refusing to obey, they filed their bill for an injunction to restrain him from transmitting news, which injunction was granted. Held, that, as the purchase-money was to be ascertained by reference to the profits, there was an implied covenant by the plaintiffs that the business should be carried on, and that, as the plaintiffs had btoken this implied covenant, they were not entitled to restrain the defendant from breaking any other part of the agreement. Telegraph Despatch, etc., v. McLean (Chan. App.), VI, 561. 34. To construct railway. The engineer of a railway company prepared a specification of the works on a proposed railway, and certain contractors fixed prices to the several items in the specification, and offered to construct the railway for the sum total of the prices affixed to the items. A contract under seal was thereupon made between the contractors and the company, by which the contractors agreed to construct and deliver the railway completed by a certain day at a sum equal .to the sum total above mentioned. If the contractors failed to proceed with the works, the company might take possession and proceed with them, in which case a valuation should be made by the engineer, or, if either party required it, by arbitration. The contract contained provisions making the certificate of the engineer conclusive between the parties ; and that all accounts relating to the contract should be submitted to and settled by the engineer, and that his certificate for the ultimate balance should be final and conclusive ; and that all questions, except such as were to be determined by the engineer, should be referred to arbitration. The rail- way was completed, and the engineer gave his final certificate as to the balance due to the contractors. The contractors had assigned their interest in the con- tract to trustees on trust for their creditors and for themselves in certain pro- portions. The contractors filed a bill against the company, making claims on several grounds, and praying an account and payment. Held, that the con- tractors could not, on mere verbal promises by the engineer, maintain against CONTEAOT. 95 the company a claim to be paid sums beyond the sums specified in the contract under seal. Sharpe v. San Paulo By. Go. (Chan. App.), VI, 516. 35. Held, that, although the amount of the works to be executed might have been understated in the engineer's specification, the contractors could not, under the circumstances, maintain any claim against the company on that ground. lb. 36. Meld, that in the absence of fraud on the part of the engineer, and where his certificate has been made a condition precedent to payment, his certificate must be conclusive between the parties. lb. 37. To manufacture. The defendants contracted with the plaintiflfs to make and supply new boilers and certain new machinery for a steamship of the plaintifis, and to alter the engines of such steamship into compound surface condensing engines, according to a specification. The engines, boilers and connections were, by the contract, to be completed in every way ready for sea so far as specified, and tried under steam, by the engineers (the defendants) previous to being handed over to the company ; the result of such trial to be to the satisfaction of the company's inspector. The price of the work was to be £5,800, and was to be paid as the-work progressed, in the following manner, viz., £2,000 when the boilers were plated, and £2,000 when the whole of the work was ready for fixing on board, and the balance, £1,800, when the work was fully completed ajid tried under steam. These payments were only to be made on the certificate of the plaintifis' inspector. The old materials removed from the ship were to become the property of the defendants. ' The specification contained elaborate provisions as to the fitting and fixing the new boilers and machinery on board the ship, and the adaptation of the old ma- chinery to the new. The boilers and other new machinery contracted for were completed, and ready to be fixed on board, and one installment of £2,000 had been paid under the csntract, when the ship was lost by perils of the sea. The value of the work actually done by the defendants under the contract amounted to £4,118. The second installment of £3,000 was subsequently paid, at the time of which payment the plaintiffs knew of the loss of the ship, but the defendants did not. The plaintiff's claimed delivery of the boilers and other machinery completed under the contract, and this being refused, unless the balance of the price was paid, brought an action for the detention of the same, or to recover back the £4,000 paid by them to the defendants. Held, that the contract was an entire and indivisible contract for work tq be done upon the plaintiff's' ship for a certain price, froin further performance of which both parties were released by the loss of the ship ; that the property in the articles manufactured was not intended to pass until they were fixed on board the ship ; and that consequently the plaintifis were not entitled to recover the boilers and machinery, nor could they recover back the money already paid as upon a failure of consideration. Anglo Egyptian Nav..Go. v. Bennie {Com. PL). XII, 345. 38. Running arrangement between railroads. By an agreement entered into between the directors of two railway companies, the N. W. Co. was to have running powers over the L. Co.'s lines, subject to the L. Co.'s by-laws; was to be at liberty to have its own staff' at the L. Co.'s stations, and be allowed a reasonable sum for cartage, clerkage, etc. The L. Co. was to be at 96 CONTKACT. liberty to call on the N. W. Co. to carry passengers and goods for the L. Co. upon the L. Co.'s local lines, and both sets of directors bound themselves to send by each other's lines all traffic not otherwise consigned. A' chief consid- eration for this agreement was an advance of money by the N. W. directors to the L. Co.'s directors, but no mention of this consideration was made in the agreement ; nor, though there were in the agreement provisions for referring to arbitration any differences that might arise as to the agreement, was there any mention of any time for which it was to endure, or how it might be ter- minated. Held, that all the provisions of the agreement showed that it was a permanent and not a terminable agreement, and that, consequently, a notice to terminate it at the end of six months from a given time was invalid. Llnnelly B,y. and Dock Co. v. London, eta., By. Go. (H. of L.), XIII, 73 • affirm- ing S. C, VII, 492. 39. Such an agreement appeared to be authorized by the 87th section of the Railways Clauses Act of 1845 (8 & 9 Vict., c. 20) ; and semble, that any difference arising between the two companies, occasioned by any hardship felt in the working of the agreement on either side, might be made the subject of arbitration under the 22 & 28 Vict.,.c. 59. lb. 40. An agreement of this kind in no way resembles contracts of part- nership, or of hiring and service, lb. 41. Tor service. The plaintiff entered the service pf the defendants under a memorandum in writing, as follows : "April 13th, 1871. I hereby agree to accept the situation as foreman of the works of Messrs. Roe & Co., flock and shoddy manufacturers, etc., and to do all that lays in my power to serve them faithfully and promote the welfare of the said firm, on my receiving a salary of £2 per week and house to live in, from the 19th of April, 1871." Meld, a weekly hiring from the 19th of April, 1871, and that evidence of a conversa- tion at the time of signing the contract, tending to show" that a hiring for a year was intended, was not admissible. Wvans v. Boe (Com. PI.), II, 116. 42. Sale to arrive. The defendants' correspondents at Valparaiso bought on their account of S. & Co. 600 tons of nitrate of soda, and, on the 16th of July, 1868, chartered the bark Precursor to bring it to England, and notified the defendants thereof. On the receipt of the advice, the defendants, on the 8th of September, made a contract, through brokers, with the plaintiff: " We have this day sold to you about 600 tons, more or less, being the entire parcel of nitrate of soda expected to arrive at port of call per Precursor, at 12«. 9(J., per cwt . * * * Should any circumstance or accident prevent the ship- ment of the nitrate, or should the vessel be lost, this contract to be void." In the mean time, on the 13th of August, an earthquake had destroyed the greater part of the nitrate of soda while lying at the port of lading ; and it having been determined by arbitration, pursuant to the contract, that S. & Co. were not bound to supply other soda, on the 2d of September, the Valparaiso house had canceled the charter of the Precursor. Afterward, on learning from the defendants that they had sold the nitrate of soda to arrive, but not on What terms, they purchased other 600 tons of nitrate of soda at above the defend- ants' limit, and obtained a transfer of a charter of the same bark Precursor, and shipped the nitrate about the 23d of December' to the defendants, to enable them to execute their contract, if obliged to do so, or to sell at a CONTKACT. 97 profit, if free. The Precursor arrived in England on the 8th of May, 1869, and the plaintiff demanded the cargo under the contract of the 8th of Sep- tember. Mdd, that the plaintiff was not entitled to the cargo. Smith v. Myers (Q. B.), I, 43. 43. Whether a contract for the sale to arrive of " 500 tons of Black Smyrna raisins — 1869 growth — fair average quality in opinion of selling ■ broker," is satisfied by a tender of raisins of " fair average quality " generally, or whether they must be of that quality of the growth of 1869. Query ? Pappa V. Base (Com. PI.), I, 87. 44. Time for delivery. In a contract for the sale of certain spars and timber which have been attached, and are at the time in possession of a guardian, appointed in legal proceedings to hold them, " to be delivered free of charge to-morrow, or as soon as they can be got out of the hands of the guardian," the words " as soon as they can be got out of the hands of the guardian," are to be construed as intending an actual getting them out of his hands, and not a mere constructive or legal title to the possession ; and if the guardian continues to hold them by legal right until the purchasers exercise their reserved right to refuse to accept, the vendors are not liable for the non- delivery. McClaren v. Murphy (Priv. C), III, 134. 45. Time for shipment. The defendant contracted for the purchase of a large quantity of Danubiaq maize, " fair average quality of the season and port of shipment when shipped. To be shipped from Danube, etc., by three or more first-class vessels. For^ shipment in June and [or] July, 1869 (old style), seller's option," etc. In fulfillment of the contract on the part of the seller two cargoes of maize were tendered to the defendant, the bills of lading for which were dated respectiv^y the 4th and 6th of June, 1869. The loading of the two cargoes was commenced, respectively, on the 12th and 16th of May and completed on the 4th and 6th of June ; somewhat more than the half Of each cargo having been put on board in May. In an action against the pur- chasers -for non-acceptance, there was evidence that grain shipped in May was more likely to damage by heating than grain shipped in June. It was left to the jury to say whether, in their opinion, the cargoes in question were " June shipments " in the ordinary business sense of the term ; and they found that they were. The judge was of the same opinion, and directed a verdict for the plaintiff, which was sustained on appeal ; but the judges disagreed as to whether the question was one for the jury. Alexander v. Vanderzee (Com. PI.), Ill, 379. 46. Warranty. Where plans and a specification, for the execution of a certain work, are prepared for the use of those who are asked to tender for its execution, the person asking for the tenders does not enter into any implied warranty that the work can be successfully executed according to such plans and specification. Thorn v. Mayor of London (App. Cas.), XV, 28 ; affirming S. C, XII, 535, and IX, 475. 47. The contractor for the work cannot, therefore, sustain an action for damages, as upon a warranty, should it turn out that he could not execute it according to such plans and specification. lb. 48. T. contracted with the defendants to take down an old bridge and build a new one. Plans and a specification prepared by the defendants' en- 13 98 CONTKACT. gineer were furnished to him, and he was required to obey the directions of the engineer. The descriptions given were stated to be " believed to be correct," but were not guaranteed ; and, in one particular matter at least, he was warned to make examination for himself. Part of the plan consisted in the use of caissons. These turned out to be of no value, and the work done in attempt- ing to use them was wholly lost, and the bridge had to be built in a different manner. In this way mach labor and time were wasted. The contract con- tained provisions as to the payment for extra work, and that work had (with the contract work) been duly paid for. The contractor sought for compensa- tion for his loss of time and labor occasioned by the failure of the caissons, and in his declaration alleged that the defendants had warranted that the bridge could be inexpensively built according to the plans and 'specification. There was no express warranty to that effect in the contract. Held, that none could be implied. lb. 49. SemUe, that if he had any remedy under these circumstancfes, it was not in an action for daipages as for breach of warranty, but for compensation as upon a quantum meruit. lb.- 50. Repudiation. It seems that an absolute unconditional repudiation of a contract for future service, and refusal to perform, declared to the promisee before the time for performance arrives, is a breach thereof if he chooses to so consider it, and he may sue thereon immediately. Prost v. Knight (Exch.), I, 318. 51. In case of a contract to be performed at a future time, if prior to that time the party bound to performance announces his intention not to per- form it, the promisee may, if he pleases, treat the notice of intention as in- operative, and await the time when the contract is to be executed, and then hold the other party responsible for his damages ; but, in that case, he keeps the contract alive for the benefit of the other party as well as himself ; or he may treat the repudiation as a wrongful putting an end to the contract, and bring his action immediately, as on a breach of it, and recover such damages as would have arisen from its non-performance at the appointed time ; subject, however, to abatement in respect to any circumstances which may have afforded him the means of investigating his loss. Boper v. Johnson (Com. PI.), IV, 397. 52. Alteration. The plaintiff was employed by the defendant to erect buildings on the defendant's land, upon written conditions, which, after being signed, were kept on the defendant's behalf by his architect. One of the con- ditions made the architect's certificate a condition precedent to the right to payment. The plaintiff, having been paid fbr all the works for which the' architect had certified, sued apon a quantum meruit in respect of works for which no certificate had been given. The defendant, in answer, set up the conditions, in which appeared an erasure in a material part. The j ury having found that the erasure was made by the architect after the plaintiff had signed, the plaintiff contended that the document was void, and that he might sue on a quantum meruit. Held, that, notwithstanding the erasure, the con- ditions were either still the governing document, or at least must be looked at to see what were the real terms of the contract, and that the plaintiff could not recover. Pattinaon v. Luckley (Exch.), XIV, 579. 53. Determination by notice. The defendant agreed to serve the plaintiff CONTEACT. CONTRIBUTION. 99 as a traveler and agent " for twelve months certain, after which time either party should be at liberty to terminate the agreement by giving the other a three months' notice." Held (Kelly, C. B., dissenting), that at the close of the twelve months the -agreement could be determined by either party with- out any notice, and that the stipulation as to a three months' notice only applied in case the engagement was prolonged beyond the twelve months. Langton v. Oarleton (Exch.), VIII, 507. 54. Rescission. After a decree for specific performance of a contract to take a lease of a house, and an order on further consideration for payment of the sums certified to be due from him (for costs and damages), defendant hav- ing absconded without paying the amount, the court, on motion by plaintiff, ordered the contract to be rescinded and all further proceedings in the suit stayed, except as to the recovery of the sums already ordered to be paid. WaUon V. Cox (Eq. C), V, 816. 55. A telegraph works company agreed with a telegraph cable com- pany to lay a cable, the cable to be paid for by a sum payable when the cable was begun, and by twelve installments, payable on certificates by the cable company's engineer, who was named in the contract. Shortly afterward the engineer, who was engaged to lay other cables for the works company, agreed with them to lay this cable also for a sum of money to be paid to him by installments, payable by the works company when they received the install- ments from the cable company. Held, that under the circumstances the agree- ment between the engineer, and the works company was a fraud, which entitled the cable company to have their contract rescinded, and to receive back the money which they had paid under that contract. Panama, etc^ Tele- graph Go. V. India Jlvbber, etc., Works Co. (Chan. App.), XIV, 759. 56. P«r .James, L. J. : Any surreptitious dealing between one princi- pal to a contract and the agent of the other principal is a fraud in equity, and entitles the last-named principal to have the contract rescinded, and to refuse to proceed with it in any bhape. lb. 57. Per Mbllish, L. J. : As the works company had, by their fraudu- lent conduct, prevented the cable company from having the full benefit of the contract, the cable company were entitled to have the contract rescinded. lb. 58. Although the. guardians of the poor for many years pay a weekly sum for the maintenance of a criminal lunatic, for whom they are chargeable, who has been removed to an asylum by legal authority, without an order of justices for such payment, no contract to pay that sum until such lunatic is legally removed can properly be implied, but such guardians can put an end to their liability by a notice that they will no longer be responsible. Pegge v. The Qua/rdiangof the Lam/peter Union (Com. PI.), X, 208; reversing S. C, II, 668. /Sfe« Bbbach OF Promise; Cabbihk; Fradds, Statute op; Sale; Vendor AND Vendee. CONTRIBUTION. 1. By legatees. Notice of a remote contingent liability on the part of a testator is not sufficient to prevent his executor from distributing his residuary estate ; and if the executor distributes with such notice, and the liability after- 100 CONTEIBUTION. CO]SrVBESIO]Sr OP EBALTY. ward ripens into a debt, he will be entitled to call on the residuary legatees to refund. Jerms v. Wolferstan (Eq. C), IX, 674. 2. A person who has covenanted to bequeath or otherwise provide that a share of his estate shall go the covenantee, fulfills his covenant by bequeathing the share to the covenantee, who then stands in the same position as any other legatee. lb. 3. The testator had, by the settlement made on the marriage of one of his daughters, covenanted to bequeath or otherwise provide that a certain share of his residuary estate should go to her ; and it was by the same settle- ment agreed that such share should be paid to the trustees and held by them on the trusts of the settlement. The testator accordingly bequeathed the proper share to his daughter, and it was paid by the executors to the trustees of the settlement. Held, that the trustees were liable to refund equally with the other residuary legatees. lb. 4. An executor who compels a legatee to refund can recover only the capital sum which he has paid to the legatee, without any intermediate in- come, lb. See Insubanck, Makinb ; Public Company. CiONVERSION. Assuming control. The plaintiffs sent to the defendant an invoice for bar- ley, which stated that the barley was bought by the defendant of the plain- tiffs through G. , as broker, and also a delivery order, which made the barley deliverable to the order of the consignor or consignee. The defendant had not in fact ordered any barley of the plaintiffs. G. called on the defendant, who showed him the documents, and told him it was a mfstake. G. said that it was so, and asked the defendant to indorse the order to him, for the pur- pose, as he said, of saving the expense of obtaining a fresh delivery order. The defendant indorsed the order to G., who possessed himself of the barley and disposed of it, and then absconded. On the trial of an action of trover for the barley, the jury found that the defendant had no intention of appro- priating the barley to his own use, but indorsed the order for the purpose of correcting what he believed to be an error, and returning the barley to the plaintiffs. Meld, that the defendant having indorsed the order without any occasion to do so, and without authority, was liable. Hiort v. Bott (Bxch.), VIII, 529. CONVERSION OF REALTY. • What amounts to. A testator, after giving certain legacies, devised a free- hold house to A., B. and C, in trust for sale, the proceeds to be considered part of his personal estate, and gave his residuary real and personal estate to A., B. and C. A., B. and C. paid all the legacies except two out of other parts of the testator's estate, and kept the house unsold, granting a lease of it to a tenant. The house remained unsold for fifty years, and the two legatees per- mitted their legacies to remain during all that time unpaid, without requiring a sale or any formal security on the house. Held, in a suit by the personal representative of C. against the real and personal representatives of the testa- tor for the administration of his estate, that A. , B. and 0. had by their con- CONVEYANCE. 101 duct elected to take the house as reconverted into.real estate ; that the assent of the unpaid legatees might be inferred, and bill dismissed accordingly. Mutlote V. Bigg (Chan. Div.), XV, 803 ; reversing on further evidence, S. C, IX, 784. See Will. CONVEYANCE. 1. Description. A deed granted property by the description of " All that copyhold tenement called Greys, consisting of a house with divers parcels of land containing 103 acres (that is to say) " then followed parcels, concluding with " a parcel of land running with G. Moor, containing twenty-seven acres, which said tenement called Greys, is now held for the life of G. H., by copy of court roll." Held, that on the construction of this grant, a piece of uuin- closed land containing twenty-seven acres, and forming part of the waste of the manor, and proved never to have been a part of the copyhold tenement, did not pass, although there was nothing else to answer the twenty-seven acres mentioned in the. deed, and the 103 acres could not be made up without it. Sext V. CfiU (Chan. App.), Ill, 574. 2. Boundaries. The plaintiff, having agreed to purchase two adjoining houses, agreed to sell one to P., and by plaintiff's direction that house was con- veyed to P. (and by him to defendant) in fee, the description being " all that dwelling-house now in the occupation of P." The houses were in a street, and were built up to the foot pavement. On the front of defendant's house, at the side which adjoined the plaintiff's, was a slight projection nine feet wide, in the middle of this was the doorway, three and a' half feet wide, and on each side of the doorway was a pillar supporting a shallow portico ; over the door- way was a window of the same width, and above that a pediment ; all sym- metrically placed on the nine feet projection. Inside, the party wall dividing the two houses, instead of being coincident with the extremity of the nine feet projection, was in a direct line with one side of the doorway, so that, if the party wall had been prolonged in a straight line to the street, two feet eleven inches of the width of the projection, which included part of the portico and of the pediment and the whole of one of the pillars supporting the portico, would have been on the plaintiff's side of that line ; and on the inside, these two feet eleven inches, which from the outside appeared to be part of defendant's house, formed part of the wall of the front room of plain- tiff's house. The defendant having painted the two pillars, the portico, and the whole of the pediment, which were stucco, plaintiff brought an action of trespass, claiming as his the one pillar, the part of the portico, and the part of the pediment over the pillar. Held, that the disputed parts belonged 'to the defendant, and passed by the conveyance. Fox v. Oiark (Q. B.) X, 178 ; reversing S. C, III, 291. 3. Reservation of minerals. In 1799, the Duke of Cornwall, as lord of a manor, granted the freehold in a copyhold tenement to the copyholder, reserv- ing " all mines and minerals within and under the premises with full and free, liberty of ingress, egress, and regress, to dig and search for, and to take, use and work the said excepted mines and lyinerals," the deed not containing any provision for compensation. Under the tenement was a bed of china 103 CONVEYANCE. COPYEIGHT. clay, the existence of wlaich did not appear to have been contemplated by either party at the time, no china clay having ever been gotten 'out of the lands of the duchy, though the existence of tin was well known. It was admitted in the cause that china clay could not be gotten without totally destroying the , surface, and the process of getting tin by " streaming," which was an ancient, and at the time of the grant the most usual mode of getting tin, was almost equally destructive. A bill by the owner of the surface to restrain the owner of the minerals from getting china clay having been dismissed by Wickbns, V. C, on the ground that the reservation included china clay with the power to get it, held, on appeal, that the china clay was included in the reservation, but that the surface owner was entitled to an injunction to restrain the owner of the minerals from getting it in such a way as to destroy or seriously injure the surface. Hext v. Oill (Chan. App.), Ill, 574. 4. When a landowner sells the surface, reserving to himself the min- erals with power to get them, he must, if he intends to have power to get them in a way which will destroy the surface, fr^me the reservation in such a way as to show clearly that he is intended to have that power. lb. See Party Wall. COPYRIGHT. 1. What the subject o£ A tradesman who employs another for remu- neration to compile a book of defeigns for him^is himself entitled to copyright in the book. A book in the nature of an advertising catalogue may be the subject of copyright. Qraee v. Nevmian (Eq. C.) XIII, 553. 2. PlaintiflF, a cemetery stone mason, employed and remunerated a per- son to collect monumental designs, and published a book containing sketches of such designs, with scarcely any letter-press. Held, that the plaintiff had copy- right in the book, and was entitled to an injunction to restrain the publication of designs copied from it. lb. 3. There is no copyright in a descriptive advertisement. Illustrated or. otherwise, of articles which any one may sell. Odbhett, v. Woodward (Eq. C), III, 795. 4. Where an upholsterer, who had published an illustrated furnishing guide, with engravings of the articles of furniture, which he sold, and descriptive relnarks thereon, filed a bill to restrain the defendant, another upholsterer, from publishing, for the purposes of his own trade, a similar work, in which many of the said engravings and portions of the letter-press of the first work were alleged to be copied, lield, that the defendant could not be restrained by injunction from so copying the plaintiff's illustrations, or such part of his work as was not original, but merely descriptive of his stock, or of common articles of furniture ; but that, the defendant's work being a flagrant imitation of the plaintiff's, he could be allowed no costs. lb. 5. Title of book. The plaintiff, the publisher of a work which he claimed to have originated, called The Birthday Scripture Text Booh, consisting of n, printed diary interleaved, with a blank space opposite each day, with a text of scripture appended, and which was designed as a record of the birthdays of friends, held, entitled to an injunction to restrain the defendants from pub- lishing and selling a work subsequent to the plaintiff's, called The Children's COPYRIGHT, 103 Birtliday Text Booh, on the ground that it was an infringement of the plain- tiff's copyright in the title of his work, as well as a colorable imitation of the same. Mack v. Fetter (Eq. C), III, '809. 6. Proprietorship. Where prints, engravings, and similar articles are the property of a trading firm, the proprietorship is snfficiently designated for the purpose of obtaining the protection of the Copyright of Designs Acts, by printing upon them the trading name of the firm, even though it does not con- tain the names of all the partners in the business. Book v. Lazarus (Eq. C), V, 743. 7. Infringement, what is. The plaintiffs are the proprietors of a weekly periodical called ^' Punch." Between the years 1849 and 1867, they published in nine several numbers nine cartoons, with descriptive writing underneath them, with reference to the Emperor Napoleon III. In 1871, the defendant published a work called " The Man of his Time," consisting, first, of the " Story of the Life of Napoleon III, by James M. Haswell ; " and, secondly, of " The same Story as told by Popular Caricaturists of the last Thirty Years." Among the caricatures in part 2 were copies in a reduced form, sometimes with and sometimes without the descriptive writing, of the nine cartoons, above mentioned. No consent from the plaintiffs to this .reproduction had been obtained. In an action by them for infringement of their copyright in the several books or " sheets of letter-press " containing the cartoons, held, that a substantial part of the plaintiffs' books, or sheets of letter-press, had been appropriated, and that they were entitled to recover. Bradbury v. Hot- ten (Exch.), IV, 413. 8. To constitute an infringement of dramatic copyright under 3 & 4 Wm. 4, c. 15; s. 3, a material and substantial part of the plaintiff's dramatic production' must be pirated. Though an appreciable part be taken, it does not follow as a consequence of law that the plaintifE's right is infringed, if such part be of a very unessential nature, or very unimportant and trifling in relation to the -effect of the whole composition. Ghatterton v. Cave (Com. PI.), XIV, 437. 9. An authoress who was a married woman entered into a verbal agree- ment with a publisher, that he should publish a work at his own expense and pay her a royalty on the copies sold. The work was accordingly published, but before all the copies were sold, the authoress arranged with another pub- lisher to bring out a second edition of the same work. Seld, that no agree- ment could be implied on the part of the authoress not to bring out another edition until all the first edition was sold, and that a suit against the authoress and her husband and the second publisher to restrain such publication could not be sustained. Warne v. Boutledge (Eq. C), X, 811. 10. Semble, a married woman, entitled to the copyright of a work for her separate use, might enter into such a contract with a publisher for its publication as to bind herself during a definite period not to grant a license to publish the work to any other person, and such a contract would be enforce- able against a licensee with notice. lb. 11. Right to dramatize. H. wrote and published a novel which he after- ward dramatized. , He assigned the drama to the plaintiff, but it was never printed, published or represented upon the stage. G., in ignorance of H.'s, 104 COKPOEATION. drama, also dramatized the novel in a diflfereut form and assi^ed his drama to the defendant, who represented it on the stage. Held, that A. having pub- lished his novel, any one might dramatize it ; and although the two dramas were founded upon the novel written by H., the representation upon the stage of the drama written by G. was not a representation of the drama written bj H. ; and that the plaintiflF could therefore not recover penalties from the defendant under 3 & 4 Wm. 4, c. 15, ss. 1 and 2. Toole v. Young (Q. B.), X, 153. 12. Acquiescence in piracy. The 26th section of the Copyright Act (5 & 6 Vict., c. 45) does not apply to prevent a suit for an injunction to restrain a piracy of copyright by sale of a book published more than twelve months before bill filed. Mere delay in taking proceedings after knowledge of a piracy is not in itself such acquiescence as will deprive a plaintiff of his right to an injunction at the hearing. Sogg v. Scott (Eq. C), X, 763. CORPORATION. 1. Powers of directors. It is not a mere canon of English mui^cipal law, but a great and broad principle, which must be taken (in the absence of proof to the contrary) as part of any given system of jurisprudence, that the govern- ing body of a corporation which is a trading partnership — that is to say, the ultimate authority within the society itself — cannot, in general, use the funds of the community for any purpose other than those for which they were con- tributed. Therefore the special powers given to such ultimate authority — whether it be the directors or a general council, or a majority at a general meeting, by the statutes or other constituent documents of the association . (however absolute in terms), are always to be construed as subject to a para- mount and inherent restriction that they are to be exercised in subjection to the special purposes of the original bond of association. Pickering .v. StepTien- son (Eq. C), III, 754. 2. English directors of a foreign railway company, which was subject to Turkish law (as to which there was no evidence before the court), were restrained from applying the funds of the company in the further payment of the costs of a prosecution for libel, brought by them against a person who had acted as secretary to a committee of the company ; but were not, under the circumstances of the case, ordered to repay the amount of certain of the costs already so satisfied by them. lb. 3. Liability of directors. Three directors of a railway company opened, on ' behalf of the company, an account with a bank, and sent a letter signed by the three as directors, requesting the bank to honor checks signed by two of the directors and countersigned by the secretary. The account having been largely overdrawn by means of such checks, the bank sued the company at law, recovered judgment in 1865, and issued an elegit. The proceeds being insufficient to satisfy the debt, the bank filed a bill to make the directors per- sonally liable. Held, that the letter did not make the directors personally responsible for the debt, for that, assuming the letter to contain a representa- tion that the directors had power to overdraw the account, and such represen- tation to be erroneous, this was not a misrepresentation of fact which the persons making it were bound to make good, but only a mistaken representa- tion of the law ; and moreover, that even if it had been such a false represen- tation as the directors were bound to make good, the bank would have had no COEPORATION. 105 claim against them, since it had been able to enforce the same remedies against the company as if the representation had been true. Beattie v. Lord Ebury (Chan. App.) Ill, 625. 4. Senible, that the letter did not involve any representation that the directors ha& any other power than the ordinary powers of directors. lb. 5. In 1864 a negotiation took place between the company and the bank as to the company giving security for the overdrawn account, and in December, 1864, the bank manager wrote to the secretary of the company, " I am directed to apply to you for a transfer of at least £20,000 of the unissued preference shares into the joint names of myself and J. A. B., to be held for the bank as collateral security, and I am to request that your unissued debentures are to be transferred into the same names, you undertaking to do this when you are in a position to issue them." The secretary replied that the directors assented, and had directed him to allot the shares to the bank manager and J. A. B. as collateral security. In the following month, the company having sanctioned the issue of the preference shares, the secretary wrote, " I am now prepared to place the shares and debentifres named in your letter in your possession as collateral security to the bank. I propose, as the course usually adopted in such cases, to register the shares in the names of two of the directors of the company, who will execute a transfer of them to you and J. A. B. on a mutual understanding that they are to be held by you only as collateral security for the debt due to the bank." The manager replied, "lam quite prepared to accept the shares and debentures as collateral security pending your disposal of them." Preference shares were accordingly issued to two of the directors, and transferred by them to the bank manager and J. A. B., and debentures given to the same two directors, which were similarly transferred. Nothing had been paid on the shares, and the company were not yet in a position legally to issue the debentures. Sdd, that the above circumstances did not make the directors personally liable, and that, on the construction of the correspond- ence, the directors had not made any representation that the shares and de- bentures were valid and fully paid-up shares and debentures, but the nature of the agreement was only that the shares and debentures should be placed under the control of the bank, so that when they were taken up by the public the money paid for them must come to the hands of Ihe bank. lb. 5. Removal of ofiScer. Though a corporation may have, by statute, a power to remove one of its officers holding a freehold office, the Court of Queen's Bench will see that that power is exercised in a lawful manner, and will inter- fere if it should not be so. But if exercised in a lawful manner, that court will refuse to interfere on the mere ground that the power has not been wisely or discreetly put in force in the particular case. Osgood v. Nelson (H. of L.), IV, 37. 6. In the case of removal from office of an officer of the corporation upon an accusation of inability or neglect of duty, if ihere has been such evidence given as on an ordinary trial would justify the judge in leaving it to a jury to say, as a matter of fact, whether the accusation was made out, the court will not interfere with the decision arrived at by the corpora- tion, lb. 7. A corporate body having the power to dismiss one of its officers 14: .106 COKPORATION. COSTS. holding a freehold office, on complaint against him referred to a committee of its own body ihe task of examining into the complaint, and receiving evidence upon it and reporting thereon. The committee performed this duty. The report and evidence were duly furnished to the inculpated officer, who was then called on for his defense. He was afforded the opportunity of being heard, and counsel was heard for him, but the corporate body itself did not rehear the evidence. He was ordered to be dismissed from his office. Held, that this was not a case of delegation of lawful authority, but was a due exer- cise of that authority by the corporate body itself. lb. 8. Per Lord Colonsay : The proceedings in this case were not to be assimilated to a criminal proceeding, but were to be treated in the nature of an official inquiry. lb. 9. The 13 & 14 Vict., u. 61, gave to the Lord Chancellor the power to remove from office the registrars of county courts. The 15 & 16 Vict., c. 77 (local), declared the mayor, aldermen and commons, in common council as- sembled, entitled to appoint the chief clerk of the London (city) Small Debts Court, and " for inability or misbehavior, or iter any other cause which may appear reasonable to the mayor and council, to remove " the said clerk. The 19 & 20 Vict., u. 108, directed previous county court statutes to be read as part of that statute, and that the chief clerk of a county court should thenceforth be called " the registrar." The 28 & 29 Vict., c. 99 (regulating county courts in general), directed that the chief clerk and chief bailiff of the city court should thenceforward be styled the registrar and the high bailiff, and that the city court should have the same powers, etc., as a metropolitan county court ; and it also incorporated with itself all the preceding public statutes relating to the county courts. Held, that the specific enactment in the 15 & 16 Vict., 0. 77 (local), as to the power of amotion from the office of registrar to be exer- cised by the mayor, etc., in common council assembled, was not taken away by the effect of the general statutes, biit still existed in that body. Held, also, that " reasonable " cause in the act meant " just cause." lb. 10. Action against. A foreign corporation carrying on business in England, although not incorporated according to English law, may be sued as defend- ants in an English court in respect of a cause of action which arose within the jurisdiction. So held, on motion to set aside service of writ. Newby v. Von Oppen & Colts P. F. Manuf. Go. (Q. B.), I, 333. H. Such a corporation, having an office and doing business in England, must be deemed a resident ; and service of a writ of summons on the' head officer of the English branch is good service, and it is not necessary to serve the process on the officer at head office abroad. lb. See Bankkuptcy ; Fbaitd ; Pkhjcipal and Agent ; Public Company. COSTS. 1. Who entitled to. On appeal in chancery by a plaintiff who has been ordered to pay the costs of one of the respondents, if he gives notice to such respondent that no alteration in the order as to his costs is asked for, and offers to pay them, such respondent is not entitled to costs of his subsequent appearance on the appeal. Upmann v. Elkan (Chan. App.), I, 474. COSTS. 107 2. An appellant who succeeds only upon a ground not raised below wiU be cliarge"d with the costs of the original hearing. JSke parts' Harris ; In re James (Eq. C), XI, 839. 3. Charges of fraud unsustained. A plaintiff who wantonly or recklessly makes unfounded charges of fraud against the defendant, which are not sus- tained by proof, may be charged with costs, although the relief sought by him ' is granted on another ground. Parker v. McKenna (Chan. App.), XI, 456. 4. Decree modified. "Where a decree granted by the Vice-Chancellor for the relief asked by the plaintiff, with costs, was reversed on appeal by the Lord Chancellor, but was restored in a, modified form on a further appeal to the House of Lords, costs were given to the plaintiff on the original decree, but no costs on the appeals. Liquidators of Imperial Merc. Cred. Ass'n v. Coleman (H. of L.), VI, 18. 5. Nominal plaintiff. Where a suit was brought against husband and wife in the name of one who was entitled to an income out of estate bequeathed to the defendants, but such suit was in reality that of the wife, held, that ■ no costs should be allowed the nominal plaintiff. Norris v. Frazer (Eq. C), V, 864. 6. No property recovered. A bill was filed alleging that the defendant had built so as to obstruct the plaintiffs ancient lights, and was proceeding to build so as further to obstruct them, and asking for an injunction against fur- ther building, and a, mandatory injunction to pull down part of what had been built. An interlocutory injunction was granted against building higher, and the suit was afterward compromised on the terms that the building should remain of ' its then height. The defendant having become bankrupt, his solicitor petitioned to have his costs made a charge on the defendant's property to which the suit related. Held, that no property had been recovered or pre- served within the meaning of 23 & 24 Vict., c. 137, s. 38. Foxon v. Oascoigne (Chan. App.), X, 651. 7. A suit which only relates to an easement is not a, suit in which it can be said that property is recovered or preserved, even though a mandatory injunction for pulling down buildings is refused. lb. 8. Question as to title. Where a question is raised by summons under the Vendor and Purchaser Act of 1874, s. 9, in respect to the title to estate charged, the declaration ought to be made without costs. Matter of Coward's Purchase (Eq. C), XIII, 712. 9. Suit for settling contributories. In a proceeding to wind up a joint-stock company, and to have persons who had transferred their stock, put upon the lists of contributories, where there was a great difference of opinions between judges, and the proceedings of the company and of the defendant, though irregular, were not fraudulent," no costs were given. Murry v. Bush (H. of L.), V, 1. 10. Action on contract. In an action against a hackney carriage proprietor for not securely carrying certain luggage belonging to a person who had' hired his carriage, the declaration alleged that in consideration that the plaintiff would with her luggage become a passenger in such carriage, and of certain reward to be paid to the defendant by the plaintiff in that behalf, the defend- ant promised to carry the plaintiff and her luggage safely, and that the 108 COSTS. defendant, not regarding his duty as hackney carriage proprietor, nor his said promise, did not safely carry the plaintiff's luggage, hut so carelessly and negligently conducted himself, that part of the said luggage was lost. The plaintiff having recovered the sum of £30 in the action, held, that she was deprived of costs by the County Courts Act, 1867, s. 5, the cause of action as set forth in the declaration being founded on contract. Ba/ylis v. Lintott (Com. PI.), V, 319. ' ■ 11. Action to enforce trusts. In an action by legatees to enforce the trusts of a will in their favor, the costs of the plaintiffs may be given out of the estate, although they are unsuccessful in the action. LeigMon v. Leighton (Eq. C), X, 774. 12. Administration suit. In an administration suit by a mortgagee, who has obtained an order for sale of the real and leasehold estate for payment of his debt, the personal representatives of the testator are entitled, in case of deficiency of assets, to their own costs, charges and expenses, in priority to the plaintiff's costs of the sale. Upenaley v. Harrison (Bq, C), V, 685. 13. The plaintiff in an administration suit was a specific devisee, and also claimed to be a creditor of the testator. His title as devisee was admitted, but he failed to establish his claim as a creditor. Held, that he must pay the costs of his unsuccessful attempt to establish his claim as a creditor. Lance- fleld v. Iggulden (Chan. App.), XI, 493 ; reversing S. C, IX, 653. 14. Contest of frill. The court allowed costs out of the estate to the unsuc- cessful opponent of a will, although he had pleaded undue influence and fraud, being of opinion that the mode in which the testator had executed the will and the conduct of the person beneficially interested under it had reasonably excited doubt and suspicion, and justified those pleas. Orton v. Smith (Prob. & Div.), V, 518. 16. A married woman having a power of appointment over certain funds executed the same by will in favor of her husband. The funds were handed over to the husband in the lifetime of his wife, and by him transferred to the trustees of a settlement made in anticipation of the marriage of his adopted daughter. The husband survived his wife, but did not prove her will, and died possessed of property of only nominal value. Subsequently his representative propounded the will of the married woman and was opposed by her next of kin. A copy of it was pronounced for, and the costs of the next of kin ordered to be paid out of the deceased's estate. Held, that there was no property out of which such costs could be paid. Adamson v. Ham- mond (Prob. & Div.), VIII, 630. 16. Of appeal. Where a mortgagee appeals from the decision of a court below, and the decision is reversed, he will be allowed to add his costs of the appeal to his mortgage charge. Addison v. Cox (Chan. App.), IV, 765. 17. Proceedings to acquire laud. Where land, the subject of a life estate, is taken compulsorily by a railway company for its road, the costs charged and expenses of the life tenant in proceedings to obtain compensation may be taken out of the purchase-money before investment thereof. In re Strathmor^s Estates (Bq. C), IX, 848. 18. To abide event. If a rule for a new trial contains the term " costs to abide the event," the "event" whereon the costs will depend is the event of COSTS. COVENANT. 109 the fresh contest as to the particular ground of dispute in respect of which the court granted the rule. Jones v. Williams (Q. B.), V, 234. 19. For judges' notes. The stamp of 5s. on bespeaking judges' notes is sufficient only where the cause is tried before a judge of the court in which the rule nisi is granted. Where the trial is had before a judge of another court, a further fee of 6(i. per folio is payable. Mvans v. Soe (Com. PL), II, 116. • See Admibaltt ; Attorney ; Executors, etc. ; Fraud ; Husband and Wipe ; Legacy; Wiu^. COUNSEL — See Attorney; Notice. COtJNTERCLAIM— See Sbt-Off. COUETS— See Jurisdiction. COURT OF CLAIMS — See Petition of Bight. COUET-MARTIAL — See Witness. COVENANT. 1. When implied. By deed of July, 1853, after reciting a lease of the 10th of March, 1847, from E. F., to defendant, for the lives of A.; B., and C, and the survivors or survivor of them, defendant conveyed the premises to plain- tiffs, to hold for the lives of A., B., and C, and the survivors or survivor of them, and covenanted that the said lease of the 10th of March, 1847, is a good, valid, and subsisting lease in the lawj for the lives of the said A., B., and C, and the survivors or Survivor of them, and is not forfeited, surren- dered, or become void or voidable., B. having died before July, 1853, plain- tiffs sued defendant for a breach of the covenant. Meld, that the mention of the three lives was mere matter of description, and that the covenant only amounted to a covenant that the lease was still subsisting, and not to an ipiplied covenant that the three lives were still in existence. Coates v. Col- lins (Q. B.), I, 47. 2. When runs with land. The owner of some land sold a part of it and entered into an agreement with the purchaser that an adjoining plot of land " should never be hereafter sold, but left for the common benefit of both par- ties and their successors." Meld, that this was merely an agreement that the plot of land should be left open, in the state in which it then was, for the common advantage of both parties, and that such an agreement did not con- travene any rule pf law, but gave the person who might hold the vendee's land the right to enforce the obligation against the person who might hold the vendor's land. Thus the former might apply to a court of equity to order the removal of a structure that had been placed on the plot in violation of the agreement. McLean v. McKay (Priv. C), VIII, 251. 3. In restraint of trade. A covenant by a clerk and traveler with a firm of brewers that he would not during his service, or within two years afterward, 110 COVETSTANT. • . either directly or indirectly, sell, procure orders for, or rocotamend, or be in anywise concerned or engaged in the sale or recommendation, either on his own account, or for any other person, public company or corporation, of any Burton ale or porter brewed at Burton, or oflfered for sale as such, other than the ale, beer, or porter brewed by the plaintiffs. Held, void, as unnecessarily extensive. Alsopp v. Wheatcroft (Eq. C), V, 714. 4. Breach, what is. The plaintiff purchased two of several plots of build- ing land of which the defendant was mortgagee in fee. The conveyance, to which the defendant and the mortgagor were both parties, contained a grant of a right of way in these terms : "Together with full and free _ right and liberty for the grantee, his heirs, etc., at all times and for all purposes, etc., with or without horses, carriages, etc., to pass and repass over and along the roads or intended roads and ways delineated in the plan," and also a covenant hy the defendant that he had not " done, omitted, or knowingly suffered or })een party or privy to any thing whereby the premises conveyed, or any part thereof, were or might be impeached, affected, or incumbered in title, estate, or other- wise howsoever, or whereby he was in anywise hindered from granting and re- leasing the same premises, or any part thereof, in manner aforesaid." Another plot had previously been sold to A. In the conveyance to A. (to which the defendant as mortgagee was a party), the mortgagor covenanted with A. that he would at his own expense " pave and complete and make fit for use, and at all times maintain in good repair, a private road, the site of which private road is marked ' Private Road' A. B.' on the plan drawn in the margin of these presents (describing it), and will make such road of a width of not less than forty feet throughout its entire length.'' This was the road over which a right of way was granted to the plaintiff in his conveyance. In this deed was also a proviso that' it should be lawful for A. "to erect and maintain a porte-cochere or projection extending over the foot-pavement of the said private road marked A. B., provided that the plan thereof be submitted to the mortgagor, and approved of by him.'' This portico when finished pro- jected about two feet into the carriage-way of the private road A. B., but there was ample space left for the convenient enjoyment by the plaintiff of the way granted to him. Held, that, there being no substantial interference with the right of way or easement granted to the plaintiff, he was not entitled to main tain an action against the defendant upon his covenant ; but, that, if there had been such interference with any right of the plaintiff, however small the damage, the defendant was sufficiently a " party or privy " to the conveyance to A. as to have rendered him liable. Gilford v. Hoare, (Cbm. PI.), IX, 449. 5. Continuing breach. In 1844 the defendant was party to a twenty-one years' lease of coal mines, which gave certain powers over the surface inci- dental to the working of those mines and an adjoining colliery. The coals so demised were substantially worked out before September, 1845. In October, 1845, the defendant sold and conveyed the land to J. , who knew of the work- ings, and the defendant covenanted with him for title, for quiet enjoyment, and against incumbrances. In July, 1846, J. sold and conveyed to the plaintiff, who was ignorant of the workings. In 1865, in consequence of the mining operations above described, the land subsided, and houses built on it by J. and the plaintiff were damaged. In 1848, subsequently t(» the plaintiff becoming owner of the land, and within twenty years before action, the lessees, or per- COVENANT. CEIMINAL LAW. Ill sons acting under their authority, entered the mines and took some fire-clay (which was not included in the demise) and a few loose pieces of coal. In an action brought on the above covenants, the declaration in which alleged that whilst the plaintiff was seized the lessees entered upon the land, and worked, got and carried away the coal, whereby the plaintiff lost the coal, and the land subsided. Seld, by BRAirtVEaiL and Clbasby, BB., first, that the fact of the coals having been worked out was no breach of the covenant for title, J. never having bought those coals ; that the subsistence of the lease in respect of the coal left unwrought and the powers (not exercised) incident to the working of other collieries, did not constitute a breach ; that the breach (if any) was com- plete in the time of J., and (by Bb am WELL, B.) that the action was -barred by the Statute of Limitations. Spoor v. Oreen (Exch.), VIII, 540. 6. Secondly, that neither the acts of trespass in taking the fireclay, in 1848, nor the subsidence caused in 1865 by the workings in 1845 were breaches of the covenant for quiet enjoyment, on the ground that the first was a mere trespass, and that as to the second, the subsidence gave no new cause of action, the principle of Bonomi v. Backhouse, 9 H. L. C. 503, not applying to a case where the subsidence is caused by a wrongful taking of the plaintiff's min- erals, lb. 7. By Kelly, C.B., first, that the subsistence of the lease was a contin- uing breach of the covenant for title, in respefct of which the plaintiff was entitled to nominal damages. lb. 8. Secondly, that the removal of the small pieces of coal, in 1848, was a breach of the covenant for quiet enjoyment, in respect of which the plaintiff was also entitled to nominal damages. lb. 9. Thirdly, that the removal of the coal by the lessees being lawful, the subsidence in 1865 gave a new cause of action to the plaintiff. lb. See CoNTKACT ; Landlord and Tenant ; Mines ; Railway Company ; Set- tlement. CREDITORS' SUIT — See Limitations, Statute op CRIMINAL LAW. I.' Crimes and mibdembanorb • Ill II. Indictment ; defenses 134 III. Evidencb 138 IV. Practice 146 I. Crimes and misdemeanors. 1. Abduction. One who. takes an unmarried girl, under the age of sixteen years, out of the possession- and against the will of her father or mother, is guilty of an offense under 34&25 Vict., c. 100, s. 55, although he may not have had any bad motive in taking her away, nor means of. ascertaining her age, and although she was willing to go. Begina v. Booth (Cox's C. C), IV, 521. 2. The prisoner was convicted under 24 & 25 Vict., c. 100, s. 55, of unlaw- fully taking an unmarried girl under the age of sixteen, out of the possession 112 CEIMINAL LAW. and against the will of her father. It was proved that the prisoner did take the girl, and that she was under sixteen, but that he iona fide believed and had reasonable ground for believing that she was over sixteen. Held (Brbtt, J., dissenting), that the latter fact afforded no defense, and that the prisoner was rightly convicted. Begina v^ Prince (C. C. Res.), XIII, 385. 3. To support an indictment for 'the abduction of an unmarried girl under sixteen years of age, it is not necessary to prove that the per- son who abducted her knew her to be under sixteen, as the person who does so is bound to ascertain her age, and if she turns out to be under sixteen ho must take the consequences. A girl who is away from her home is still in the custody or possession of her father if she intends to return. Begina v. Mycock (Cox's C. C), II, 177. 4. Where a servant girl under sixteen years of age had permission from her master to go and see her parents from Sunday to Monday night, and went to see them on the Sunday for a few hours only, and then told them (by previous arrangement with the prisoner), that she was going back to her em- ployment, instead of which she remained with the prisoner all night, and did not return to her master's employment until some days afterward, Tield, upon the above facts, that the girl was under the lawful charge of her master, and not of her father, at the time of the alleged offense, and that these facts would not warrant a conviction for abduction under the above statute. Begina v. Miller (Cox's C. C), XIV, 683. 5 Abortion. A man and woman were jointly indicted for feloniously administering to C. a noxious thing, to the jurors unknown, with intent to pro- cure miscarriage. C, being in the family way, went to the male prisoner, who said he would give her some stuff to put her right, and gave her a light col- ored medicine, and told her to. take two spoonfuls till she became in pain. She did BO, and it made her ill. She then went to him again, and he said the safest course would be to get her a place to go to. He told her that he had found a place for her at L. and gave her some more of the stuff, which he said he wanted to take effect when she got there. They went together to L. and met the female prisoner, who said she had been down to the station several times the day before to meet them. C. then began to feel pain, and told the female prisoner. Then the male prisoner told her what he had given C. They all went home to the female prisoner's, and the male prisoner then gave C. an- other bottle of similar stuff, in the- female prisoner's presence, and told her to take it like the other. She did so, and became very ill, and next day had a miscarriage, the female prisoner attending her and providing all things. Meld, that there was sufficient evidence that the stuff administered was a noxious thing, to sustain a conviction under the act on that subject. Held, also, that the female prisoner was properly convicted of being an accessory before the fact, and a party, therefore, to the administration of the noxious thing. Begina v. HoUis (Cox's C. C), VI, 319. 6. Arson. An indictment under 24 & 35 Vict., c. 97, for setting fire to a, stack of straw, is not 'sustained by proof of the setting of fire to a quantity of straw on a lory. Begina v. Satchwell (C. C. Res.), V, 393. 7. Assault — bodily harm. B., knowing that he had the gonorrhoea, had connection with a girl without informing her of the fact, by means of which CEIMINAL LAW, 113 the disease was communicated to her. An indictment for inflicting actual bodily harm will be sustained by this evidence. Begina v. Sinclair (Cox's C. C), XI, 385. 8. Assault, indecent. A man induced two youths above the age of fourteen years to go with him, in the evening, to an out of the way place, where they mutually indulged in indecent practices on each other's persons. The youths were willing and assenting parties to what was done. Held, that because of such assent, a conviction for an indecent assault could not be upheld. Begina V. WMaston (Cox's C. C), II, 234. 9. The prisoner was indicted for indecently assaulting two boys, each of whom was eight years of age. It was proved that the prisoner took the boys into a field, and did acts toward them which amounted to indecent assaults unless they consented to them. The boys stated in evidence that they did not know what he was going to do to them when he did each of the acts in question. Upon this -evidence the judge left to the jury the question whether the boys merely submitted to the acts, ignorant of what was going to be done to them, or of the nature of what was being done, or if they exercised a positive will about it and consented to what the defendant did ; and told the j ury that in the former case they would find the defendant guilty, in the latter case they would acquit him. The jury found the prisoner guilty ou the ground that the boys merely submitted to his act, not knowing its nature, Held, that the direction of the judge was right, and the conviction must be upheld. Begina v. Lock (C. C. Eecf,' IV, 512. 10. Assault on officer. Although a police constable may not be bound, in the execution of his duty, to assist the occupier of a house in putting out an intruder, yet he may lawfully do so, and if he sustains violence in so doing, the party inflicting such violence, though he may not be indictable for assaulting a police constable in the execution of his duty, will be liable to a conviction for an assault, as he cannot j ustify resistance to the force lawfully used to eject him. Begina v. Boxburgh (Cox's C. C), II, 165. 11. On an indictment for a felonious assault, the jury, being unable to agree as to the felonious intent, were discharged by arrangement, in order that the prisoner might plead guilty to a common assault with a view to compensa- tion, lb. - 12. Bailee, misappropriation by. The defendant, an attorney, was employed to raise n, loan of money on mortgage, of which he was to apply a part in paying off an earlier mortgage, and to hand over the rest to the mortgagor. He prepared the mortgage deed, received the mortgage money, and handed over the deed to the mortgagee in exchange . He then misappropriated a part of the money to his own use. Held, that no offense had been committed under s. 75 or s. 76 of 24 & 35 Vict., t. 96. Begina v. Cooper (C. C. Ees . ), IX, 505 . 13. Baiting animals. A match took place between the owners of two dogs as to which could kill the greatest number of rabbits by running after them. The match took place in a field containing an area of three acres, walled in so that the rabbits could not escape. Held, that this was not .baiting 15 114 CRIMINAL LAW. animals within the meaning of 13 & 13 Vict., o. 93, s. 8. Pitts v. Milia/r (Q. B.), IX, 341. 14. Bigamy. While the parish church was under repair divine service had been several times performed by a clerk in holy orders in a chamber at a pri- vate hall, and the marriage of the prisoner with his wife was solemnized there. There was no evidence that the chamber at the hall was licensed for the performance of divine service or for marriages. Held, that there was evidence from which the court and jury might properly infer that it was properly licensed. Begina v. Greswell (Cox's C. C), XIV, 619. 15. Where a person already bound by existing marriage goes through with another person a form of marriage known to and recognized by the law ■ as capable of produfeing a valid marriage, for the purpose of a pretended and fictitious marriage, such person is guilty of bigamy, notwithstanding any spe- cial circumstances which, independently of the bigam6us character of the mar-' riage, may constitute a legal disability in the parties, or make the form of marriage resorted to inapplicable to their case. So held, where a person, having a. wife living, went through the ceremony of marriage with another woman, who was within the prohibited degrees of aflSnity ; so that the second marriage, even if not bigamous, would have been void under 5 & 6 Wm. 4, c. 54, s. 3. Regina v. AUmi (C. C. Ees.), II, 343. 16. The prisoner, having a wife living, was married to another woman in the presence of the registrar, describing himself not as E. R., his true name, but as B. R. There was no evidence to show that the second wife knew that his Christian name was misdescribed. Held, that the prisoner was guilty of bigamy. Regina v. Bea (C. C. Res.), II, 341. 17. Conspiracy, An indictment alleging a conspiracy to murder a living infant will not be supported by evidence of a conspiracy existing previous to the birth of such infant, unless the agreement and intention continue subse- quently to the birth. Begina v. Banks (Cox's C. C), V, 471. 18. A design by two persons, by different means, to murder a child of which a woman is pregnant, and- expects soon to be delivered, is suflBciently proximate to be the subject of a conspiracy. lb. 19. A. wrote and put in the post-office at H., at four o'clock one afternoon, a letter addressed to B., at W., containing a suggestion for the murder of a child to which B. was expecting to give birth. The child was born at one A. M. on the following morning. The letter posted at H. would have been in the ordi- nary course, and was in fact delivered at the house where B. lodged at eight o'clock on the morning of the day after it was posted at H. The letter never came to B.'s hands, being intercepted by the landlady of the house. Held, on these facts, that the jury might find that the act of A. continued until the letter was delivered at the house of B., and if the letter had reached B., that A. might properly have been convicted of soliciting and inciting B to murder her child, and, the letter having been intercepted, that A. could be convicted of an attempt to solicit and incite B. to murder her child. lb. 20. An indictment for conspiracy at common law will lie against two or more persons for conspiring to commit an offense for which special provision is made by statute. Begina v. Bunn (Cox's C. C), IV, 564. CEIMINAL 'LAW. 115 21. The defendants, servants of a gas company under contract of service, being oifended by tlie dismissal of a fellow servant, agreed togetlierto quit the service of their employers, without notice and in breach of their contracts of service, by reason of which the company were seriously impeded in tlie conduct of their business. Being indicted for a conspiracy, it was contended that the Stat. 34 & 35 Vict., c. 31, having determined that no act shall be illegal merely by reason of its being in restraint of trade, and having also defined the offense of " obstructing or molesting," and otherwise determined what shall be deemed to be offenses as between masters and servants, had virtually declared all other acts not to be punishable. But, lield, that the provisions of the statute had not affected the common law of conspiracy, for which an indictment would lie. lb. 22. If several persons agree together to do some unlawful thing, and proceed to do it ; or if they agree to do a lawful thing by unlawful means, and proceed to carry out their agreement by those means, they are guilty of a con- spiracy, lb. 23. Upon the trial of servants of a gas company for a conspiracy, held, that they should be convicted, if the jury found that the defendants agreed together to force the company against its will to employ a man it objected to employ, and sought to do so by improper threats or molestation, as by simul- taneously breaking their contracts of service to the serious injury of the com- pany, if they found that to be a molestation ; and they should be convicted, if the jury found the object lawful but the means employed unlawful. lb. 24. Molestation is defined as being any thing done with improper in- tent, to the unjustifiable annoyance and interference with the master in the conduct of his business, and such as would be likely to have a deterring effect on a man of ordinary nerve. lb. 25. A conspiracy is an offense that is complete as soon as there is an agreement to do a thing which would be, if done, though not a crime, yet such a matter as would bring the agreement to do it within the definition of conspir- acy. Heymann v. The Queen (Q. B.), IV, 241. 26. On an indictment for conspiracy to molest and obstruct workmen with a view to coerce them to quit their employment, and to molest and ob- struct employers with a view to coerce them to alter their mode of business, the evidence being that the defendants had continually watched and walked up and down before the prosecutors' premises, and had accosted their work- men, inviting them to quit their employment and promising them money if they did so, and threatening if they refused they would be known as " black sheep," and would not be able to get employment elsewhere, held, that the question was whether the watching and besetting was carried on in such a manner, and to such an extent, that it would operate on the will by giving rise to apprehension or annoyance, and that, if the watching and besetting had been done with the intention to coerce, the defendants ought to be found guilty. Begina v. Hibbert (Cox's C. C), XIII, 433. 27. Picketing, " watching " and " besetting " — or watching and annoy- ing men who may be inclined to work, is an offense within the Workmen's Act of 1875. Begina v. Bauld (Ctox's C. C), XV, 316. 116 CEIMIISTAL LAW. 28. Contempt. It is a contempt of court, while a criminal charge is pend- ing, to impugn the honesty and impartiality of the judge by whom it is to be tried, or to attempt to obstruct the course of justice by exciting public preju- dice against it. Begina v. Ski/pworth (Cox's C. C), V, 456. 29. But it is not a, contempt merely to solicit subscriptions for the de- fense of a defendant on a criminal charge. lb. 30. The defendant had been committed for perjury by the judge who tried an ejectment in which he was claimant, and in which the issue was the question of his identity with a certain baronet alleged by the defendants to be dead. The jury, during the defendant's case, had expressed themselves satis- fled that the claimant was not the person he swore he was, and he elected to be nonsuited. The grand jury at the Central Criminal Court found true bills against him for perjury and forgery ; the prosecution removed the indictments by certiorari into this court ; and it has been fixed, upon application of the attorney-general, that the trial should take place at bar next Easter term. The defendant and his friends, amongst whom were two members of Parliament and one barrister-at-law, had held public meetings for the purpose of obtaining money for the defense at the forth-coming trial, and remarks had been made by the defendant and the three friends mentioned, imputing perjury and con- spiracy to the witnesses for the defense at the trial of the ejectment, and prejudice and partiality to the Lord Chief Justice of this court, who, they said, had proved himself unfit to preside at the trial of the indictments. They also asserted the innocence of the defendant, and the injustice of his treatment. Held, that the trial of these indictments was a proceeding of the court then pending ; that, although the remarks at the meetings might be the subject of a criminal information, yet the parties who made them might also be prose- cuted summarily for contempt of court ; that these remarks indicated an attempt by means of vituperation to deter the Lord Chief Justice from taking any part in the trial, and also by attacks on the witnesses themselves to influ- ence the public mind and prejudice the jury; that they unwarrantably inter- fered with the even and ordinary course of justice ; that it was no excuse that the motive or purpose for which the meetings were held was justifiable, nor that the attempt to interfere with the course of justice was ineffectual ; that the proceedings were a gross contempt of court ; and that it was the duty of the court to put a stop to them. Begina v. Onslow (Cox's C. C), V, 443. 31. The members of Parliament who made these remarks, when sum- moned to answer for contempt, apologized and submitted themselves to the court. They were, therefore, only fined £100 each ; but it was held that the court would not allow the privilege of the House of Commons to prevent punish- ment by imprisonment of its members for a contempt in the administration of j ustice, if the occasion required it. lb. 32. Continuing offense. By-laws were made by the Local Board of Sunder- land, under the Public Health Act, 1848, s. 115, and the Local Government Act, 1858, s. 34, by one of which (No. 12) all party-walls, except in houses of one story, were required, under a penalty of 40s., to be nine inches at least in thickness, and by another of which (No. 42) it was provided that, " in case any offense under any of the foregoing by-laws shall continue, the person offending shall be liable to a further penalty of not exceeding 40s. for CRIMINAL LAW. 11? each day during which such offense shall continue after written notice of the offense has been given by the local board to the offender." The appellant having been convicted and fined for an offense against by-law No. 12, in build- ing a party-wall of four and a half inches in thickness instead of nine, was afterward convicted upon an information charging him under by-law 42, with eoniinuing the offense, and again fined, ffeld, that suffering the party-wall to remain unaltered was not a continuing offense within by-law 42, or, if it was, that the by-law was unreasonable, the appropriate remedy being the removal of the structure by the Board, as authorized by section 34 of the Local Government Act, 1858. Marshall v. Smith (Com. PI.), VI, 186. 33. QucBre, whether the party, if liable as a " continuing offender," would remain so liable after he had transferred the premises to a purchaser?, lb. 34. Conversion by agent. The prisoner, a stock and share dealer, was employed by the prosecutrix to purchase securities for her. He bought in his own name, and received money from her from time to time to cover the amounts he had paid, or had to pay for the securities. Such payments were not made against any particular item, but in checks for round sums. On one occasion he wrote to her, " I inclose » contract note for £300, J. bonds, at 112, £336 ; " and the contract note ran, " Sold to Mrs. S. (the prosecutrix) £300 J. at 112, £336," and was signed by the prisoner. The prosecutrix wrote in reply : " I have just received your note and contract note for the J. shares, and inclose a check for £336 in payment." The prisoner never paid for the bonds, but in violation of good faith appropriated to his own use the proceeds of the check. Seld, that the letter of the prosecutrix was a direction in writing to apply the proceeds of the check to pay for the bonds, if they had still to be paid for, within the meaning of 24 & 25 Vict., u. 96, s. 75; and that the prisoner was rightly convicted of a misdemeanor under that section. Begina v. Christian, (C. C. Res.), VII, 332. 35. Diseased animal, having. By the Animals Order, 1871, made by the Privy Council under the 75th section of the Contagious Disease (animals) Act, 1869, it is provided that every person having in his possession or under his charge an animal affected with a contagious or infectious disease shall, " with all practicable speed, give notice to a police constable of the fact of the animal being so affected." Held, that in order to convict the person in possession or charge of a diseased animal of an offense against the order, it must be proved that he was aware of the fact that the animal waB diseased. Nichols v. HaU (Com. PI.), V, 300. . 36. Embezzlement. The prisoner's, father was a clerk to a local board, and • held other appointments. The prisoner lived with his father, and assisted him in his ofiSce and in the business of the board. In his father's absence the prisoner acted for him at the meetings of the board, and when present he assisted him. The prisoner was not appointed or paid by the board ; and there was no evidence that he received any salary from his father. The board hav- ing occasion to raise a loan on mortgage, the prisoner managed the business for his father, and at his father's oflBce received the money from the mort- gagees, and appropriated a part of it to his own use. Seld, that there was evi- dence that the prisoner was st clerk or servant, or employed as a clerk or ser- vant, and was guilty of embezzlement. Begina v. Foulkes (C. C. Res.), XII, 640. 118 CEIMINAL LAW. 37. A., an inspector of prisons, duly authorized to receive the contribu- tions of parents toward the maintenance of their children committed to reforma- tory and industrial schools under 29 & 30 Vict., cc. 117, 118, and instructed to pay the amount received into the Bank of England, to the credit of the pay- master-general, employed the prisoner, a member of the police force of the borough of L., as his agent in taking proceedings against the parents of such children for the recovery of such contributions on A.'s behalf, and for gener- ally carrying out the provisions of the Reformatory and Industrial Schools Act. Under this employment, which was sanctioned by her majesty's treasury, the prisoner received and misappropriated moneys, the contributions of parents, ordered by magistrates to be paid for the maintenance of their children in the schools. Held, that the prisoner was, while so employed, in the public service of her majesty, so as to render him amenable to indictment for embezzlement under 24 & 25 Vict., c. 96, s. 70. Begina v. Qrahami (Cox's C. C), XIII, 412. 38. While in treaty with Messrs. &. & P. for the sale and transfer of a public-house license, the prisoner was required by them to give security for the purchase-money before they would assist him in procuring a transfer. To enable him to give the required security, the prosecutor accepted three bills of exchange drawn upon him by the prisoner, which the latter was to deposit with Messrs. G. & P. by way of security, and not negotiate or use for any other purpose, and if the transfer was not effected, was to return to the prosecutor. The prisoner, instead of depositing them with Messrs. G. & P., converted two of them to his own use. Rdd, that the prisoner was not an "agent" within the 75th section, nor a " bailee " within the 3d section of 24 & 25 Vict., u. 96, and could not be convicted under either. Begina v. Coaaer (Cox's C. C), XIV, 643. 39. Prisoner, who carried on business as an accountant and debt col- lector (there was no evidence to show what was the nature of that business), was employed by the prosecutors to collect certain debts specified in a list given to him, and to pay over to the prosecutors the amounts received as soon as he collected them. The time and mode of collecting the debts were in his discre- tion, and he was authorized to sue for them, if necessary, but at his own charge. In no case was he to receive from the prosecutors more than five per cent on the amount collected by him and paid over to the prosecutors. The jury having found, on these facts, that the prisoner was employed in the capacity of clerk, and convicted him of embezzlement of certain sums received •by him and not paid over to the prosecutors, held, that the finding was wrong ; that he was not employed as a clerk, and that the conviction could not be sustained. Begina v. Hall (Cox's C. C), XIII, 409. 40 The prisoner was captain of a barge, and in the exclusive service of its owner. He was remunerated with half the earnings of the vessel, and had no authority to take any other cargoes but those appointed for him. It was his duty to account to his master for the proceeds of each voyage. On one occasion, although ordered to brjng the barge back empty from a certain place, and forbidden to take a particular cargo, he, nevertheless, loaded such cargo in the barge, returned therewith, and received the freight. He did not pro- fess to carry the cargo or receive the freight for his master, and the person CEIMINAL LAW. 119 paying the money did not know for whom he paid it. The prisoner declared that the >barge came back empty, and never accounted for the freight. Held, that he was not guilty of embezzlement, as the money was received or taken into possession by him wrongfully, in his own name, and not " for, or in the name of, or on the account of his master or employer," within 24 & 35 Vict. , c. 96, s. 68. Begina v. Cullum (C. C. Res.), V, 397. 41. The prisoner was engaged by the prosecutors to solicit orders for them, and was to be paid by commission on the sums received through his means. He had no authority to receive money ; but if any was paid to him, he was forthwith to hand it over to his employers. He was at liberty to apply for orders whenever he thought most convenient, but was not to employ him- self for any other persons than the prosecutors. Contrary to his duty he ap- plied for payment of a certain sum ; having received it he applied it to his own use, and denied, when asked, that it had been paid to him. Held, on the above facts, that the prisoner was not under the control of his employers, nor bound to obey their orders, and therefore was not a " clerk or servant," within the meaning of 24 & 25 Vict., c. 96, s. 68, and could not be convicted of embezzle- ment. Begina v. Negus (C. C. Ees.), V, 403. 42. Escape. W. was given into custody without a warrant, on a charge of felony. He was conveyed before a magistrate, who remanded him in custody without any evidence on oath. W. was removed to a lock-up, from which he escaped. The charge of felony made against him was dismissed by the magis- trates. Held {per Martin, B.), that the dismissal by the magistrates was not 'equivalent to an acquiital by a jury, that the defendant was legally in custody, although- no evidence was taken upon oath to justify his remand, and that these facts were no defense to the indictment for breaking prison. Begina v- Waters (Cox's C. C), V, 469. 43. Fabricating voting paper — intent. At an election of a member of a local board of health, a voting paper (form sch. A to 11 & 13 Vict., c. 63) was delivered at the house of E. E., a voter ; the wife of the voter, havi^ng her hus- band's authority, put a cross at the bottom of the paper, and the respondent then put E. K., the voter's initials, in the margin opposite the name of the candidate for which the vote was intended, and the respondent signed his name as witness to the mark of the voter. An information having been laid against the respondent under 31 & 33 Vict., c. 98, ri. 13, subs. (5), for " fabricating " the voting paper, the justices dismissed the summons, finding, on the above facts, that the respondent bona fide believed (as the fact was) that the wife had authority to put her husband's name to the paper, and that the respondent had no criminal or unlawful intention in putting his name as witnessing the mark of the voter. Held, that the justices were right, for that mens'rea was necessary to constitute the offense. Aherdare Local Board v. Hammett (Q. B.), XII, 230. 44. False pretenses. . A false pretense is a lie told or acted, influencing the mind of one party and inducing him to intrust the possession of goods to the party telling it ; while obtaining goods by a trick, so as to constitute larceny, is an imposition upon the senses. Begina v. Badcliffe (Cox's C. C), VI, 334. 45. The prisoner was indicted for the misdemeanor of obtaining articles of clothing by falsely pretending, iraier alia, that his sister-in-law was poor and 120 CEIMINAL LAW. unable to buy mourning where witli to attend the funeral of her father. Held, that, inasmuch as the possession only and not the property had been passed or intended to be passed by the prosecutrix, the offense, if any, was larceny and not false pretenses. lb. 46. A. was indicted for obtaiaing goods from several persons by false pretenses, to whom she had forwarded half bank notes, requesting goods to the value of the entire notes to be sent to her. She had not the corresponding half notes in her custody. Held, that she was rightly convicted for obtaining goods by false pretenses. Begina v. Mw-phy (Cox's C. C), XV, 333. 47. The prisoner was convicted on an indictment charging that he did falsely pretend that he then lived at, and was the landlord of a beerhouse, and thereby obtained goods. The evidence was, that prisoner said he was the nephew of a man in prosecutor's employ, which was true ; and that he lived at the beerhouse ; but he did not say he was the landlord of that house. Pros- ecutor, in parting with his goods, was influenced both by the fact of his being the nephew of the servant, and the statement that he lived at the beerhouse ; he believed him to be the landlord of the beerhouse. Held, that it was im- material that the prosecutor was partly influenced by the fact that the priso- ner was the nephew of his servant. Regina v. Linee (Cox's C. C), VI, 814. 48. Held, also, that the allegation that the prisoner lived at and was the landlord of the beerhouse was divisible, and that the part, " that he lived at the beerhouse," being false, he was rightly convicted. lb. 49. The prisoner was indicted for obtaining goods by (amongst others) . the false pretense that certain checks were good and valid orders for the pay- ment of their amount. It was proved that the prisoner ordered goods of the prosecutors, and said he wished to pay ready money for them. He gave checks on a bank for the price, and took away the goods. The prisoner had shortly be- fore opened an account at the bank, but had drawn out the amount deposited except a few shillings. Various checks of his had been refused payment, and he would not have been permitted to overdraw. He did not intend when he gave the checks to the prosecutor to meet them, but intended to defraud. Held, that there was sufficient evidence of the false pretense that the checks were good and valid orders for the payment of their amount. Regina v. Hatleton (C. C. Res.), XI, 350. 60. B. was summoned before justices for aiding and abetting S. to ob- tain money by false pretenses, and both S. and B. were committed to take their trial ; S. on the charge of attempting to obtain money by false pretenses, and B. on the charge of aiding and abetting S. 'to commit that offense. At the sessions an indictment against S. and B. for jointly attempting to obtain money by false pretenses was preferred, without the leave required by the Vexatious Indictment Act, and found by the grand jury, upon which S. and B. were tried jointly, and S. acquitted and B. found guilty. At the trial the objection was taken and overruled, that the indictment having been preferred against B. for an offense upon which he had not been committed for trial, the indictment should be quashed; and after verdict, another objection was taken and over- ruled that S., the principal offender, having been acquitted, B., an aider and abettor, could not be found guilty. Held, by the appellate court, that the CRIMINAL LAW. 131 Vexatious Indictment Act (aS & 33 Vict., c. 17), b. 1, was inapplicable, as that applied only to the offense of " obtaining money or other property by false pretenses," and not to the offense of " attempting to obtain money or cither property by false pretenses." ffeld, also, that the second objection was un- tenable, as in misdemeanors all were principals. Regina v. Burton (Cox's C. C), Xni, 418. 61. H. and D. , merchants, were adjudicated bankrupts in Feb., 1875. The firm had been in an insolvent state from 1874 During the four months previous to the presentation of the petition the bankrupts had purchased goods and shipped them to Australia, on which goods they had immediately raised money by pledging the bills of lading. The goods had never been paid for, and H., on his examination, was unable to give any account of jvhat he had done with the money so raised. The trustee reported that in his opinion H. had been guilty of offenses under sect. 11 of the Debtors Act, 1869, and applied to the court for an order for the prosecution of H. Held, that, although there was abundant evidence of fraud of some kind, there was no evidence that the property had been obtained and disposed of " otherwise than in the ordinary course of business." There was, therefore, no legal offense which would j ustify the court in directing a prosecution under the subsects. of sect.^ll. Regina v. Brett and Hodgson (Cox's C. C), XIV, 620. 52. The mode in which the money raised was applied could not be con- sidered for the present purpose. lb. < 53. On an indictment for inducing the prosecutor, by means of false pretenses, to enter into an agreement to take a field for the purpose of brick making, in the belief that the soil of the field was fit to make bricks, whereas it was not, he being himself a brickmaker, and having inspected the field and examined the soil, held, that, nevertheless, if he had been induced to take the field by false and fraudulent representations by the defendent of spe- cific matters of fact relating to the quality and character of the soil, as, for in- stance, that he had himself made good bricks therefrom, the indictment would be sustained. Regina v. English (Cox's C. C), II, 234. 54. Held, also, that it would be sufficient if he was partly and materially, though not entirely, influenced by the false pretenses. lb. 55. False record. Upon an indictment under 34 & 35 Vict., o. 98, s. 37, for making a false entry in a marriage register, it is not necessary that the entry should be made with intent to defraud, and it is no defense that the mar- riage solemnized was null and void, being bigamous. If a person knowing his name to be A. signs another name without authority, he is guilty, and it is im- material that he is a third witness, the Marriage Act only requiring two. Re- gina v. Asplin (Cox's C. C), V, 470. 56. Forgery. By 34 & 35 Vict. , o. 98, s. 30, it is felony to forge " any deed, or any bond or writing obligatory." Held, that a letter of orders under the seal of a bishop is not a deed within that section. Regina v. Morton (C. C. Ees.), V. 393. 57. The prisoner, being pressed for payment of a debt, obtained fur- ther time to pay by giving, as security, an I.O. U., purporting to be signed by 16 123 CRIMINAL LAW. himself and anotlieT, the signature of the latter being forged by the prisoner. Held, that the instrument was an " undertaking for the payment of money," so as to make the forgery of it an offense within the meaning of 24 & 35 Viet., c. 98, s. 33. Regina v. Ghambera (C. C. Res.), I, 333. 58. Fraudulent removal by bankrupt. On the 31st of December, 1873, the prisoner executed an assignment of the property upon his farm to trustees for the benefit of certain of his creditors. The assignment was not registered as a bill of sale, and the prisoner continued in occupation of the farm, and in possession of the property assigned, under an agreement with the trustees by which he was to hold possession as their bailiff. On the 14th, 16th a,nd 17th October, 1873, the prisoner fraudulently removed stock from the farm of more than £10 in value, forming part of the property assigned. On the 17th October, 1873, the prisoner commenced proceedings for liquidation by arrange- ment, and on the 7th November, 1873, the prisoner's creditors duly resolved that his affairs should be liquidated by arrangement, and a trustee was appointed. The prisoner was indicted under sect. 11, subs. 5, of the Debtors Act, 1869, for having, within four months next before the commencement of the liquidation, fraudulently removed part of his property of the value of £10 and upwards. Held, that though the assignment, not having been registered as a bill of sale, Was void as against the trustee in liquidation, still, inasmuch as, at the time of the fraudulent removal, the assignment was in force and the property in the stock removed in the trusiees under the assignment, he could not properly be convicted. Begina v. Creese (C. C. Res.), VIII, 575. 59. Gaming. The appellant was charged on a summons under the Betting House Act (16 & 17 Vict., c. 119), ss. 1 and 3, with knowingly and willfully permitting a place of which he was the occupier to be used by certain persons for the purpose of betting with persons resorting thereto. On the hearing it was proved that the appellant occupied as tenant a house with a piece of inclosed ground adjoining, used for cricket, foot-racing and other games and sports. On the day named in the summons foot-racing took place in the grounds, to which persons were admitted on payment of Gd. Within the grounds, but outside the space reserved for the runners, and amongst the spec- tators, some fifteen or twenty professional betters stood on chairs and Stools in 'different spots, with books in their hands, calling out the odds on the various runners, and betting with different persons, a man behind each of the profes- sional betters recording the bets in a book, the persons paying Is. each, and receiving a ticket. The evidence satisfied the magistrate that the appellant knew of what was going on and took no steps to prevent it, and that he might have prevented it if he had been so minded ; and he accordingly convicted the appellant of the offense charged. Held, that the conviction was right. Haigh V. Council of Sheffield (Q.B.), XI, 173. 60. In order to support a conviction under the Licensing Act, 1873 (35 & 36 Vict., 0. 94), s . 17, by which if any person licensed under the act " suf- fers any gaming or any unlawful game to be carried on on his premises" he is made liable to certain penalties, it is necessary to give some evidence of actual or constructive knowledge ou the part of the person charged, that gaming was carried on on his premises. Bosley v. Davies (Q. B. Div.), XV, 199. CRIMINAL LAW. 123 61. At the hearing of an information against the appellant, an hotel keeper, for au^ring gaining on his licensed premises, it was proved that a police constable, about half-past twelve in the morning, "was in the street in which the premises were situate. Two of the windows had the blinds up, so that the constable could see three gentlemen, and from what they said it was evident that they were playing cards. He waited for about a quarter of an hour, when the front door was opened by one of the waiters, and he then entered and went up stairs to the room, and found six gentlemen round a table with a quantity of money on it . The manageress of the hotel said that she did not know that they were playing cards, and that they did not have the cards of her, and her statement was confirmed by the card-players, who were in a private room. The appellant having been convicted, held, ihaX the case must be sent back to the justices with an intimation of the opinion of the court that, though actual knowledge on the part of the appellant or his ser- vants, in the sense of seeing or knowing of the card playing, was not necessary to be shown, yet that some circumstances must be proved from which it could be inferred that they connived at what was going on. lb. 62. Homicide. The general rule of law is that provocation by words will not reduce the crime of murder to that of manslaughter. But special circum- stances attending such a pro vocation, might be held to take the case out of the general rule. Begina v. Rothwell (Cox's C. C), II, 301. 63. While resisting officer. If a prisoner, having been lawfully appre- hended by a police-constable on a criminal charge, uses violence to the con- stable, or to any one lawfully aiding or assisting him, which causes death, and does so with intent to inflict grievous bodily inj ury, he is guilty of murder : and so, if he does so only with intent to escape. But if, in the course of the struggle, he accideijtly causes an injury, it would be manslaughter. Begina V. Po^rter (Cox's C. C), V, 497. 64. If a person against whom a warrant has been issued for a misde- meanor, but who does not know thereof, in resisting an arrest by an officer not having such warrant in his possession, kills such officer, the act is not murder, but merely manslaughter. Begina v. Chapman (Cox's C. C), II, 160. 65. Manslaughter. Where A., in unlawfully assaulting B. who at that time had in her arms an infant, so frightened the infant that it had convulsions, although previously healthy, and from the effects of which it eventually died in about six weeks, A. is guilty of manslaughter, if the jury think that the assault on B. was the direct cause of death. Begina v. Towers (Cox's C. C), VIII, 585. 66. by neglect of duty. To render a person liable to conviction for manslaughter through neglect of duty, there must be such a degree of cul- pability in his conduct as to amount to gross negligence. Begina v. Finney (Cox's C. C), X, 507. 67. A grown up person who chooses to undertake the charge of a, human creature helpless either from infancy, simplicity, lunacy., or other in- firmity, is bound to execute that charge without wicked negligence ; and if such person by wicked negligence lets the helpless creature die, that person is guilty of manslaughter. Mere negligence is not enough ; there must be neg- ligence so great as to satisfy a jury that the offender had a wicked mind in 124 CBIMINAL LAW. the sense of being reckless and careless whether death occurred or not. Begina V. NioMls (Cox's C. C), XIII, 433. 68. By 31 & 32 Vict., c. 123, s. 87, " "When any parent shall willfully neglect to provide adequate food, clothing, medical aid or lodging for his child, being in his custody, under the age of fourteen years, whereby the health of such child shall have been, or shall be likely to be, seriously injured, he shall be guilty of an offense punishable on summary conviction.'' Upon the trial of an indictment for manslaughter it was proved that the prisoner was the father and had the custody of an infant child. The child was ill and wasting for eight or nine months from chronic inflammation of the lungs and pleura, and then died. The prisoner belonged to a sect who never call in medical advice, but call in the elders of their church to pray over the sick person. This course was pursued with the prisoner's child. The prisoner, however, who had no medical sk-ill himself, consulted the person called in to pray over the child, who also had no medical skill, and they thoijght the child was suffering from teething, and gave it articles of diet which they thought suitable for a child so suffering. The prisoner had sufficient means to procure skilled advice, which was easily obtainable. ■ The jury found on evidence, which, it was to be taken, was sufficient to warrant their findings, flrst, that the prisoner neglected to procure medical aid for the child when it was in fact reasonable so to do, and when he had the ability ; secondly, that the death was caused by that neg- lect; ttirdly, that he bona fide, though erroneously, believed that medical aid was not required for the child ; fourthly, that he bona fide believed that it was wrong to call in medical aid. The learned judge thereupon directed a verdict of guilty to be entered. Held, without expressing any opinion as to how the case would have stood at common law apart from the above statute, that that statute imposed - positive duty to provide adequate medical aid when neces- sary, and that that duty having been willfully neglected by the prisoner, and death having ensued from that neglect, the prisoner was properly convicted of manslaughter. Begina v. Downea (Q. B. Div.), XV, 161. 69. By negligence. One who points a gun at another person, without previ- ously examining whether it be loaded or not, will, if the weapon should acci- dentally go off and kill him toward whom it is pointed, be guilty of man- slaughter. Begina v. Jones (Cox's C. C), X, 510. 70. A medical man is bound to use proper skill and caution in dealing with a poisonous drug or dangerous instrument, and if he does not do so and death ensues, he is guilty of manslaughter ; aliter if it is want of skill arising from mere error of judgment. Begina v. MeLeod (Cox's C. C), VIII, 589. 71. Murder. On an indictment against a woman for the willful murder of her new born child, she is guilty of murder if either before or after the birth of the child she makes up her mind that it shall die, and the child being born alive, she, with the intent that it shall die, leaves it to die, and it does die in consequence. Or, again, she is guilty of murder if, without intending murder, she resolves to conceal the birth of the child by methods which will probably end in its death, and which being ca,rried out do end in its death. She is guilty of manslaughter if, without having made up her mind that the child shall die, she determines to be alone at the birth, for the purpose of temporary concealment, and the child afterward dies by reason of her wicked negligence. CEIMINAL LAW. 135 A child is born alive when, breathing and living by reason of breathing through its own lungs alone, it exists as a live child without deriving any of its living or power of living by or through any connection with its mother. Begina v. Sa7idley(Cu^'a C. G.) XIII, 431. 72. Accessary. Two men, having quarreled, agreed to fight with their fists, and to bind themselves to fight each put down £1, so that £3 might be paid to the winner. The prisoner consented to hold the £3, and pay it over to the winner. Otherwise he had nothing to do with the fight, and he was not present at it. There was no reason to suppose that the life of either man would be endangered. The men fought, and one of them received injuries of which he afterward died. The prisoner having been informed who was the winner, but not knowing of the other man's danger, paid over the £3 to the winner. Beld, that the prisoner was not an accessary before the fact to the manslaughter of the man killed. Begina v. Taylor (C. C. Res.), XII, 636. 73. Joint liability. If A. and B. agree together to assault G. with their fists, and G. receives a chance blow of the fists from either of them, causing his death, both A. and B. are guilty of manslaughter. But should A., of his own impulse, kill G. with a weapon suddenly caught up, B. would not be re- sponsible fur the death, he being only liable for acts done in pursuance of the common design of himself and A. Begina v. Oaton (Cox's C. C.), X, 506. 74. Indecency. The prisoners were indicted in one count for keeping a booth for the purpose of showing an indecent exhibition ; in a second, for showing for gain an indecent exhibition in a booth ; in a third, for showing an indecent exhibition in a public place. It was proved that during the Epsom races the prisoners, who were traveling showmen, kept a booth on Epsom Downs for the purpose of an indecent exhibition, that they invited people to enter, and that those who would pay entered and saw an indecent exhibition. Held, that the prisoners had committed an indictable offense, and that it was well laid in the indictment. Begina \. Saunders and Hitchcock {(i. B. Div.), XV, 151. 75. It is unlawful for men to bathe, without any screen or covering, so near to a public footway frequented by females, that exposure of their persons must necessarily occur ; and they who so bathe are liable to an indictment for indecency. Begina v. Beed (Cox's G. C), II, 157. 76 Nor is it any defense to such an indictment that there has been, as long as living memory extends, an usage so to bathe at the place, and that there has been no exposure beyond what is necessarily incident to such bath- ing, lb. 77. Larceny. .The prosecutors (boot and shoe manufacturers) gave out to their workmen leather and materials to be worked up, which were entered in the men's books and charged to their debit. The men might either take thedi to their own homes to work up, or work them up upon the prosecutor's prem- ises ; but in the latter case they paid for the seats provided forthem^ When the work was done, they received a receipt for the delivery of the leather and materials, and payment for the work. If the leather and materials were not redelivered, they were required to be paid for. The prisoner Daynes was in the prosecutor's employ, and received materials for twelve pairs of boots ; he 126 CRIMINAL LAW. did some work upon them, but, instead of returning them, sold them to the prisoner Warner. These materials were entered in the prosecutor's books to Daynes' debit, but omitted by mistake to be entered in Daynes' book. Held, that Daynes could not be convicted of larceny as a bailee,' under 24 & 25 Vict., * c. 96, s. 3, as the offense of which he had been guilty was punishable summa- -ily under 13 Geo, 3, c. 8. Regina v. Daynes (Cox's C. C), VI, 839. 78. QM(8r«, whether the transaction, as between the prosecutor and his men, did not amount to a sale of the leather and materials ? lb. 79. The prisoner was frequently employed by the prosecutor to fetch coals from C. Before each journey the prosecutor made up to the prisoner £24, out of which he was to pay for the coals, keep 23s. for himself, and if the price of the coal with the 23s. did not amount to £34, to keep the balance in hand to the credit of the next journey. It was the prisoner's duty to pay for the coal as he obtained it, witli the money received from the prosecutor ; and the prosecutor did not know but that he did so ; but provided he was supplied with the coal, and not required to pay more than the proper price for it, it was immaterial to the prosecutor in what manner the prisoner paid for it. On the 30th March, the prisoner had a balance of £3 in hand, and the prosecutor gave him £31 to make up the £24 fbr the next journey. The prisoner did not then buy any coal, but fraudulently appropriated the money. Held, that a con- viction of the prisoner for larceny of the £31 as a bailee was right . Begina V. Aden (Cox's C. C), VI, 337. 80. A traveler was intrusted with pieces of silk (about 95 yds. each) to carry about with him for sale to such customers as he might procure. It was his duty to send by the next post after sale the names and addresses of the customers to whom any might have been sold, and the numbers, quantities and prices of the silk sold. All goods not so accounted for remained in his hands, and were counted by his employers as stock. At the end of each half year it was his duty to send in an account for the entire six months, and" to return the unsold silk. He was paid by a commission. Within six months after four pieces of silk had been delivered to him, the prisoner rendered an account of the same, and entered them as sold to two persons, with instructions to his employers to send invoices to the alleged customers. .It turned out that this was false, and that he had appropriated the silk to his own use. Held, tliat he could be properly convicted of larceny as a bailee. Regina v. Mieh- mond (Coj^'s C. C), VI, 333. 81. Prosecutor asked prisoner if he could get bills of exchange dis- counted, and prisoner replied that if prosecutor was a person of credit he could get his discounted. Three bills were then drawn by prisoner payable to his order, which prosecutor accepted, and delivered to the prisoner to get dis- counted. The proceeds of the discounting were to be' handed to the prosecu- tor, less the prisoner's commission, or the bills to be returned. The prisoner, being pressed by a creditor for a debt of £62, gave one of the bills (being for £300) in payment, representing it as his own bill, and asking the creditor to discount the balance of the bill. The creditor declined to discount thp bal- ance, and the bill was not indorsed upon the condition of the creditor's dis- counting the balance. The jury found that it was the prisoner's intention, when he indorsed the bill, to pass the property in It absolutely to the creditor. CEIMINAL LAW. 127 Held, that, upon these facts, the prisoner might properly be convicted of lar- ceny as a bailee of a bill of exchange, under 34 & 25 Vict., c. 96, s. 3. Regina V. Oxmham (Cox's. C. C), XV, 373. 82. The prisoner found two heifers which had strayed, and put them on his own marshes to graze. Soon afterward he was informed by S. that they had been put on his, S.'s, marshes and had strayed, and a few days after that, that they belonged to H. Prisoner left them on his marshes for a day or iwo, and then sent them a long distance away as his own property to be kept for him. He then told S. that he had lost them, and denied all knowledge of them. The jury found (1) that at the time the prisoner found the heifers he had reasonable expectation that the owner could be found, and that he did not believe that they had been abandoned by the owner. (2) That at the time of finding them he did not intend to steal them, but that the intention to steal came on him subsequently. (3') That the prisoner, when he sent them away, did so for the purpose and with the intention of depriving the owner of them and appropriating them to his own use. Held, that a conviction of larceny, or cf larceny as a bailee, could not be sustained. Regina v. Matthews (Cox's C. C), VI, 339. 83. The prisoner was indicted for feloniously stealing a dress, a shawl, and other articles of wearing apparel. The evidence was that the prisoner, who had a wife living, but who represented himself as a widower, was paying his addresses to the prosecutrix, who was a widow ; that in the course of con- versation he told her that his late wife's father had just died (which was true), that his sister-in-law was unable to go to the funeral, being too poor to pur- chase mourning ; that thereupon the prosecutrix, without request or sugges- tion from him, offered to lend her clothes for the purpose, and placing the articles in question in a bag gave them to the prisoner to take to his sister-in- law. Some of these articles of dress were worn by the prisoner's wife at the funeral, others were found to have been pawned by a woman not identified, who gave her name as that of the prisoner's wife. The prosecutrix afterward made repeated requests to the prisoner to return the clothing she had lent to his sister-in-law, but could not obtain them. It appeared that the prisoner's wife had two sisters. One of them only was called for the prosecution to prove that the clotting had not been given to her by the prisoner. Held, that there was no case for the jury, inasmuch as, there being two sisters-in-law, there was no evidence that the prisoner had not delivered the clothes to a sister-in-law, in pursuance of the terms of the bailment, and also that there was no evidence of conversion to his own use, it not being proved that the clothes were pawned by the prisoner, but by a woman who might have been his sister-in-law who was not called to prove the non-receipt of the clothes by her. Regina v. Rad- cliffe (Cox's C. C), VI, 334. 84. An indictment charged the stealing of "nineteen shillings in money " of the moneys of A. B. It appeared that A. B. got into a merry-go- round at a fair, and handed the prisoner a sovereign in payment for the ride, asking her to give change. The prisoner gave A. B. lid., and said she would give the rest when the rid* was finished. After. the ride was over the prisoner said A. B, only ga vp her !«., and refused to give her the 19«. change. Held, that 128 CEIMINAL LAW. the prisoner could not be convicted upon this indictment of stealing 19«. JSe- gina v. Bird (Cox's C. U.), IV, 533: 85. Prosecutor sold onions to the prisoners, who agreed to pay ready money for them. The onions were unloaded at a place indicated by the pris- oners, and the prosecutor was then induced to make out and sign a receipt which the prisoners got from him, and then refused to restore the onions or pay the price. The jury convicted the prisoners of larceny, and said that they never intended to pay for the onions, and that the fraud was meditated by them, from the beginning. Held, that the conviction was right. Segina v. Bowly (Cox's C. C), IV, 545. 86. A depositor in a post-office savings bank obtained a warrant for the withdrawal of 10«., and presented it with his depositor's book to a clerk at the post-office, who, instead of referring to the proper letter of advice for 10»., referred by mistake to another letter of advice for £8 16«. 10(i., and placed that sum upon the counter. The clerk entered £8 16«. IQd. , as paid in the de- positor's book, and stamped it. The depositor took up that sum and went away. The jury found that he had the animus furandi at the moment of taking money from the counter, and that he knew the money to be the money of the postmaster-general when he took it up, and found him guilty of larceny. Seld, by a majority of the judges, that he was properly convicted of larceny. Beginar. Middleton (Cox's C. C), IV, 536; S. C, V, 407. 87. W. let a horse on hire for a week to C, who fetched the horse every morning from W.'s stable, and returned it after the day's work was done. The prisoner went to C. one day,.just as the day's work was done, and fraudu- lently obtained it from him by saying falsely, " I have come for W.'s horse ; he has got a job on, and wants it as quickly as possible." The same evening the prisoner was found three miles off, with the horse, by a constable, to whom he stated that it was his father's horse, and that he was sent to sell it. Held, that the prisoner was rightly convicted of larceny on an indictment alleging the property of the horse to be in W. Begina v. Kendall (Cox's C. C), VIII, 609. 88. When a wife absconds from the house of her husband with her avowterer, the latter cannot be convicted of stealing the husband's money missed on their departure, unless the avowterer be proved to have taken some active part either in carrying away or in spending the sum stolen. Begina v. Taylor (Cox's C. C), X, 509. 89. The prisoner eloped with the prosecutor's wife, traveling in a cart which the wife took from her husband's yard. The prisoner sold the pony, cart and harness in the presence of the wife, who did not object to the sale and received the proceeds, which she retained after paying the prisoner a sovereign he had expended in obtaining lodging while they were living in a state of adultery. Held, that the presence of the woman did not alter the offense ; that the facts that he negotiated the sale and received part of the pro- ceeds was sufficient; that from the circumstances the prisoner must have known that the pony, cart and harness were not the property of the woman ; and that if the jury were of opinion he had that knowledge, they were bound to con- vict him. Begina v. Harrison (Cos's C. C), II, 174. CRIMINAL LAW. 129 90. Prosecutor bought a horse and was entitled to the return of 10s. chtip money out of the purChase-money. Prosecutor afterward, on the same day, met the seller, the prisoner, and others together in company and asked the seller for the 10«., but he said he had no change, and offered a sovereign to the prosecutor, who could not change it. The prosecutor asked whether any one present could give change. The prisoner said he could, but would not give it to the seller of the horse, but would give it to the prosecutor, and pro" duced two half-sovereigns. The prosecutor then offered a sovereign of his own, with one hand to the prisoner, and held out the other hand for the change. The prisoner took the sovereign and put one half-sovereign only into the pros- ecutor's hand, and slipped the other into the hand of the seller, who refused to give it to the prosecutor and ran off with it. Ileld, that the prosecutor never parted with the possession of his sovereign, and never intended to do so except in exchange, and the indictment rightly charged the prisoner with stealing a sovereign. Regina v. Twist (Cox's C. C), VI, 335. 91. The prisoner, a foreman, by fraudulently misrepresenting that £21 18s. was due for wages to the men under him, obtained that sum from his master's cashier. On the pay-sheet made out by the prisoner £1 10s. 4(i. was set down as due to W., whereas only £1 8s. was due, and that amount only was paid by prisoner to W. out of the £31 18s./ the excess, 2s. 4(i., was appropriated out of the £31 18s., to the prisoner's own use, he intending so to appropriate it at the time he received the £21 18s. Held, that the prisoned was guilty of larceny of the 2s. Ad. Begina v. Cooke (Cox's C. C), II, 167. 92. Prisoner received from his wife a £10 Bank of England note, which she had found and passed it away. The note was indorsed " E. May " only, and the prisoner, when asked to put his name and address on it by the person to whom he passed it, wrote on it a false name and address. When pharged at the police station, the prisoner said he knew nothing about the note. The jury were directed that, if they were satisfied that the prisoner could, within a reasonable time, have found the owner, and if, instead of waiting, the pris- oner immediately converted the note to his own use, intending to deprive the owner of it, it would be larceny. The prisoner was convicted. Meld, that the j ury ought to have been asked whether, tlie prisoner, at the time he received the note, believed the owner could be found ; and that the conviction was wrong. Begina v. Knight (Cox's C. C), II, 186. 93. B., making a purchase from the prisoner, gave him half a sovereign in mistake for a sixpence. Prisoner looked at it and said nothing, but put it into his pocket. Soon afterward B. discovered the mistake, and returned and demanded the restoration of the half sovereign. Prisoner said, " All right, my boy ; I'll give it to you," but he did not return it, and was taken into custody. BeM, not to be a larceny. Begina v. Jacobs (Cox's C. C), II, 204. 94. The prisoner's goods having been seized under warrants of execu- tion of a county court, and being in the possession of the bailiff, the prisoner, with intent to deprive the bailiff, as he supposed, of his authority, and so defeat the execution, forcibly took the warrants from him. Held, that the prisoner was not guilty of larceny, but that he was guilty of taking the warrants for a fraudulent purpose within the meaning of 24 & 25 Vict., c 96, s. 30. Begina v, Bailey (C. C. Res.), I, 394. 17 130 CRIMINAL LAW. 95. Receiving stolen goods. An indictment charged S. with stealing 18«. ad., and C. with receiving the same. The facts were : S. was a barman at a refreshment bar, and C. went up to the bar, called for refreshments and put down a florin. S. served C, took up the florin, and took from his employer's till some money, and gave C. as his change 18«. 6d., which C. put in his pocket and went away with it. On leaving the place he took some silver from his pocket and was counting it when he was arrested. On entering the bar, signs of recognition took place between S. and C, and C. was present when S. took the money from the till. The j ury convicted S. of stealing and C. of receiving. Jleld, that this was evidence which the judge ought to have left to the jury as reasonable evidence upon which C. might have been convicted as a principal in the second degree-; and that, therefore, the conviction of C. for receiving could not be sustained. Begina v. Coggins (Cox's C. C), VI, 343. 96. Where aj)risoner was indicted for larceny of certain-goods and also for receiving, and the evidence against her consisted of the fact of the stolen property having been found concealed on her person, at about 10 o'clock on the morning after tlie night on which the goods were stolen, and the prisoner made a voluntary statement asserting she had found the goods, the judge directed the j ury to acquit the prisoner on the count for receiving, but the j ury, notwithstanding, acquitted the prisoner on the count for larceny, but convicted her of receiving, and the judge did not insist on the direction he had previ- ously given, but reserved for the Court for Crown Cases Keserved the ques- tion as to whether the evidence was sufficient in law to sustain the conviction on the count for receiving, it was held per curiam (Whiteside, C. J., dubitante) that the evidence was sufficient to sustain the conviction. Held, also, that whether the j udge withdrew his direction as to the count for receiving or not, the evidence being sufficient in law to sustain the conviction, the conviction must stand. Begina v. McMahon (Cox's C. C), XV, 308. 97. IiibeL The court will not sanction applications for criminal informa- tion in cases of alleged libel, if resorted to for the purpose of extorting an apology. Begina v. Tlie World (Cox's C. C), XV, 840. 98. All excuses for the publication of a libel, as accidental error, inadvertence, and such like, should be promptly made before a criminal infor- mation has been granted, in order to avail. lb. 99. It is not enough to say we were " misled," nor is " personal malice " material. To repeat a malignant scandal floating about society, although with no intent to inj ure any person in particular, is sufficient to support a, criminal information. lb. 100. A libel of a serious character being brought before the court, it will not sanction a compromise between the parties, but the prosecution once instituted must take its course ; the object of such a proceeding being not the vindication of character, but the repression of scandalous libels. lb. 101. In future, the court will lay down a stringent rule, that in such cases the counsel who applies for a criminal information shall give ,an under- taking on the part of the prosecutor to proceed with the prosecution, in order to insure its being carried to its legitimate conclusion. lb. 102. Malicious mischief. The prisoner had been fighting with persons in the street and threw a stone at them, which struck a window and did damage OEIMINAL LAW. 131 to an amount exceeding £5. He was Indicted under the Malicious Injury to Property Act for " unlawfully and maliciously " causing this damage. The jury convicted him, but found that he threw the stone at the people he had been fighting with, intending to strike one or more of them, but not intending to break the window. Held, that by thus finding, the jury negatived the exist- ence of malice, either actual or constructive, and the conviction must, there- fore, be quashed. Regina v. Pembliton (C. C. Res.), IX, 501. 103. On an indictment under 34 & 25 Vict., c. 97, s. 40, for unlawfully and maliciously killing, maiming and wounding a mare, it was proved that the prisoner caused the death of the mare through injuries inflicted by his insert- ing the handle of a fork into her vagina, and pushing it into her body. There was no evidence that the prisoner was actuated by ill-will toward the owner of the mare, or spite toward the mare, or by any motive except the gratification of his own depraved taste. The jury found that the prisoner did not, intact, intend to kill, maim or wound the mare ; but that he knew what he was doing would or might kill, maim or wound the mare, and, nevertheless, did what he did recklessly and not caring whether the mare was injured or not. The jury convicted the prisoner. Held, that there was sufficient malice, and that the conrietion was right. Regina v. Welch (Q. B. Div.), XV, 159. 104. A building, as that term is used in 24 & 25 Vict., c. 97, s. 6, making it felony to unlawfully and maliciously set fire to " any building," is not neces- sarily a.finished structure. Regina v. Manning and Rogers (C. C. Res.), I, 230. 105. — r- An unfinished house, of which the walls were built and finished, the roof on and finished, a considerable part of the flooring laid, and the inter- nal walls and ceilings prepared ready for plastering, held, to be a build ing within the meaning of the section. lb. 106. Nuisance. By 24 & 25 Vict., c. 70, s. 7, " Where any turnpike or other roads upon which locomotives are used, pass over any stream or water-course, navigable river, canal or railway by means of any bridge, and such bridge shall be damaged by reason of any locomotive passing over the same, or com- ing into, contact therewith, none of the proprietors, undertakers, directors, conservators, trustees, commissioners, or other persons interested in or having the charge of such navigable river, canal or railway, or the tolls thereof, or of such bridge, shall be liable to repair any damage so to be occasioned ; but every such damage shall be forthwith repaired to the satisfaction of the proprietors, undertakers, directors, conservators, trustees, commissioners, or other persona as aforesaid respectively interested in or having the charge of such i;iver, canal or railway, or the tolls thereof, or of such bridge, by and at the expense of the owner or the person having the charge of such locomotive." Held, that this section does not apply to a county bridge. Regina v. Kitchener (C C. Res.), VII, 337. 107. Perjury. The 3 Geo. 3, c. 25, s. 3, imposes the sentence of transporta- tion (now altered to penal servitude) on persons convicted of perjury accord- ing to the laws then in being. The defendant was convicted of perjury on an indictment, one count of which averred that the oath was taken in the court of chancery, before a commissioner authorized to take an oath by 16 & 17 Vict., c. 78 ; he was sentenced to penal servitude upon that count. Held, that the offense of perjury consists in taking a false oath in a judicial proceeding, and 132 CRIMINAL LAW. whether the oath is taken in a judicial proceeding before a court at common law, or acting under a statute, it is equally an oath taken in a j udicial proceed- ing, and punishable by penal servitude. Begina v. TicKborne alias Castro (Q. B.), IX. 333. 108. On an indictment for perjury committed on the hearing of a charge of assault by a husband on his wife, an assignment of perjury in a statement by the prisoner, as a, witness for the husband, that he had seen the wife com- mitting adultery (of which he had told the husband), held, bad for immateri- ality, as the supposed statement would not be legally relevant to the charge of assault, nor afford any ground of legal justification. Begina v. Tate (Cox's C. C), II. 164. 109. The prisoner was indicted for perjury committed by him on the hearing of a summons which he had taken out against the prosecutor before the»justices at petty sessions, for using language calculated to incite him to commit a breach of the peace. The language was used by the prosecutor, as he alleged, in consequence of the prisoner having kicked and struck a horse, and several witnesses were called who proved this. The prisoner's attention was then called to what the witnesses had said, and he was asked on cross- examination whether it was true ; he, however, denied that he had ever kicked or struck the horse. Held, that no perjury could be assigned, as the statement by the prisoner that he had never kicked or struck the horse was merely collateral. Begina v. Holden (Cox's C. C), II, 319. 110. On the trial of an indictment for perjury committed at an inquest before the deputy coroner, evidence was given by the prosecution that the cor- oner, who was also a county court registrar, was absent on his vacation, a vaca- tion and air and exercise having been recommended by medical advisers for his health, which had become permanently impaired. It also appeared that the coroner, during his absence, spent three or four days every week in shoot- ing, and that by far the greater number of inquests held in the district were held by the deputy coroner. i£isM, that it was a question for the judge, and not for the j ury , whether the coroner was absent at the time for a lawful or reasonable cause, within 6 & 7 Vict., C..83, s. 1. £eM, also, that the inquisi- tion was valid, and that the deputy coroner was lawfully acting at the time (sect. 3 of same statute). Begina v. Johnson (Cox's C. C.) IV, 540. 111. Piracy is only a sea term for robbery, it being a robbery within the jurisdiction of the admiralty. If mariners or passengers of a ship violently dispossess the master and afterward carry away the ship itself, or any of the goods, with a felonious intention, within the j urisdiction of the admiralty, that is robbery and piracy. Attorney-General v. Kwok-a-Sing (Priv. C), VIII, 143. 112. Rape. If a man has or attempts to have connection with a woman while she is asleep, it is no defense that she did not resist, as she is incapable of resisting. The man can, therefore, be found guilty of a rape or of an attempt to commit a rape. Begina v. Mayers (Cox's 0. C), IV, 559. 113. On an indictmeiit for rape, it was proved that the prosecutrix was fourteen and a half years old, and that ever since she was six weeks old she was blind and wrong in her mind ; that she was hardly capable of understand- ing any thing that was said to her, but that she could go up and down stairs CRIMINAL LAW. 133 by herself ; that if placed in a chair by any one she would remain there till night, passing her evacuations and water in the chair; that if told to lie down she would do so ; that she could not communicate to her friends what she wanted; that she could feed herself a little, but that she was obliged to be dressed und undressed, and that she was unable to do any work. It was fur- ther proved that the father of the prosecutrix, on returning home one day, looked through the window of the sitting-room and saw the prisoner lying on the prosecutrix on a couch in the room, on which she had been placed by her sister, whom the prisoner then sent on an errand to adistance, and who desired the prosecutrix to lie on the couch till her return. On going into the room he found the prisoner standing up at the end of the couch, buttoning up hia trowsers, while the prosecutrix was lying quietly on the couch. There were no external marks of violence on the person of the prosecutrix. The learned judge told the jury that if the prisoner had connection with the prosecutrix by force, and if she was in such an idiotic state that she did not know what the prisoner was doing, and if the prisoner was aware of her being in that state, they might find him guilty of rape. But if from animal instinct she yielded to the prisoner without resistance, or if the prisoner from her state and condi- tion had reason to think she was consenting, they ought to acquit him. The jury found the prisoner guilty of an attempt at rape. Held, that the prisoner was rightly convicted. Begina v. Barratt (C. C. Res.), VII, 330. 114. Resisting officer. Where goods were seized under a warrant of the high sheriff addressed to a special bailiff, grounded on a writ of fi. fa. from one of the superior courts, which warrant conferred no authority on the special bailiff to employ assistants, and the goods were rescued from the custody of the assistants, it was held that an indictment was not sustainable for " by violence and threats of violence, compelling " the special bailiff to "abandon the seizure of the goods (MORRIS, C. J., Kkogh, J. , and Lawson, J., dissenting.) Begina v. Noonan (Cox's C. C), XV, 337. 115. Sale of liquor to constable. The servant of a licensed victualler know- ingly supplied liquor to a constable on duty, without the authority of his superior officer. Held, that the licensed victualler was liable to be convicted under 35 & 36 Vict., c. 94, s. 16, subs. 2, although he had no knowledge of the act of his servant. Mulling v. Collins (Q. B.), VIII, 351. 1 6. Sunday, violation of. The defendants, a company incorporated by an act of Parliament, are the owners of the Brighton Aquarium, a building which consists of chambers below the level of the ground, and a terrace above. The chief part is used as an aquarium, filled with glass tanks for the exhibi- tion of marine fish and animals. The whole is open to the public on Sunday on the payment of M. each person. An action having been brought against the defendants to recover a penalty under 31 Geo. 3, c. 49, s. 1, for keeping open a place of entertainment and amusement on the Lord's day or Sunday, held, that the aquarium, under the above circumstance, was a place of entertain- ment and amusement within the statute. Wa/rner v. Brighton, etc. Go. (Exch.), XIV, 578. 117. Threatening, etc. The defendants, husband and wife, were indicted for having by threats of violence and restraint induced the prosecutor to write 134 CEIMINAL LAW, and affix his name to the following document : " London, July 19, 1875. I hereby agree to pay you £100 sterling oa the 37th inst. to prevent any action against me." Held, that this document was not a promissory note, but was an agreement to pay money for a valid consideration which could be sued upon, and was, therefore, a valuable security. To constitute a valuable security within the meaning of the statute an instrument need not be negotiable. ij«- gina v. Jvhn (Cox's C. C), XIII, 443. 118. Unlawful wounding. The prosecutor and prisoner were out at night in separate punts, on a creek, in pursuit of wild fowl. The prisoner, who was jealous of any one going there to shoot, and had threatened to fire at birds notwithstanding other persons might be between him and them, discharged his gun from a distance of tWenty-five yards toward the punt in which the prosecutor lay paddling. At that moment the prosecutor's punt slewed round, and the prosecutor was struck by some of the shot and seriously wounded, whereupon the prisoner rendered bin; help, assuring him that the injury was an accidental result of the slewing round of the punt. The night was light and the boat visible fifty yards off. No birds were in view. The two men had always been on good terms, and the gun was fired apparently with the intention of frightening the prosecutor away rather than of hurting him. The prisoner was indicted for the felony of wounding with intent to do grievous bodily harm ; but the jury, under 14 & 15 Vict., c. 19, s. 5, found him guilty of the misdemeanor of unlawfully wounding. Hdd, that " unlaw- ful wounding " within the meaning of that section must be " malicious ;" and that there was proof of malice, which justified the conviction of the prisoner. Segina v. Ward (C. 0. Res.), I, 403. II. Indictment; dbpbkses. 119. Arson. It is not necessary in a count in an indictment laid under sec. 7 of 24 & 35 Vict., c. 97, to allege an intent to defraud, but it is sufficient to follow the words of the section without substantively setting out the par- ticular "circumstances" relied on as constituting the offense. Segina v. Eeseltine (Priv. C), V, 483. 120. Averment of ownership. Two prisoners were indicted under 34 & 35 Vict., t. 97, a. 3, for feloniously setting fire to a shop " of and belonging to" one of the prisoners. Held, that the averment of property in the prisoner was an immaterial averment, which need not be proved ; and that an intent to injure another person as owner might be proved in support of the indictment. Regina v. NewbouU and Holdsworth (C. C. Res.), I, 391. 121. Attempt. A count in an indictment charged that the prisoner unlaw- fully, wickedly and indecently did write and send to H. a letter, with intent thereby to move and incite H. to attempt arid endeavor, feloniously and wick- edly to commit an unnatural offense, and by the means aforesaid did unlaw- fully attempt and endeavor to incite H. to attempt to commit the crime afore- said. Held, that the count charged an indictable misdemeanor. Segina v. Sansford (Cox's C. C), XI, 863. 122. The evidence was, that H. was a boy at school, and that he had received two other letters from the prisoner, which he read, but that when CRIMIlSrAL LAW. 135 • he received the one mentioned in the above count he did not read it, nor waa he in any way aware of its contents, but handed it over to the school authorities, Seld, that the sending the letter proved the attempt to incite, although it might be doubtful whether it could be said to amount to incit- ing or soliciting, inasmuch as H. was not aware of its contents. lb. 123. Conspiracy. Where N. W. was indicted and convicted on an indict- ment charging that he and others did conspire by false pretenses to defraud of large sums of money all such persons as should apply to or negotiate with them for a loan of money, the indictment so framed was held too vague and uncertain in its language to sustain a conviction, which was reversed on writ of error. White v. The Queen (Cox's C. C), XV, 353. 124. False pretenses. Where in an indictinent for false pretenses the words "with intent to defraud " are omitted, the indictment is bad and can- not be amended under 14 & 15 Vict., c. 100, s. 1. Begina v. Jamea (Cox's C. C), II, 192. 125. The Debtors Act (33 & 33 Vict., c. 63), s. 19, enacts : That in in- dictments for offenses under that act it shall be sufficient to set forth the sub- stance of the offense charged in the words of the act, specifying the offense, "without setting out any debt, act of bankruptcy, trading, adjudication or any proceeding in, or order, or warrant, or document of any court acting under the Bankruptcy Act, 1860." Section 11, sub-section 13, enacts, " that if within four months next before the presentation of a bankruptcy petition, the trader by any false representation or other fraud has obtained any property on credit and has not paid for the same," etc., held, on motion in arrest of judgment, that an indictment for misdemeanor framed upon the latter section, which merely charged " that a bankruptcy petition was presented against the defendant to the county court, etc.,upon which the defendant was adjudged bankrupt, and that the defendant within four months before the presentation of the said petition did, by certain false representations, obtain from B.,on credit, certain property, and has not paid for the same," was sufficient under the above statute, and, also under Peel's Act (7 Geo. 4, c. 84), s. 30. Begina v. Watkinson, (Cox's C. C), IV, 547. 126. Forgery. 34 & 35 Vict., c. 98, s. 38, enacts that " whosoever shall forge or fraudulently alter any process of any court " (with certain exceptions), " shall be guilty of felony." , Held, that an indictment for forgery under tliat section must allege an intent to defraud. Begina v. Pawner (Cox's C. C), IV, 525. 127. Iiarceny. An indictment framed upon the '31 & 33 Vict., c. 116, s. 1, alleged that B. was a member of a copartnership consisting of B. and L., and that B., then being a member of the same, eleven bags of cotton waste, the property of the said copartnership, feloniously did steal, etc., contrary to the statute. Held, that the indictment was not bad for introducing the word "feloniously." Begina v. Butterworth (Cox's C. C), II, 195. , 128. IjibeL An indictment which charged that the prisoner printed and published a libel of and concerning B. 0., the prosecutor, according to the tenor and effect following, viz. : " B. 0. of C. (meaning the said B. 0.), game and rabbit destroyer, and his wife (meaning Charlotte, the wife of the said B. 136 CRIMINAL LAW. 0.), the seller of the same in country and town," hdd bad for want of inu- endoea.or averments showing that the words alleged to be defamatory charged an indictable offense, or had reference to the calling of the prosecutor. Regina V. Tate) (Cox'b C. C), IV, 523. 129. Perjury. Upon an indictment for perjury committed before magis- trates at petty sessions, upon a charge of stealing suet, the assignment was that the defendant falsely swore that he saw one Coates take the suet. Held, that as the indictment did not aver that Coates took the suet feloniously, it was bad. Regina v. Grawley (Cox's C. C), II, 315. 130. Defects aided by verdict. There is no distinction between civil and criminal pleadings as to defective allegations which are aided by verdict at common law. Heymann v. The Queen (Q. B.), IV, 241. 131. Indictment that "defendant and others unlawfully and wickedly did conspire and agree together, contrary to the provisions of the Debtors Act, 1869, and within four months next before the presentation of a bankruptcy petition against defendant, fraudulently to remove part of the property of defendant to the value of £10, that 'is to say [enumerating divers articles], defendant then being » trader, and liable to become a bankrupt." To this there was a plea of not guilty, and a verdict of guilty and judgment. Error was brought on the ground that there was no allegation that defendant was ever adjudged bankrupt. Held, that the fact of defendant having been ad- judged a bankrupt was not necessary to complete the offense of conspiracy ; it was complete if the persons charged had agreed to remove the goods in con- templation of an adjudication being obtained; and that this, though not ex- pressly alleged, must be taken after verdict to have been proved before the jury; and that the defect was, therefore, cured by verdict. lb. 132. The prisoner was indicted, under 34 & 35 Vict., o. 96, s. 95, for un- lawfully receiving goods knowing them to have been obtained by false pre- tenses. The indictment did not set out the false pretenses. At the trial, at the close of the case for the prosecution, it was objected, on behalf of the pris- oner, that the indictment was bad, because it did not set out the false pre- tenses. The prisoner was convicted. Ueld, that the objection, if available, should have been taken by demurrer or motion to quash, and not after verdict in arrest of judgment, and that after verdict the indictment was good. Regina, V. Goldsmith (C. C. Res.), V, 437. 133. The prisoner was indicted for stealing nineteen shillings and six- pence. He was proved to have stolen a sovereign. Held, that by 14 & 15 Vict., c. 100, s. 1, the court at the trial had power to amend the indictment, if neces- sary, by substituting the word " money " for the words " nineteen and six- pence ; " and that, where the prisoner was convicted by evidence sustaining the indictment so amended, it might be treated as amended before verdict. Regina v. Qumble (G. C. Res.), IV, 505. 134. Defenses — belief of death. A hona fide belief by a wife that her hus- band ia dead is no defense to an indictment for bigamy, unless he has been continuously absent for seven years. Regina v. Gibbons (Cox's C. C), IV, 527. 135. Coercion. The doctrine of coercion, as applicable to a crime com- mitted by a married woman in the presence of her husband, only raises a dis- CEIMINAL LAW. 137 putable presumption of law in lier favor, which is, in all cases, capable of being rebutted by the evidence. Begina v. Tm-pey (Cox's C. C), II, 180. 136. This disputable presumption of law exists in misdemeanors as well as in felonies, and the question for the jury is the same in both cases. lb. 137. The doctrine in question applies to the crime of robbery with violence. lb. 138. Setnble, where a man and woman are indicted together for a joint crime, and it appears from the evidence for the prosecution that they had lived together for some months as husband and wife, having with them an infant who passed as their child, it is not necessary for the woman to give evidence of her marriage in order to entitle her to the benefit of the doctrine of coer- cion, although the indictment does not describe her as a married woman. lb. 139. Consent by child. On an indictment for carnal knowledge of a, girl above ten years of age and under twelve, and also for an assault, 7ield, on the ' latter count, although consent would be a defense, consent extorted by terror, or induced by the influence of a person in whose power she feels herself, is not really such consent as will have that effect. Begina v. WoodKurU (Cox's C. C), V, 496. 140. Qucere, if such consent can be given in such a case by a child, who is not sui juris? lb. 141. Contributory negligence is not an answer to a crimin&l charge, as to a civil action. Begina v. Kew & Jackson (Cox's C. C), IV, 605. 142. Former acquittal. Upon trial of an indictment for false pretenses, it was contended for the prosecution that by sect. 88 of 34 & 25 Vict,, c. 96, it had been expressly enacted that the defendant may be convicted , although it appear at the trial that the offense amounts to larceny and not merely to obtaining money, etc., by false pretenses, and, therefore, that if the jury should be of opinion that the property was obtained by a trick with intent to steal, it would amount to a larceny in law, and the prisoner might be convicted under this indictment by virtue of this provision of the statute. For the prisoner it was contended, that having been acquitted upon the same evidence on a charge of larceny for stealing these very articles, it would be contrary to the spirit of the law if he could be convicted of the same larceny under the form of an indictment for false pretenses. The whole case was left to the jury, the judge intimating his concurrence with the views advanced on behalf of the prisoner, and stating that, if necessary, he should reserve the question for the Court of Criminal Appeal. Begina v. Badcliffe (Cox's C. C), VI, 334. 143. Former conviction. The appellant was ■ summarily convicted under 8. 78 of 5 & 6 Wm. 4, c. 50, for that he, being driver of a carriage on a high- way, by negligence and willful misconduct, to wit, by striking a horse ridden by the respondent, caused hurt and damage to the respondent ; he was afterward convicted, on the same facts, under s. 43 of 34 & 35 Vict., c. 100, for unlawfully assaulting the respondent. Held, that the first conviction was a bar to the second. Wemyss v. Hopkins (Q. B.), XIII, 306. 144. The prisoner was tried for the manslaughter of A., found guilty and sentenced. Shortly after his trial the coroner's jury returned an inquisi- tion for willful murder upon the same facts. At the next assizes the prisoner was arraigned upon such inquisition, when he pleaded autrefois eonmet. The 18 138 CRIMINAL LAW. facta of identity of the prisoner and deceased having been given in evidence, and the judge having read the depositions, which, as he thought, disclosed a case of manslaughter, he held the plea to be proved, at the same time stating that, if he thought the case would ultimately have resolved itself into one of murder, he should have tried the prisoner, and, if necessary, reserved the point for the consideration of the Court for Crown Cases Reserved. Begina v. Tan- cock (Cox's C. C), XIV, 654. III. Evidence. 145. Before grand jury. Upon a bill of indictment being presented, the grand jury made an application for the deposition of an absent witness. Held, per Byles, J., that they were entitled to peruse the deposition without. formal proof that the witness was too ill to travel. Begina v. Bullard (Cox's C. C), IV, 603. 146. In argon. Evidence of experiments made subsequently to the fire is admissible, in order to show the way in which the building was set fire to. Begina v. Seseltine (Priv. C), V, 483. 147. In bigamy. On an indictment for bigamy every thing relating to the first marriage must be proved strictly, and evidence of a marriage in Scotland by a Roman Catholic priest, who has previously performed similar ceremonies there, will not suffice without due proof of what the law as to such marriage is, although the prisoner may have admitted that he was, in fact, married in Scotland. Begina v. Savage (Cox's C. C), XIV, 633. 148. In burglary. An attempt to commit a burglary may be established on proof of a breaking with intent to rob the house, although there be no proof of an actual entry. So Iield, where the proof only showed that a pane of glass was broken near the latch of the window, at one o'clock in the morning, and the prisoner's finger thrust through it Begina v. Spanner (Cox's C. C), II, 308. 149. In bli6 pretenses. Parol evidence that a joint-stock company (limited) has acted as an incorporated company ts sufficient evidence of its incorporation as a limited company, on an indictment for false pretenses, in which the prop- erty obtained is alleged to be the property of the A. B. Company (limited). Begina v. Langton (Cox's C. C), XV, 366. 150. lu forgelry. If the forged writing be not produced at the trial of the forger thereof, the best proof that can be given of the loss or destruction of the original instrument must be adduced before a copy may be used as second- ary evidence. Begina v. Ball (Cox's C. C), II, 312. 151. Therefore, where the only evidence of the loss of a forged note was that of the attorney for the prosecution, to whom it had been intrusted, and who swore that he had last seen it when he placed it in an old purse, which he afterward laid by in his office as useless, and finally gave to his clerk ; and that he had made thorough search and inquiry, but was unable to find the note, and believed it to have been burnt with the purse, by the clerk, hdd, that the latter should have been called as a witness, and in the absence of his testimony, no sufficient proof of the loss or destruction of the note had been given to lay the foundation for the admission of secondary evidence of the instrument. lb. OEIMINAL LAW. 139 162. In larceny. Prisoner was charged with stealing a mare, the property of E. The evidence was that prosecutor, in presence of the prisoner, agreed to buy of W. a mare for £5, and that W. assented to take a check for the £5. The prosecutor afterward sent prisoner to W. with the check, and directions to take the mare to Bramshot farm. On the next day prisoner sold a mare to S., which he said he had bought for £5. When charged before the magistrate with stealing E.'smare.he said he sold the mare to S. with the intention of giving the money to E., but that he got drunk. Held, that that was sufficient evidence on which a jury might find that the mare sold to S. was the property of B. Regina v. Mng (Cox's C. C), II, 198. 153. In manslaughter. The act (23 & 34 Vict., c. 151) which imposes on the owner of an abandoned mine the duty of securely fencing the same, does not apply to mines abandoned before the passing of the act. Regina v. Oratrex (Cox's C. C), II, 210. 154. In peljory. On trial for perjury, alleged to have been committed before justices at the hearing of an information under the Beer-house Licens- ing Acts against the keeper of such a house, his license must be produced in order to show the jurisdiction of the justices and the materiality of the false evidence. Regina v. Lewis (Cox's C. C), II, 216 ; S. P., Regina v. Willis (Cox's C. C), II, 318. 155. In rape. The prosecutrix in an indictment for an indecent assault, which, on the facts alleged, amounted, in substance, to an attempt at rape, was asked in cross-examination whether she had not previously had connection with a man other than the prisoner, and denied it. Held, that she could not be contradicted. Regina v. Holmes and Fwmess (C. C. Res.), I, 226. 156. In sale of Uquors. By the Licensing Act, 1873 (35 & 36 Vict., c. 94), s. 24, premises in which intoxicating liquors are sold are to be closed during cer- tain hours ; and " any person who sells or exposes for sale, or opens or keeps open premises for the sale of intoxicating liquors during the time that such premises are directed to be closed, in pursuance of this section," is made liable to certain penalties ; and in a subsequent clause it is enacted, that " none of the provisions contained in this section shall preclude a person licensed to sell any intoxicating liquor to be consumed on the, premises from selling such liquor to bona Jide travelers or persons lodging in his house." By s. 51, sub. 4, " any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offense in this act, may be proved by the defendant, but need not be specified or negatived in the information, and if so specified or negatived, no proof in relation to the matters so specified or negatived shall be required on the part of the informant or complainant." The keeper of licensed premises having been charged with opening his premises for the sale of intoxicating liquors during prohibited hours, and persons having been shown to have been supplied 'Vith liquor on his premises during such hours, Jield, that the onus of showing that the per- sons came within the exception lay on the defendant. Roberts v. Humphreys (Q. B.), VII, 93.. 157. Quwre, whether proof on the defendant's part of a bona fide though mistaken belief that the persons were travelers would have been sufficient? lb. 140 CRIMINAL LAW. 158. Burden of proof. Upon the trial of an Indictment for larceny of clothes placed in possession of the defendant, as bailee, to be delivered to an- other, held, that the burden of proof was upon the prosecution to show that he did not execute his contract of bailment, but feloniously converted them to his own use. Begina v. Raddiffe (Cox's C. C), VI, 324. 169. Admission as witness. According to the English law, introduced into lower Canada at the time of the cession of Canada to England in 1763, and unaffected by subsequent Canadian or imperial statutes, the depositions on oath of a witness legally taken are admissible evidence against him, if he is subsequently tried on a criminal charge. Begina v. Coote (Priv. C), V, 159. 160. The only exception is in the case of answers to questions which he objected to when his evidence was taken as tending to criminate him, but which he has been improperly compelled to answer. lb. 161. A. was indicted for felony. At the trial the crown put in evidence depositions sworn to by him.'wlthout being cautioned that what he so deposed to might be given in evidence against him, before fire commissioners empow- ered by the Quebec statutes, 31 Vict., c. 31, and 33 Vict., c. 39, to investigate the origin of any fires occurring in Quebec, and before any charge or accusa- tion had been made against him. Held, that the depositions were properly ad- mitted as evidence against the prisoner at the trial. lb. 162. The words " I must know more about it," said by a police constable to a prisoner in the course of a conversation between them respecting the sub- ject-matter of the charge, immediately before apprehension, are not a, suffi- cient inducement to exclude an admission. Begina v. Beason (Cox's C. C.'), IV, 517. 163. It is the duty of a police constable to hear what the prisoner has voluntarily to say, but after the prisoner is taken into custody it is not the duty of the constable to ask questions ; and he should be very careful and cautious in doing so, if he has reason to think a person will be taken into custody. lb. 164. Confession. A female prisoner, in custody on a charge of muider, de- siring to go to a water closet, was sent there by the police with a woman who was impliedly authorized to prevent her escape. When alone together in the closet, the woman, an acquaintance of the prisoner, alluding to the crime, said: "How came you to do it ? " whereupon the prisoner made a statement in the nature of a confession. Held, that the statement was not induced by any hope or fear caused by a person in authority, and was, therefore, admissi- ble in evidence against the prisoner. Begina v. Vernon (Cox's C. C), II, 306. 165. Where a prisoner has been told by a constable, at 10 o'clock \. M., that it would be better for him to tell the truth, and not to put people to the extremities he was doing, an admission by the prisoner to another constable, after 6 o'clock in the evening of the same day, was not allowed to be given in evidence, although the second constable had previously cautioned the prisoner. Begina v. Doherty (Cox's C. C), XI, 378. 166. The prisoners, two children, one aged eight and the other a little older, were tried for attempting to obstruct a railway train. It was proved that the mothers of the prisoners and a policeman being present after they OKIMINAL LAW. 141 had been apprehended, the mother of one of the prisoners said : " You had better, as good boys, tell the truth, " whereupon both the prisoners confessed. Seld, that this confession was admissible in evidence against the prisoners. Segina v. Reeve (C. C. Res.), II, 238. 167. To render a confession admissible, it is not so much material to prove to whom or when it is made, as it is to ascertain the mind of the party making it, and to see whether or not it is probable that it was made volun- tarily. The prisoner, a servant girl, was questioned by the mother of a child who had been found dead in a ditch, and she was asked whether she had any thing to do with its disappearance; upon which she cried and said, " If you won't send for the police I will tell the truth ; " whereupon her mistress replied, " I will not hurt you if you tell the truth ; you will be much happier if you tell the truth ; " and she promised not to send for the police ; where- upon the prisoner made a confession which, upon the trial, was rejected as being made under an inducement. It further appeared that, shortly after this confession, the mistress sent for a neighbor and informed him of the confes- sion, whereupon he had an interview alone with the ■ prisoner, and asked her questions upon the subject, but he held out no inducement, and she then made a similar confession. Meld, that the second confession was so connected, under the circumstances, with the first, that it was inadmissible. Begina v . , Hue (Cox's C. C), XIV, 646. 168. Prosecutrix lost her purse, containing £1 4g., in a market, and asked the prisoner, who had been standing near her, whether he had seen the purse or seen any one pick it up. He replied that he had not. She, however, suspecting that he had robbed her, gave information to the police. A police- man, a short time after, went in search of the prisoner, and having found him, told him that the prosecutrix had lost her purse, and that it was supposed that he had picked it up, and added, " Now is the time for you to take it back to her." He denied having it, and went with the policeman. As they walked along he commenced making a statement, but the policeman told him to say nothing until they saw the prosecutrix. Having met the prosecutrix after they had walked about 600 yards, some conversation took place, and the prisoner was searched, and on a half sovereign being found, the prisoner said to the prose- cutrix that he would make it all up to her. Twenty minutes had elapsed between the time of the policeman's remark, " Now is the time to take it back to her," and the -prisoner's statement, "that he would make it up to her." Held, that there was no inducement heldout to the prisoner, and that his state- ment or confession that he would make it all up to her was admissible in evidence against him. Begina v. Jones (Cox's C. C), IV, 530. 169. Declarations. Expressions denoting a bad feeling toward deceased, made use of some time before the crime is committed, are admissible in evidence, but the jury must receive them with great caution. Begina v. Hagan (Cox's C. C), IV, 606. 170. A witness may be asked whether the prisoner made a statement at a particular time as to his intention, but cannot be asked what that state- ment was. Begina v. Wainwright (Cox's C. C), XIV, 623. 171. Dying declarations. A statement made by deceased, under circum- stances which would not render it admissible as a dying declaration, becomes 142 OEIMINAL LAW. admissible if repeated in his presence and at his request by the person to Whom it was previously made, and assented to by deceased (presuming that he is then in such a state that if he had made a statement it would have been admissible as a dying declaration). Megina v. Steele (Cox's C. C), II, 231. 172 Where the deceased made certain statements, first to a doctor and then to a nurse (both in the absence of the prisoner), of a directly contradictory nature, but both relating to certain wounds upon the deceased which ulti- mately caused her death, held, that although the names of both of the wit- nesses were on the back of the indictment, and both had been called before the grand jury, the prosecution were not bound to call such witnesses simply because' their names were on the back of the indictment. Regina v. Thom/p son (Cox's C. C ), XIV, 635. 173 S«M, also, that, if the defense insisted on having the statement from the nurse, which was favorable to the prisoner's version of the affair, given in evidence, the prosecution would then be entitled to give the other statement (the one to the doctor) in reply as rebutting evidence. lb. 174. Oity charter. Upon trial of an indictment for personating another at a municipal election, it is not necessary to produce the charter of a city to prove that it is a municipal corporation ; production of the minutes of the • council at which the alderman was chosen for the ward is sufficient evidence, if it proves that the councillors of the ward were present on the occasion, and it is a sufficient compliance with- sect. 43 of 5 & 6 Will. 4, c. 76. Regina v. Ihirner (Cox's C. C), IV, 561. 175. Peposition. The deposition 'of a witness in a criminal prosecution, who has traveled to the assize town, but is too ill to attend court for examination, may be read before the grand jury, after the illness of the witness and the due taking of the deposition has been proved to the satisfaction of the j udge. Regina v. Wilson (Cox's C. C), X, 504. 176. It is not essential that the proof of the deposition having been duly taken should be given by the clerk of the committing magistrate. lb. 177. Where a medical man testifies that the attendance of a witness, aged eighty-seven, who had given evidence before a coroner, will be dangerous to her life, and that he will not answer for the consequences if she be required to appear in court, but that she is suffering from no illness beyond great ner- vousness, which may bring on a fit of apoplexy if she has publicly to give her evidence, 7ield, that her deposition taken before the coroner was not admissi- ble. Regina v. Thompson (Cox's C. C), XIV, 635. 178. At the trial of an indictment it was proposed to read the deposition of a witness, on the ground that the witness was so ill as not to be able to travel. The evidence upon that point was as follows : The medical attendant of the witness was called and said ; " I know M. L. She is very nervous, and seventy-four years of age. I think she would faint at the idea of coming into court, but I think that she could go to London to see a doctor without difficulty or danger. I think the idea of seeing so many faces would be dangerous to her, and that she is so nervous that it might be dangerous to her to be examined at all. I think she could distinguish between the court going to her house and she herself coming to the court." The witness whose deposition it was CEIMINAL LAW. 143 proposed to read lived not far from the court. Held, that the deposition was not admissible. Regina v. Farrell (C. C. Res.), IX, 499. 179. Witnesses whose evidence had been duly taken at New York by the British Cousul-General, under the 17 & 18 Vict., c. 104, s. 307, were seamen of a British sailing vessel, which was proved by afiBdavits to be still at sea, and none of the witnesses were likely to be in the United Kingdom for many months. Held, that the affidavits sufficiently proved that the witnesses were out of the United Kingdom; their depositions were read, and the prisoner con- victed and sentenced. Regina v. Stewart (Cox's C. C), XV, 331. 180. In order to prove malice or motive against the accused, the depo- sition of the deceased against him, taken before the magistrates on another charge, and for which he was afterward convicted, was tendered in evidence, and held admissible. Regina v. Buckley (Cox's C. C), XV, 338. 181. Statements made by a prisoner while cross-examining a witness at a preliminary inquiry before the committing magistrates and reduced to writ- ing as part of the depositions, must be proved by the depositions, which are primary evidence and not by the witness so cross-examined. Regina v. laylor (Cox's C. C), XIII, 437. 182. EiKamination in bankruptcy. A debtor petitioned for liquidation by arrangement on the 8th of June. The first meeting of creditors was held, and ' a resolution appointing a trustee passed on the 38th of June. The registrar's certificate of the appointment was dated the 5th of July. By a summons, is- sued on the 39th of June, the debtor was summoned to appear on the 9th of July, and be examined under ss. 97 and 96 of the Bankruptcy Act, 1869. He appeared on the 9th of July, and again on the 13th, to which the examination was adjourned, without objection, and was examined. The examination hav- ing been admitted in evidence against him on a subsequent indictment for an offense under s. 11 of the Debtors Act, 1869, held, that supposing the sum- mons to have improperly issued before the registrar's certificate of the appoint- ment of the trustee had been given, the defect was only an irregularity, which the debtor had waived by appearing and submitting to be examined without objection ; and that the examination was properly admitted in evidence. Re- gina V. Widdop (C. C. Bes.), IV, 507. 183. The Bankruptcy Act, 1869, is so far analogous to the Bankruptcy Act, 1849, that the Courts of Bankruptcy have power to compel bankrupts to give answers to questions criminating themselves, and, therefore, such an- swers are admissible in evidence against the bankrupt in a criminal prosecu- tion. Regina v. Hillam (Cox's C. C), II, 337. 184. Iietters. The prisoner was indicted for stealing, and also for receiv- ing from the other prisoners, knowing them to be stolen, four bags of rags. On his apprehension the prisoner was searched and in his pocket was found a letter addressed to him, containing some references to the transaction, which letter was asserted by his counsel to be in the handwriting of his wife. It was objected that, if this letter was written by the prisoner's wife, its contents could not be read in evidence against him, inasmuch as a wife cannot be a wit- ness against her husband. The contents of the letter were admitted, but with an intimation that a case would be reserved upon it. Regina v. Hilditch (Cox's C. C), II, 194. 144 OEIMINAL I^AW. 185. The prisoner was taken into custody for stealing from a dwelling- house, and when in the police station wrote two letters, one to his wife and the other to a friend. The prisoner was t'old that all letters would be read before being dispatched, and the letter in question was detained and a copy sent to its destination. Held, per Kelly, C. B., that the original addressed to the prisoner's wife was not admissible, because it belonged to her and could only be produced by her, and she was incompetent to produce it. Begina v. Pa/rmenter (Cox's C. C), II, 331. 1 86. The prisoner was indicted in four counts for obtaining money by false pretenses from four persons named, the false statements alleged being the same in all these counts ; in a fifth count for inserting, with intent to de- fraud the Queen's subjects, an advertisement in a newspaper containing the false statements mentioned in the previous counts and obtaining money there- by. It was shown at the trial that the prisoner had inserted in a newspaper an advertisement containing statements found to be false, offering permanent employment in the preparation of carte-de-visite papers, and adding, " Trial paper and instructions, Is. ," and giving an address. Six envelopes were found in the possession of the prisoner on his being apprehended, each directed to the address given, and containing an answer to the advertisement, and twelve postage-stamps. Two hundred and eighty-one other letters were , produced by a post office clerk. These letters had been addressed to the prisoner under the address given in the advertisement, and had been received at the post-office like the other letters ; but, having been stopped by the post-office authorities, none of them had ever been in the prisoner's possession or custody ; nor was any proof adduced that they were written by the persons from whom they purported to come. Each letter had been opened at the post-office before pro- duction at the trial, and each contained twelve stamps. The two hundred and eighty-one letters were admitted in evidence. Held, that, under the circum- stances, the letters were rightly received in evidence. Begina v. Cooper (Q. B. Div.), XV, 155. 187. Medical books. Cases cited in books on medical jurisprudence are not admissible even to form part of an address to the j ury. Begina v. Taylor (Cox's C. C), Xm, 437. 188. Official report. Where the deceased person, a constable, in the course of his duty, made, shortly before his death, and in the absence of the accused, a verbal statement in the nature of a report, to his superior officer (an inspector of police), as to where the deceased was going and what he was go- ing to do ; such report being material to the case for the crown, held, that such statement and report were admissible in evidence for the prosecution. Begina v. Buckley (Cox's C. C), XV, 338. • 189. Res gestae. On the trial of a prisoner for the murder of his wife, a neighbor swore that a week before the alleged crime was committed the deceased visited her house, bringing an axe and a carving knife, and- gave them to he* to take care of. Held, that the evidence of what was said by the deceased to the witness on handing her the instruments was admissible. Begina v. Edwards (Cox's C. C), IV, 518. 190. Suspicious circumstances. Upon the trial of a prisoner for the mur- der of her infant by suffocation in bed, held, that evidence tendered to prove OEIMINAL LAW. 145 the previous death of her other children at early ages was admissible, although such evidence did not show the causes from which those children died. Regina V. Boden (Cox's C. C), X, 511. 191. On the trial of an indictment for endeavoring to obtain an advance from a pawnliroker upon a ring by the false pretense that it was a diamond ring, evidence was admitted that two days before the transaction in question the prisoner had obtained an advance from a pawnbroker upon a chain which he represented to be a gold chain, but which was not so, and endeavored to obtain from other pawnbrokers advances upon a ring which he represented to be a diamond ring, but which, in the opinion of the witnesses, was not so. This ring was not produced. Held, that the evidence was properly admitted for the purpose of showing guilty knowledge. Re.gina v. Francis (C. C. Ees.), IX, 509. 192. Where a prisoner was charged with the murder of her child by poison, and the defense was that its death resulted from an accidental taking of such poison, evidence toprove that two other children of hers and a lodger in her house had died previous to the present charge from the same poison was held to be admissible. Regina v. Cotton (Cox's C. C), V, 479 . 193. Corroboration. Where an assignment of perjury was in the vague terms that defendant falsely swore that he had not treated a certain person to brandy, etc., on a certain day, instead of in the definite terms, that he had not treated him at a particular public house, on a, certain day, it was held, that proof of treating at two public houses, by two distinct witnesses, was sufficient to support a conviction, because any witness of a treating at a separate time and place on the same day was sufficient corroboration of the witness who spoke only to one act of treating. Regina v. Hare (Cox's C. C), XIV, 627. 194. Statement in absence of prisoner. It is improper to ask a witness iu examination in chief if a person " gave a description of the prisoner " to him when the prisoner was not present. Regina v. Taylor (Cox's C. C), XIII, 437. 195. Refreshing memory. It was the prisoner's duty, as a time-keeper, to give to a clerk (not the pay clerk) a list of the number of days on which each workman had worked, and it was the clerk's duty to enter these times in the time book and the amount of wages due to each workman according to such returns ; and from the time book at the time of paying the wages it was the prisoner's duty to read out aloud the number of days each man had worked, and the wages due, which were then paid to the workman by the pay clerk. The prisoner had willfully falsified the list by overstating the time one of the workmen had worked, and the false statement was entered in the time book by the clerk, and wages calculated accordingly. On the pay day the entries were read out aloud by the prisoner and the amount of wages so represented paid to the workman. On an indictment against the prisoner for false pre- . tenses, the pay clerk was called as a witness, and not remembering the par- ticulars of the entries he was allowed to refresh his memory by reference to the time book, although the entries were not made by himself, because he saw the entries at the pay time when they were read out by the prisoner, and knew that the prisoner then read the entries correctly, and that he, witness, had paid, the sums mentioned in those entries. Held, that the time book was prop- 19 146 CEIMINAL LAW. erly admitted to refresh the witness' memory. Begina v. Langton (Cox's 0. C), XV, 366. 196. Witness — co-conspirator. Two prisoners were jointly charged in an indictment with obtaining money by conspiracy and false pretenses. On being arraigned, one pleaded guilty and the other not guilty. On the trial of the indictment, the prisoner who had pleaded guilty was admitted as a witness against the other prisoner, although it was objected, that the evidence of a co-conspirator could not be received on the count for conspiracy. The jury • found the prisoner not guilty on the count for conspiracy, but guilty on the counts for false pretenses. Eeld, that the co-conspirator was admissible as a witness, and that the conviction was right. Begina v. Qallagher (Cox's C. C), XIII, 416. 197. Co-defendant. Where two prisoners are indicted and tried together, one is not a competent witness for the other. Begina v. Payne (C. C. Res.), I, 396. 198. Where two prisoners are indicted and tried together, the wife of one is not a competent witness for the other. Begina v. Thompson (C. C. Res.), II, 353. IV. Pbactice. 199. Arrest. In order to justify an arrest, even by an officer under a warrant, for a mere misdemeanor, it is necessary that he should have the warrant with him at the time. Therefore, in a case where the officer although he had seen the warrant, had it not with him at the time, and it did not appear that the party knew of it, held, that the arrest was not law- ful. Begina v. Chapman (Cox's C. O.), II, 160. 200. Place of trial. By 9 & 10 Vict., u. 34, b. 8, every writ of certiorari for removing an indictment from the Central Criminal Court shall specify the county or jurisdiction in which the same shall be tried, and a jury shall be summoned and the trial proceed in the same manner in all respects as if the indictment had been originally preferred in that county or jurisdiction. Begina v. TieMome, alias Castro (Q. B.), IX, 338; S. C, VI, 317. 201. An indictment was found by the grand jury in the Central Criminal Court for perjury committed within the jurisdiction of the Central Criminal Court. Thp perjuries assigned in one count were in respect of an path taken before a commissioner in Chancery, in the city of London ; and in the other count, in respect of an oath taken in the Court of Common Pleas, in Middlesex. The indictment was removed by certiorari into the Court of Queen's Bench, and Middlesex was specified as the county in which the indictment should be tried, and the jury were taken from that county.' Held, that the Court of Queen's Bench had a discretion to name in the certiorari the county or jurisdiction in which the trial was to take place, and that by the jurors summoned from that jurisdiction the same issues could be tried that would have been tried in the Central Criminal Court had the indict- ment not been removed. lb. CRIMINAL LAW. 147 202. Court, place of holding. Under 33 Vict., c. 6, s. 5, sittings at nisi prius for Middlesex may be held at tUe Sessions House, Westminster, instead of in Westminster Hall. lb. 203. Trial at assizes. An Indictment was found at the county sessions at Bedford against the defendant for obstructing a highway. Upon a certificate of such finding, the defendant was taken before a magistrate and bound by recognizance to appear and plead at the assizes. The indictment was not transmitted to the assizes, but was in the custody of the clerk of the peace. Held, that the judge of assize had no power to-order the clerk of the peace to send the indictment to the assizes ; that, as it was found at the sessions, and not transmitted for trial at the assizes, the court had no jurisdiction to try the same. Begina v. Wildman (Cox's C. C), IV, 603. 204. But a second indictment for the same offense being found by the grand jury at the assizes ; held, that the defendant, being bound to appear by recognizance, must be called upon to plead to the second indict- ment, lb. 205. Term. By 11 Geo. 4 & 1 Wm. 4, c. 70, s. 7, if a trial at bar shall be directed by any of the superior courts, it shall be competent for the jud2;es of such courts to appoint such day or days for the trial thereof as they shall think fit; and the time so appointed, if in vacation, shall, for the purposes of such trial, be deemed and taken to be a part of the preceding term. Begina v. Ticmome, alias Oasiro (Q. B.), IX, 333. 206. A trial at bar having been ordered, in an indictment for perjury, the Court of Queen's Bench, in Hilary Term, appointed for the trial the 23d of April, 1873, and every day up to and inclusive of the 1st day of November, 1873, and further ordered that, in case the trial should not terminate on or before the 1st day of November, 1873, the further trial should be adjourned till Michaelmas Term next, and be thereafter continued at such times as the court should then direct. Tlie court did not sit continuously, but adjourned not only over Sundays and holidays, but also over days included in this period on which it might have sat. The court afterward, in Michaelmas Term, 1873, made a second order, appointing every day in Michaelmas Term, 1873, and every day up to Michaelmas Term, 1874, for the trial. On the 28th of Febru- ary, 1874, a day in vacation after Hilary Term, the defendant was found guilty, and the court immediately passed sentence on him. Seld, that the court had, under the above enactment, power to appoint such days as they should think fit for the trial, and that it was not necessary that this power should be exercised once for all, or that it should be limited to the appointment of days in the vacation next succeeding the term in which the order was made, lb. 207. Held, also, that, as an incident to the trial at bar, the court had power to adjourn from time to time. lb. 208. Held, also, that a sentence, passed out of term, but on one of the days which, by virtue of the above enactment, are, " for the purposes of the trial, to be taken as part of the preceding term," was good, passing sentence being part of the trial. lb. 148 CEIMINAL LAW. 209. Postponement of trial. A judge of assize has power, on the applica- tion of the Crown, and notwithstanding the prisoner's demand for an imme- diate trial, to postpone such trial a second time after bill found by the grand jury, without ordering the prisoner's release on bail, if satisfied that such postponement is necessary in order to secure the ends of justice. Regina v. Dripps (Cox's 0. C), XI, 381. 210. SemUe, the second clause of the 21 & 22 Geo. 3, c. 11, s. 8 (Ir.), applies only to cases where the prisoner had neither been indicted nor tried at the first assizes after his committal. lb. 211. Information for Ubel, when disallowed. Where newspaper articles charged the relator with partiality from political motives, in the manner in which he discharged his duties as presiding officer at an election for members of a school board, and mentioned a specific instance where he had rejected the vote of a duly qualified female voter, who was politically opposed to him, though the relator in his affidavit denied generally the truth of all the charges, and also denied that he refused any voter on political or improper or illegal considerations, or prevented, directly or indirectly, any voter, who was legally qualified to vote and who observed the prescribed regulations, from voting, or put any obstacles in the way, or did any thing, at any time, calculated improp- erly to aflfect the election of any particular candidate, the court discharged a rule nisi for a criminal information which had been obtained against the publisher of the newspaper, because the relator had not negatived specifically the charge made against him as to the rejection of the female voter's vote. Regina v. Aunger (Cox's C. C), T, 486. 212. Order for information, vrheu discharged. Where, on an application to discharge a conditional order for a criminal information for libel, it appeared from the affidavits that the prosecutor was land agent over a large estate, and had raised rents and harshly treated the tenantry on the estate, and his conduct was criticised by the defendant in the alleged libels, which were published in a newspaper, and the prosecutor imputed bad motives and made accusations against the defendant in his affidavit, it was held that, although the court would refuse to grant the information had the libels merely been an imputa- tion on the private character of the prosecutor, yet that, as the alleged libels justified a previous attempt to assassinate the prosecutor, and pointed at his being eventually assassinated, the court would refuse to discharge the condi- tional order. Regina v. Gasey (Cox's C. C), XV, 345. 213. Inspection by jury. It is no irregularity to allow the jury to have a view of premises after the judge has summed up the case. Regina v. Martin and TFfiift (C. C. Res.), II, 354. 214. Where it is alleged that the jury have received evidence'in the absence of the j udge and of the prisoners, it is for the court, before which the trial takes place, to investigate the facts, and ascertain whether the alleged irregularity has occurred. lb. 215. Qumre, whether, if such irregularity be so found to have occurred, this court has jurisdiction to order a venire de novo, as for a mistrial. lb. 216. Summing up. Where one of two prisoners jointly indicted is defended by counsel, and the undefended prisoner has addressed the jury, without pre- OEIMINAL LAW. 149 vious claim of his right to sum up by the counsel for the prosecution, the lat- ter may not afterward sum up the case to the jury as against the defended prisoner. Begina v. Hampton and Madden (Cox's U. C), IV, 528. 217. The prisoner's counsel should not, in summing up the case, be restricted to the evidence of the witnesses for the defense, but should be per- mitted to sum up the whole case. Begina v. WainwrigM (Cox's C. C), XIV, 633. 218. Conviction in lesser degree. The prisoner was indicted under 24 & 25 Vict., c. 99, s. 12, for the felony of uttering counterfeit coin after a previous conviction for a like offense. The jury found him guilty of the uttering, but negatived the previous conviction. Held, that he could not be convicted of the misdemeanor of uttering. Begina v. Thomas (C. C. Res.), XI, 357. 219. Prisoners were indicted for feloniously assaulting the prosecutor with intent to rob him. The j ury found them guilty of an assault, but nega- tived the intent charged. Held, that the prisoners could not, upon this indict- ment and finding, be convicted of a commen assault. Begina v. Woodhall (Cox's C. C), IV, 539. 220. Inferior ofiense. Where a man is indicted for rape upon a child under the age of twelve years, under the provisions of the statutes 38 & 39 Vict., c. 94, s. 8, he cannot upon that indictment be found guilty of an assault, inde- cent or otherwise. Begina v. Oatkerall (Cox's C. C), XIII, 455. 221. Upon an indictment under 30 & 31 Vict., c. 116, against a partner or a joint beneficial owner, for stealing, charging the prisoner with being a partner in one set of counts, and in another with being a beneficial owner of the property stolen, held, that if upon {he evidence it appears that he is guilty of embezzlement and not of larceny, he may, upon a proper direction to the jury, be found guilty of embezzlement upon the indictment, by virtue of section 73 of 24 & 35 Vict., c. 96. So, also, if the charge in the indictment is one of embezzlement and not of larceny, he may be found guilty of larceny if the evidence warrants it. Begina v. Budge (Cox's C. C), XI, 372. 222. Variance. The prisoner was indicted under 24 & 25 Vict. , c. 97, for setting fire to a stack of straw. It was proved that he set fire to a quantity of straw on a lory. Held, that he could not properly be convicted. Begina v. Satehwell (C. C. Res.), V, 392. 223. Forfeiture by conviction. A married woman was convicted of felony and transported to Australia for seven years, where she was lost sight of, and nothing had been heard of her since 1843, In 1860, a legacy, to which she was entitled under a will made in 1827, bacame payable, and the husband now nioved for a grant of administration. Held, that the grant could not be made until a notice had been given to the Queen's proctor. Goods of Stevens (Cox's C. C), V, 468. 224. A person entitled to a legacy to be paid to him at twenty-one was, while under that age, convicted of felony in this country, and, after attaining that age, was again convicted of felony in New South Wales. Held, that the legacy would have been forfeited by the colonial conviction, had it not been already forfeited by the conviction in England. Matter of Bateman's Trust CCox's C. C), VI, 312. 150 CRIMINAL LAW. 225. Puuishment for second oflfeuse. By 37 & 38 Vict., c. 47, s. 3, " Where any person shall, on indictment, be convicted of any crime' or oflfeuse punisha- ble with penal servitude, after having been previously convicted of felony, the least sentence of penal servitude that can be awarded in such case shall be- a period of seven years." The prisoner was convicted of a crime punishable with penal servitude, and it was proved that he had been previously convicted of felony, but the previous conviction was not stated in the indictment. Held, that the above section did not apply. Begina v. Willis (0. 0. Res.), II, 339. 226. Sentence — enforcement of. M. and M., convicted at the sessions of the Supreme Criminal Court of Victoria, of manslaughter, committed on board a British ship on the high seas, were sentenced to penal servitude for fifteen years, and were subsequently detained in a public gaol, within the meaning of the Colonial Act, the Statute of Gaols, 1864. On a return to a writ of habeas corpus, to the eflect that M. and M. were detained "for the cause and to the end that they may undergo the sentence aforesaid," the court ordered that the prisoners " be discharged from |heir imprisonment and set at large," on the ground that, by 16 & 17 Vict., c. 99, s. 6, sentence of penal servitude could not be carried into execution in the colony without the intervention of the Secre- tary of State. Held, by the Privy Council that the return was suflBcient, and that in any case the court erred in not remanding the prisoners until it was ;lear that no lawful means of executing the sentence could be found. Begina y (Eq. C), I, 640; affirmed, S. C, II, 313. 24. Description of vendor. An agreement for .the sale of real estate did not disclose the names of the vendors, but it appeared therefrom- that the vendors were a company in possession of the property offered for sale, and that they had carried on operations thereon. Held, on demurrer, that the vendors were sufficiently described to satisfy the Statute of Frauds. Gommins V. Scott (Eq. C), XIII, 576. 25. Upon a sale by auction of real estate in lots, the particulars stated that the sale was "by direction of the proprietor ; but the name of the vendor did not appear. A memorandum indorsed on a copy of the particulars was signed by the purchaser of one of the lots, and by the auctioneer on behalf of the vendor. Held, that the vendor was sufficiently described, and that Ihe memo- randum was sufficient to satisfy the requirements of the Statute of Frauds ;. and specitfc performance of the agreement decreed at the suit of the purchaser. Sale V. Lambert (Eq. C), IX, 661. 29 236 FRAUDS, STATUTE OF. 26. In order to satisfy the requirements of the Statute of Frauds,, the note or memorandum of an agreement for the sale of real estate must contain either the names of the contracting parties, or such a description of them that there cannot be any fair dispute as to their identity. Potter v. Duffield (Eq. C), IX, 664. 27. The term " vendor " is not of itself a sufficient description of one of the contracting parties. lb. 28. Real estate was put up for sale under particulars and conditions of sale which did not disclose the vendor's name, but stated that B. was the auc- tioneer. The purchaser of one of the lota signed a memorandum acknowledg- ing his purchase, and B. signed at the foot of this memorandum another in , these terms : " Confirmed on behalf of the vendor. B." Held, that the memorandum did not sufficiently show who the vendor was ; and a bill for specific performance of the contract for sale, brought against one who was merely solicitor for the vendor, was dismissed. lb. 29. Part performance, effect of. The Statute of Frauds cannot be pleaded to a verbal agreement to allow the occupation of a leasehold house for life on payment merely of ground rent, rates and taxes, if there has been a part per- formance by possession under the agreement, and the agreement has affected the mode of living of the occupying party. Coles v. PUkington (Eq. C), XI, 768. 30. As a defense. A defendant who wishes to rely on the illegality of a transaction as a defense must plead it in distinct terms. Haigh v. Kaye (Chan. App.), II, 350. 31. The Statute of Frauds cannot be used by a defendant to cover a fraudulent act. lb. 32. The plaintiff conveyed an estate to the defendant by a d«ed, in which the conveyance was expressed to be absolute, in.consideration of a sum of money paid by the defendant ; but no purchaae-money actually passed, and the plaintiff' alleged that he conveyed the estate to the defendant as a trustee for him. The defendant, in his answer, admitted that he gave no considera- tion for the estate, but stated that the plaintiff made the conveyance, fearing that an adverse decision would be made against him in a suit then pending in chancery, and that it was understood that the defendant should account to the plaintiff for the rents until he could make arrangements for paying the pur- chase-money, and if no such arrangements could be made, that he should re- convey the estate. The defendant claimed to hold the estate discharged of any trust, and claimed the benefit of the Statute of Frauds. Held, first, that there was no sufficient averment that the transaction was an illegal one, and sec- ondly, that the Statute of Frauds could not be pleaded in answer to the plain- tiff's claim, and that, as the evidence did not establish the existence of any such agreement as was alleged by the defendant, the defendant must reconvey the estate to the plaintiff. lb. ^ See Landlobd and Tenant. FRAUDULENT CONVEYANCES. 1. Transfer by bankrupt Goods comprised in a bill of sale which entitles the holder to take possession upon default in payment after demand, remain. FEAUDULENT cdNVEYANCES. 337 notwithstanding the registration of the bill of sale, until demand is made, in the reputed ownership of the grantor, and the title will pass to his trustee iu bankruptcy. Ex parte Harding (Eq. C), V, 816. 2. Series of bills of sale. In June, 1871, P. assigned furniture and stock-in- trade to S. by an absolute bill of sale, as security for an advance of £30. This bill of sale was not registered, but, before the expiration of the twenty-one days allowed by 17 & 18 Vict., c. 36 for registration, a second bill of sale was substituted for it ; and the same operation was from time to time repeated down to the 15th of July, 1873, P. continuing all the time in possession and dealing with the goods as his own, and the £20 being still a subsisting debt. The last bill of sale (which alone was stamped, and a consideration for which was stated to be a present advance of £30) was duly registered on the 1st of August, 1873. Seld, that the bill of sale so registered was available against the claim of an execution creditor of P. ; that there was a suflBcient considera- tion for it, and that it was not avoided by 13 Eliz., c. 5. Smale v. Burr (Com. PI), IV, 330. 3. A voluntary settlement, whereby the settlor takes the bulk of his prop- erty 6ut of the reach of his creditors, shortly before engaging in trade of a hazardous character, may be set aside in a suit on behalf of creditors who became such after the settlement, though there are no creditors whose debts arose before the date of the settlement, and though when the settlement was made it was doubtful whether the arrangements under which the settlor was to engage in the business would take effect. Mackay v. Douglas (Eq. C), III, 659. 4. Where a voluntary settlement is made on the eve of the settlor engaging in trade, the burden rests upon him of showing that he was in a posi- tion to make it. lb. 5. In order to set aside a voluntary settlement as being void as against creditors, it is not necessary to show that the settlor contemplated becoming actually indebted. It is sufficient if he contemplated a state of things which might result in bankruptcy or insolvency. lb. 6. A debtor is not entitled to set up, as a defense to a suit to set aside a voluntary settlement, a release contained in an inspectorship deed by which he vested all his property in the inspectors, the settlement or the existence of the property comprised in it not having been disclosed at the time the inspector- ship deed was executed. lb. 7. In the absence of actual intent to defeat, delay, or hinder creditors, a voluntary settlement, made by a settlor in embarrassed circumstances, but having property not included in the settlement ample for payment of the debts owing by him at the time of making it, may be supported against cred- itors, although debts due at the date of the settlement may to a considerable amount remain unpaid. Ke7it v. Biley (Eq. C), III, 701. 8. A distribution by a debtor, when in a weak state of mind and body, of the whole of his property among his children, partly in consideration of annui- ties for his life, partly by voluntary settlement, and partly by pecuniary gifts, held void as against creditors under 13 Eliz., c. 5, the court being satisfied, on the evidence, that the children were aware at the time that the creditors' 228 GAMING. GENERAL AVEKAGE. claims would be defeated, though it did not appear that the debtor had any such intention. Cornish v. Clark (Eq. C.)', Ill, 695. See Bankbuptcy. FREIGHT — See Bill of Lading ; Charter-Pabtt; Instjbancb, Mahinb. FRIGHT — See Cbimistai, Law. FUGITIVE FROM JUSTICE— S«e Extradition. FUTURE ESTATE — ^«6 Grant. GAMING. 1. Place, using. The appellant was on a race-course standing on a stool, over which was a large umbrella, similar to a carriage umbrella, capable of covering several persons, the stock being made in joints like that of a sweep's brush, so as to be taken in pieces, and was fastened in the ground with a spike. The umbrella when open was seven or eight feet high. It was a showery day ; but the umbrella was kept up rain or dry. On the umbrella was painted in large letters " G. Bows, Victoria Club, Leeds." There was also a card exhibited, on which were the words, " We pay all bets first past the post.'' The defendant was calling out, offering to make bets ; and he was seen to make several bets, the money being deposited with him, and for which he gave a ticket. KM, that the appellant was using a fixed and ascertained " place " for the purpose of betting with persons resorting thereto, and was properly convicted thereof under 16 & 17 Vict., c. 119. s. 3. Bows v. Fenwick (Com; PI.), IX, 429. 2. The appellant was the occupier of certain inclosed grounds, in which a pigeon-shooting match between two persons for £10 a side, and afterward a foot-race took place, and into which the public were admitted on payment of money. The persons who were admitted . into the grounds made bets with each other both on the pigeon-shooting match and on the foot-race. Held, that the grounds were a " place," and that they were kept and used by the ap- pellant for the purpose of betting within the meaning of the Betting Houses Act (16 & 17 Vict., c. 119), s. 3. Maatwood v. Miller (Q. B.), IX, 374. See Criminal Law. GARNISHMENT. Priority. An ex parte garnishee order on execution, under which a money judgment in favor of the defendant is attached, will be postponed to a lien obtained by such defendant's attorney on such judgment before the final order in the garnishee proceeding. Birchall v. Pugin (Com. PI.), XII. 458. GAS COMPANY— 56C Negligence. GENERAL AVERAGE. Who entitled to. The plaintiff's ship sailed from Melbourne for London, having on board (as is usual with sailing vessels on this voyage) a donkey en- GENEEAL AVERAGE. GIFT. 229 gine, which was equivalent to ten additional men, and without which (or the ten additional men) she would not have been seaworthy. The engine was used for pumping and also for other ship's purposes. The ship had on board a sufficient stock of coals for an ordinary voyage, and was expressly found to be seaworthy. On the 10th of March she encountered bad weather, which continued till the 1st of April, and then moderated. During this time she strained and made much water, and she continued afterward to leak ; the water could only be kept under by pumping, and for this purpose it was neces- sary to use the engine, without which she could" not have been kept afloat. On the 16th of April the stock of coals was reduced to one and a half tons, and the captain, in order to obtain fuel, directed some spare spars and wood, which were part of the ship's stores, to be cut up to burn with the coal ; wood alone would not have sufficed to get up the steam. On the 5th of May the ship obtained some coal from a passing vessel, and on the 16th put into port to ob- tain a further supply. On arriving in the Thames the engine broke down from over-work. The ship was exposed to no serious risk from the water she made while there was sufficient fuel on board to work the engine. Held, by Kelly, C. B., and Bkamwell, B., that the facts showed an imminent peril re- quiring the sacrifice of the spars and wood, and that the plaintiff was there- fore entitled to a general average contribution in respect of them ; but that he was not so entitled in respect of the extra coal or the injury to the donkey engine. By Martin and Clbabbt, BB., that no such emergency had occurred as to entitle the plaintiiF to a general average contribution in respect of any of the above matters. Harrison v. Bank of Australasia (Bxch.), I, 163. See Bill op Lading. GIFT. 1. On conditions ultra vires. Where a gift made under a power is accom- panied by directions and conditions ultra mres, the gift will be valid and the directions void. McDonald v. McDonald (Sc. App.), XIII, 154. 2. Not accepted. W. , the uncle of the plaintiff's wife, was applied to by a friend of the plaintiff to advance £1,000 to defray some expenses connected with the plaintiff's election as member of Parliament. W. declined to make the advance, but said he would give the plaintiff £500 and deduct it from the legacy he intended to leave to his wife. Shortly afterward W. sent the plain- tiff a check for £500. The plaintiff wrote to thank W., saying that he would gladly repay it at an early opportunity, and hoped shortly to be able to do so. A few weeks afterward, as the plaintiff deposed, a conversation took place between him and W ., and it was agreed at the plaintiff's instance, that the plaintiff should pay banker's interest on the sum during W.'s life ; and the plaintiff, for the purpose, as he deposed, of effectuating this agreement, signed and gave to W. a promissory note for £500, with interest at £1 per cent, on the understanding that payment of the principal was not to be enforced, but only payment of interest, during W.'s life. After W's death, his executors sued the plaintiff on the note for the £500. Held, that (although, if there had been a complete gift of the £500, it could not afterward have formed a con- sideration for a promissory note) the executors were entitled to recover ; for that, as the plaintiff had not, before the giving of the promissory note, agreed 230 GIFT. to accept the £500 as a gift, it remained open whether it should be a gift or loan ; and the giving the promissory note was conclusive evidence that the parties agreed upon its being a loan ; and the court could not allow the docu- mentary evidence to be rebutted by the parol evidence given by the plaintiff on his own behalf. Hill v. Wilson (Chan. App.), VII, 44G. 3. When incomplete. Testator, who was the owner of a share in a colliery, on the llth of February, 1865, wrote to the plaintiff, his daughter, as follows : " I have another present to make shortly, one share of Ryhope Colliery * * * and you may now consider that you have this yourself from 2d January to receive dividends upon. I am also giving to Sarah one, the same." On the 17th he attended a meeting of shareholders in the colliery, and signed the following entry in the minute book : " That Mr. N.'s " (his own) " proposition of transferring two of his shares to the parties undernamed be agreed to, viz. : " (the plaintiff and her sister). It was admitted that this signature was not sufficient, according to the regulations of the deed of partnership, to pass the property in the shares. On the 25th of February, he again wrote to the plain- tiff: " I have arranged and made all right with the shares for you and Sarah, and dividends will be sent from 2d January." On the 4th of March, the tes- tator wrote to the plaintiff : " Next meeting (private) we will be enabled to make another dividend, when you and Sarah will be informed." On the 16th of March, he sent the plaintiff a check for the first dividend, with a letter thus: " Herewith I inclose check for £37 10«., which you can receive at the bank * * * first dividend, made this day." On the 18th of March, he again wrote to the plaintiff, as follows : " I have yours in reply to the receipt of dividend — long may you live to enjoy it ; " and in the same letter, after referring to the meeting of the 17th of January, he further said: "Well, when I got in, I openly at once asked the question in the presence of" (four persons whom he named), " I was about to give to my two daughters one share each, and which is the way to do it 1 They were all pleased. It was entered in the minutes of the book." Held, that the above expressions in letters, signature of minute and gift of dividend, did not amount to a declaration by the testator, nor to proof of an intention and determination on his part, that he would hold the shares for the plaintiff; but that the testator, having the desire and intention that she should, from and after the llth of February, 1865, have the shares as her property, failed to fulfill that desire and complete that intention. Heartley V. Nicholson (Eq. C), XI, 816. 4. How perfected. B. borrowed £1,100 from his step-mother, who lived in his house, paying £212 10s. a quarter for board ; and it was agreed that the debt should be paid off by a deduction of £100 from each quarter's payment. Deductions of this amount were made for two quarters, but on the third quarter-day the creditor refused to make any further deduction, and paid the full amount of £312 10«., and continued down to the time of her death (which took place more than four years afterward), to pay to B. the like quarterly sum. B. was appointed sole executor of his step-mother, and proved the will ; and a suit for administration was instituted. Held, that the debt was gone ; first, because the appointment of B. as executor released the debt at law, and any claim in equity was rebutted by evidence of a continuing intention on the part of the testatrix to give ; and, secondly, because the intention of the testa- GIFT. 231 trix to give B. the sum of £900 was completed by nine quarterly payments of £312 10s. each. Strong v. Bird (Eq. C), IX, 827. 5. Placing in bank to credit of donee. A wife being executrix of her father paid the moneys she received into a bank in her own name as sucli executrix. The husband, it was alleged, sometimes paid in money to this account, and the wife paid checks to her husband's creditors. The account remained for six years, when the husband died, and the wife died shortly afterward. Held, that if the money, or any part of it, belonged to the husband, he had shown an intention of making a gift of it to his wife, and it constituted part of her estate at the husband's death. Lloyd v. Pughe (Eq. C), III, 715 ; reversed on the facts. S. C, IV, 775. 6. Transfer of interest. In order to give validity to a declaration of trust of property, it is necessary that" the donor or grantor should have absolutely ' parted with his interest in the property, and have effectually put such interest beyond his own reach. Warriner v. Rogers (Eq. C), VI, 781. 7. An unmarried lady, possessed of large property, being under obliga- tions to the plaintiff, a servant, called him one day into her room and showed him a box, which, having opened it and put a note inside, she locked and handed to him, telling him to take it into his possession, that it would be of ser- vice to him some day, btlt that he must not open it till after her death. She herself kept the key. She afterward made her will, whereby she gave the resi" due of her real and personal estate to the defendant, a stranger in blood. After her death the box was opened and found to contain a paper writing, dated and signed by the testatrix, and addressed to the plaintiflf, to the effect that the contents of the box were a deed of gift to the plaintiff of certain real and personal estate therein specified and described. In the box were also found title deeds relating to an estate, M., not mentioned in the paper writing, and some other papers, but nothing answering a description of a deed of gift. After the testatrix's death there was found by the plaintiff, in an outhouse, to which the testatrix and he alone had access, another paper writing, dated the day after the date of the former paper, and also signed by the testatrix, and addressed to the plaintiff, to the effect that the title deeds of the real prop- erty mentioned in the former paper, were to be found in a particular repository, to be handed over to him " free, and all expenses to be paid out of the bulk, and writings of M." Held, that these papers were of a testamentary character, and did not amount to a valid declaration of trust in favor of the plaintiff. lb. 8. Transfer of stock. Stock which had been acquired by a lady as the sur- vivor of her husband, who had transferred it into their joint names, was transferred by her into the names of herself, her daughter, who had recently married, and her daughter's husband ; and the dividends of the stock were enjoyed by the transferor during her life. The daughter predeceased her mother, and the son-in-law survived them both. Held, that there was no resulting trust, and that the son-in-law was entitled to the fund. Batstoae v . SaZter (Chan. App,), XIV, 714 ; affirming S. G., XI, 826. 9. Mortis causa. The delivery by a donor, in his last illness, of a check on his bankers, was accompanied by a delivery of his banker's pass-book. The check not having been presented until after the donor's death, held, that the gift was not a good donatio mortis causa. Beak v. Beak (Eq. C), II, 390. 233 GIFT. GOVBENMBNT. 10. A testatrix, both before and after sbe made her will, purchased sums of stock in the names of herself and the son of her daughter-in-law. By her will she gave the residue of her estate to her daughter-in-law for life, and after her death to the son and daughter of the daughter-in-law. Held, that, under the circumstances, the sums of stock so purchased were a gift to the son of the daughter-in-law. Fowkes v. Paseoe (Chan. App.), XII, 750. 11. Held, that in such a case the evidence of the son and his wife was admissible, and could not be disregarded as rebutting the presumption of a resulting trust ; and that, coupled with the circumstances under which the stock was purchased, it was sufficient to rebut the presumption. lb. 12. Held, on the facts, that the testatrix had not placed herself in looo parentis to the son of her daughter-in-law or to the other residuary legatee, and that both these facts would have to be proved to make the gift an ademp- tion of the residuary bequest. lb. ' 13. A husband, two years before his death, gave to his wife a railway debenture subsequently converted into railway stock, which remained in his name, and on which the dividends were received by him, but paid to his wife. He gave the certificates to his wife, and they remained in her possession until he required them in order to replace a lost dividend warrant. While on his death-bed he handed the certificates to his wife, saying, " these are yours," and also gave her a deposit note. Held, that the gift of the stock failed as incomplete, and could not be supported as a declaration of trust, the intention to .make an immediate gift being inconsistent_ with a declaration of trust. Moore v. Moore (Eq. C), X, 788. 14. Held, also, that railway stock cannot be the subject of donatio mor- tis causa. lb. 15. Held, also, that the gift of the deposit note was a good donatio mortis causa. lb. See Advancement ; Husband and Wipe ; Will. GOODWILL. Right of vendor to set up nevir business. The vendor of a business and the goodwill thereof may^ in the absence of express stipulation to the con- trary, set up a business of the same kind either in the same neighborhood or elsewhere, and may publicly advertise the fact of his having done so ; but he must not solicit the customers of the old business to cease dealing with the purchaser or to give their custom to himself. He may be restrained from so doing by injunction. Ldbouahere v. Dawson (Eq. C), I, 711. See Landlord and Tenant. GOVERNMENT. Breach of contract by. The remedy against government by petition of right will lie for breach of contract resulting in unliquidated damages. Thomas v. The Queen (Q. B.), XI 134. See Specific Pebpoemancb; Was GEANT. GUAEANTY. 333 GRANT. 1. Of warren. A grant of " warren " may pass the soil ; it may pass nothing but a franchise to be exercised over the soil. The phrase, " a warren of conies," will only pass the franchise. Earl Beauchamp v. Winn (Eng. & Ir. App.), VI, 37. 2. — : — A right of entering within the limits of a warren to kill rabbits may be properly described as a " tenement." lb. 3. The duchy of Cornwall was in the possession both of the soil of a manor and of a warren of conies existing over certain parts of the manor. In March, 1799, the duchy granted a lease to P., in which the subjects granted were thus described : " All that piece or parcel of wbodland situate in B., etc., and all that close called, etc., and all that warren of conies, with all and singular the rights, members and appurtenances whatsoever in B., etc., afore- said ; and that lodge or house thereupon built, etc. ; and also all that warren of conies, with all and singular the rights, members and appurtenances what- soever in R., etc., both of which said warrens of conies are called or known by the name of B. warren, and do extend themselves in and over the wastes or moors of B. , F., S. and A.,'' etc. Held, that these words did not carry the soil, but only a right to the conies, and whatever was fairly incident to, or neces- sary for, the preservation and making profit of them. lb. GUARANTY. 1. Validity. The plaintiff having presented a petition for winding up a company, the defendants signed the following guaranty : " In consideration of your withdrawing the petition you have presented for winding up the com- pany called John King & Co. , Limited, we agree to pay you all the costs you have incurred of and in relation to such petition, and to indemnify you against all costs (if any) you may be liable to pay to the company, or to any other par- ties appearing for or in reference to the petition. We further agree to guar- antee the payment to you, within eighteen months from this date, by the com- pany or the liquidator thereof, of the principal of your debt of £723," In an action on the second btanch of the guaranty, held, that the consideration ap- plied to both promises ; that the consideration was the withdrawal of the then pending petition, and not the forbearing for eighteen months to proceed with any petition to wind up the company ; and that such a consideration was suf- ficient to support the promise. Harris v. Venablea (Exch.), II, 143. 2. Q;u,mre, whether, if the presenting of a second petition had had the effect of preventing the company from paying the debt, the surety would have been discharged ? lb. 3. Illegal preference. A banker holding bills and acceptances as a security for advances made to a customer, took a guartinty from the brother of the cus- tomer that the loss of the bank should not exceed £3,000. This transaction took place after the customer had commenced proceedings for the liquidation of his affairs, and unknown to his other creditors, with a view to prevent the bank from opposing a composition. Held, upon a bill filed by the banker to enforce performance of the agreement, that the arrangement, which would have the effect of giving one creditor a secret advantage over the others, could not be sustained, and the bill was dismisBed with costs. McKewan v. Sander- son (Eq. C), XIII, 611. 30 234 GUAEANTY. 4. Continuing. A father, being desirous of obtaining advances for his son from a bank, gave the son a promissory note for £3,000, and gave the bank an agreement under seal to this effect, that, in consideration of the bank discount- ing the note for £2,000 for his son, certain deeds and documents which the father deposited with the bank sliould remain with the bank as security for the payment of all money due or to become due from the son to the bank on any account whatsoever, and that he would pay the bank upon demand all such money ; and he thereby charged the property comprised in such docu- ments with the repayment thereof. Held, that this agreement was not limited to the £2,000, but was a continuing guaranty for all money already due, or which should become due, from the son to the bank, until the father withdrew it, which, it seems, he might do under certain circumstances, upon the terms of paying all that was due under it at the time of giving notice of withdrawal. Burgess v. Eve (Eq. C), II, 379. S. The plaintiffs were in the habit of holding weekly sales of hides, skins, etc., the course of business being that the goods bought at each sale were paid for in the following week. One Dyson, who had for some time bought skins at these sales, on the 29th of December, 1871, bought to the extent of £34 7«. Od. Having heard that Dyson had executed a bill of sale, the plaintiffs declined to deliver the skins unless the defendants would engage to be responsible for the* price. This being communicated by Dyson to the defendants, the latter on the 1st of January, 1873, telegraphed to the plaintiffs, " We agree to be answerable for the skins," and on the same day sent them a covering letter, in which, after stating that they had had dealings with Dyson for five years, and had never known any thing dishonorable or dishonest in any of his transactions, they wrote, " What you have heard was done to pro- tect him from a dishonest tradesman, and will in no way, we hope, be to the injury of his creditors. Having every confidence in him, he has but to call upon us for a check and have it with pleasure for any account he may have with you ; and when to the contrary, we will write you." The plaintiffs accord- ingly sent Dyson the goods, and continued to deal with him down to the 3d of May, 1873, at which time he was indebted to them ih £92 Is. lOd., which he was unable to pay, the defendants, who were the holders of the bill of sale, having seized and sold all his effects under it. Held, that the defendants' letter of the 1st of January was a continuing guarantee. Nottingham Hide, etc., Co. V. BottrUl (Com. PI.), VII, 236. 6. On a continuing guaranty for the honesty of a servant, if the master discovers that the servant has been guilty of dishonesty in the course of the service, and instead of dismissing the servant chooses to continue him in his employ without the knowledge and consent of the surety, express or implied, he cannot afterward have recourse to the surety to make good any loss which may arise from the dishonesty of the servant during the subsequent service. Phillips V. Foxall (Q. B.), Ill, 259. 7. When determined. A guaranty was determinable by six months' notice. The guarantor died, leaving as his executor the debtor on whose behalf the guaranty was given. The creditors to whom the guaranty was given con- tinued to make advances to the debtor, knowing that there was no personal estate to answer the guaranty. Held, that under the circumstances the creditors were not entitled to the benefit of the guaranty for their advances HABEAS CORPUS. HIGHWAY. 235 subsequent to the death. Harris v. Faweett (Chan. App.), VII, 430 ; affirming S. C, V, 860. 8. Per Mellish, L. J. . The death alone did not determine the guar- anty, especially if the creditors were not aware of it. lb. Bee Frauds, Statute of; Prinoipai, and Sxibety; Public Company. GUAEDIAN AND WARD. 1. Testamentary. A testator cannot by will lawfully appoint any one to be guardian of his illegitimate children. Sleeman v. WUson (Bq. C), I, 538. 2. A testamentary guardian is a trustee of such property as comes to his hands in that character. lb. See Contract ; Parent and Child ; Partnership ; Specific Perform- ance; Will. GUILTY KNOWLEDGE — See Criminal Law. HABEAS CORPUS. 1. Second arrest. One of several coolies who, while being carried from China to Peru in a French ship, had killed the captain and crew and taken the ship back, and had taken refuge at Hong Kong, having been imprisoned with a view to being surrendered to the Chinese government, on the ground of his having feloniously seized the ship at sea and murdered some of the crew, was brought up on a writ of habeas corpus, and discharged by the chief justice of Hong Kong. Thereupon he was again arrested on a warrant for piracy jure gentium. On being brought up again on a writ of habeas eorpu8,\\e was again discharged by the chief j ustice, on the ground that he had been committed a second time for the same offense, contrary to the 6th section of the Habeas Cm'- jnis Act. On appeal it was hdd, by the Judicial Committee, that the iirst order of discharge should be upheld, but that the second order of discharge should be reversed. Attorney-Oeneral v. Ewok-a-Sing (Priv. C), VIII, 143. 2. The 6th section of the Habeas Corpus Act applies only where the second arrest is substantially for the same cause as the first, so that the return of the second writ of habeas cm'pus raises for the court the same question with reference to the validity of the grounds of detention as the first. lb. 3. The chief justice having been of opinion that the ship was a slave ship, and that the coolies were justified in killing the captain and crew for the purpose of obtaining their liberty, the Judicial Committee thought the evi- dence before him did not prove this. lb. See Criminal Law ; Parent and Child. HEAESAT — See Evidence ; Will. HEIR — See Executor, etc. ; Fraud ; Injunction ; Mortoage ; Will. HIGHWAY. 1. Right to deviate. The plaintiff was the occupier of an arable field, across which was a public foot-path, but the plaintiff and his predecessors had the right to plough up the foot-path when ploughing the field. The public, 336 HIGHWAY. HUSBAND AND WIFE. when the way was muddy after being ploughed up, having deviated on to the plaintiff's field, the plaintiff, in order to prevent them from straying from the line of the foot-path, placed hurdles on the sides of it, some of which were thrown down by the defendant. Held, that the foot-path having been dedi- cated to the public, with a reservation of the right to plough it up, on its becoming impassable after being ploughed up, the public had no right, in the absence of evidence of such a prescriptiv.e right, to pass over the adjoining parts of the plaintiff's field ; and that the defendant was liable in an action of trespass. Arnold v. Holbrooke (Q. B.), IV, 236. 2. Permission to lay gas-pipes. An agreement between the plaintiffs, a highway board, and the defendants, a gas company, that if the plaintiffs would give the defendants a license to open a highway in their jurisdiction for the purpose of laying gas-pipes, the defendants should make good the surface of the road, and pay to the plaintiffs 1«. per yard of the highway so broken up. Held valid ; for that the agreement of the plaintiffs to allow the defendants to interfere with the surface of the road was a good consideration, and the con- tract was not illegal and did not necessarily contemplate the creation of a nuisance by the defendants. Edgeware Highway Board v. Harrow Oas Go. (Q. B.), XI, 164. 3. WiUfiil obstruction. By the Highway Act, 1835 (5 & 6 Wm. 4, c. 50), s. 72, if any person shall " willfully obstruct the passage of any footway," he is made liable to a penalty of 40s. The respondent was summoned under s. 72, for obstructing a way. Evidence was given that trees and underwood on his land had grown over and across the way, so as to be an obstruction to the free pass- age along it. Held (Cockbtjbn, C. J., dissenting), that the respondent, in merely suffering the trees to grow so as to be an obstruction, did not " willfully obstruct " the way within s. 72. Walker v. Homer (Q. B. Div.), XV, 146. &« Criminal Law; Ne0ligence; Nuisance; Railway Comfant. HOMICIDE — See Criminal Law. HOTCHPOT — Se« Legacy; Will. HOUSE— /S«e Criminal Law. HUSBAND AND WIFE. 1. Husband's right to settlement. Where » wife is entitled to an equity to a settlement, the husband has a right to any interest in possession, except BO far as may be necessary to provide for the wife and children, and, therefore, the fund will be limited, after the death of the wife and in default of children of the wife, to the husband, whether he does or does not survive the wife. WaUh V. Waaon (Chan. App.), VI, 441. 2. Wife's equities. On a marriage in 1862, the parties having no property, no settlement was made ; but the husband, at the wife's request, gave up an appointment producing more than £300 a year. In the same year the wife's mother settled funds producing about £1,000 a year on the wife for life, for her separate use, with remainder to the children, giving the husband £200 a HUSBAND AND WIPE. 237 year for life after the death of his wife ; and shortly afterward she gave the wife a farther income of above £700 a year for her separate use. The wife allowed the husband £100 a year till 1865, when they ceased to live together. In December, 1870, he obtained a decree for restitution of conjugal rights, and a separation deed was thereupon executed, by which she agreed to give him an annuity of £300 a year, and to maintain their two children while with her, his rights as to her unsettled property not being affected. At this time the wife had saved about £6,000 out of her separate income. It appeared that the hus- band was not to blame in the disputes. A sum of £6,000 having devolved upon the wife under the intestacy of a relation, held, that the wife being amply provided for, and the husband not in fault, the court would not. inter- fere with his marital rights, and that the wife was not entitled to any settle- ment out of this sum. Giacometii v. Prodgers (Chan. App.), V, 571 ; affirming S. C, III, 726. 3. how lost. Where a testatrix gave her residue among four, and ap- pointed the husband of one of them sole executor, from whom, on the ac- counts being taken, there was found due a large biClauce which he was unable to pay, held, that the husband being indebted to the estate, and, therefore, disentitled to receive any thing, no equity to a settlement arose in favor of the wife. Knight v. Knight (Eq. C), X, 803. 4. Wife's separate property. Where a married woman, entitled to a legacy charged on real estate which had not been reduced into possession by her husband, obtained a protection order, in consequence of her husband's desertion, under 30 & 21 Vict., c. 83, s. 21, held, that the legacy, on being paid to her after the date of the order, was property which then came to or devolved upon her within sects. 21 and 25 of the act, and that her receipt was a good discharge. Matter of Cowa/rd's Purchase (Eq. C), XIII, 713. 5. Not reduced to possession by husband. A woman having a sum of money deposited with a merchant, and standing in her name, married a man whom she afterward accompanied on a voyage, and both were drowned at the same time. The money was transferred by the merchant into the names of the husband and wife ; but the only direction given to the merchant by the" husband was to keep this property separate from his other moneys. The hus- band by his will, after reciting that his wife had previously to her marriage deposited with the merchant this money, which was standing in her name, disposed of the property as his own. Seld, that the husband had done- no act to reduce the wife's money into possession, and that it would go to her per- sonal representatives. Scrutton v. Pattillo (Eq. C), XII, 803. 6. Savings and increase. The savings of a married woman's separate es- tate, like the income itself, become her separate estate in equity. Duncan v. Cashin (Com. PI.), XIV, 411. 7. Furniture was settled upon a married woman to her separate use, and with money, also her separate property, she from time to time renewed such as wore out. The whole were seized by the sheriff for a debt of her husband. Seld, that as a court of equity would, under the circumstances, have restrained the sheriff from selling the accretions as well as the original furniture, a court of law, upon an interpleader summons, must take notice of the equitable claim of the wife's trustee, and direct the sheriff to withdraw. lb. 238 HUSBAND AND WIFE. 8. Bank deposit. A wife, being executrix of her father, paid money she received ae such into a bank to an account in her own name as executrix. Her husband paid money of his own to this account, and the wife had drawn checks upon the account for payment of debts due by the husband and for payment of household expenses. The husband died. Held, upon the facts of the case, that there was no gift from the husband to the wife, but that the wife was merely the agent of the husband, and that the money remaining in the bank belonged to his estate and not to the wife's. Lloyd v. Pughe (Chan. App.), IV, 775 ; reversing S. C, III, 715. 9. The husband of the plaintiff, being in failiiig health, transferred his banking account from his own name into the joint names of himself and his wife, and directed the bankers to honor checks drawn either by himself or his wife ; and he afterward paid in considerable sums to this account. All checks were afterward drawn by the plaintiff at the direction of her husband, and the proceeds were applied in payment of household and other expenses. The husband never explained to the plaintiff what his intention was in transfer- ring the account, but he was stated by the bank manager to have remarked at the time of the transfer that the balance of the account would belong to the survivor of himself and his wife. After the death of her husband (which took place a few months after the transfer) the plaintiff claimed to be entitled to the balance. Held, that the transfer of the account was not intended to be a provision for the plaintiff, but merely a mode of conveniently managing her husband's affairs ; and consequently that she was not entitled. Marshal v. Crutwell (Eq. C), XIII, 830. 10. Money loaned. A married woman had property, freehold and lease- hold, devised to her separate use, and she being desirous of building and re- pairing some cottages upon it, and her husband wishing to pay off a debt, it was arranged, under the advice of the defendant, a solicitor, that a loan of £550 should be raised by the mortgage of the wife's property and the deposit of two policies of £500 each on the life of the husband and wife respectively. The mortgage was executed by husband and wife, and the husband cove- nanted for the repayment of the loan. The money was to be advanced by in- stallments, and a joint authority, signed by husband and wife, was given to the defendant to receive the first installment of £150 from the mortgagees. He received it and paid the husband's debt by the authority of husband and wife, and he handed a small sum to them, but claimed to retain the balance for a previous debt due from the husband for professional services. Upon this an action was brought by husband and wife to recover the balance. Held, that the action was maintainable, for that the defendant, having full knowl- edge of the objects of the loan, one of which was to appropriate a sum to the separate use of the wife, received the money under the joint authority, as agent of the husband and wife, to carry into effect those objects ; and he could not, against theirwill, treat the transaction as a reduction into possession by the husband, and the defendant, therefore, had no right to set up as an answer to the action that, the money, when in his hands, was money of the husband alone. Jones v. Outhbertson (Q. B.), I, 263 ; affirmed S. C, VII, 100. 11. Conveyance of. A married woman may pass her separate real estate by deed or will as a, feme sole. Pride v. Bubb (Chan. App.), I, 436. HUSBAND AND WIPE. 239 12. By a, deed of separation, made between a husband and a wife and trustees, and duly acknowledged by the wife, it was agreed that the wife should hold all the real and personal estate of the husband apd wife, or either of them in right of the wife, as her separate property, and should have power, by will, to devise or bequeath the same. The husband then purported to con- vey to a trustee all such real and personal estate, to be held upon correspond- ing trusts. Seld, that, though the wife did not expressly convey real estate vested in her, it was the intention of the deed that she should have power to dispose thereof as if she was unmarried, and accordingly that a certain estate of which a trustee was seized in trust for her separate use during her life, with remainder to herself in fee, pa^ed by her will. lb. 13. Post-nuptial contract as to. The legiiim, or right to personal property by descent of the wife, is the property of her husband, and subject to his debts. Learmouth v. Miller (Sc. App.), XIII, 131. 14. A provision without consideration in a post-nuptial contract that the income of thft legitim " should be alimentary, and in nowise %ttachable for debt," heid insufficient to exclude the claim of the husband's creditors, he hav- ing become bankrupt. lb. IS. Per the Lord Chakcellok : A stipulation of this kind in a post- nuptial contract is neither valid nor permissible. lb. 16. Per Lord Hatherlby : A man cannot so deal with his own prop- erty as to make a provision to the detriment and defeating of his creditors. lb. 17. Per Lord O'Hagan: No man is permitted to filch his own income from the hands of his creditors. lb. 18. The Conjugal Rights Act Md inapplicable, as the bankruptcy was anterior. lb. 19. Iiiability of separate property. There is no equity to apply income which a married woman is restrained from anticipating, to make good the consequences of her fraud, where the restraint on anticipation appears from the instrument in respect of which relief is sought. Arnold v. Woodhams (Eq. C), VI, 621.. 20. A married woman, who had, previously to her marriage, settled certain property upon trust for herself during the joint lives of herself and her husband for her separate use, without power of anticipation, and after the death of one of them for the survivor for life, and after trusts for the benefit of the children of the marriage, upon such trusts as she should by deed or will appoint, and (there being no children of the marriage) had by deed irrevocably appointed her reversionary interest in favor of her mother, subsequently, and, as she alleged, under the compulsion of her husband, made another absolute irrevocable appointment of her reversionary interest in favor of her hus- band without noticing the previous appointment. The husband deposited the appointment in his favor to secure a debt to himself. Held, on bill filed by the assignee of the debt and security, that, assuming the second appointment to be a fraud on the part of the wife, inasmuch as it was not based upon any active misrepresentation by her, but disclosed the restraint on anticipation, and only attempted to deal with the reversionary interest, the assignee of the security was not entitled to impound the income during her life, to make good his loss by such fraud. lb. 340 HUSBAND AND WIFE. 21. The separate estate of a married woman is not in general-liable for breaohes of trust or torts committed by her. Wmnford v. Heyl (Eq. C), XIII, 835. 22. liability for debt. The property of a married woman, settled by an ante-nuptial settlement for her separate use for life, with remainder as she should by deed or will appoint, with remainder, in failure of appoint- ment, to her executors or administrators, is an absolute settlement for her sole and separate use, without restraint on anticipation, and vests in equity the entire" cor^MS in her for all purposes. London Cluvrtered Bank of Australia v. Lampriere (Priv. C), V, 137. 23. A., a widow, and the administratrix of her deceased husband (who had died intestate), and entitled to dower as to his real estate, and to a third of his personal estate, being about to contract a second marriage, executed with her intended husband a settlement, whereby she settled the estate she was so possessed of and entitled to, to her sole and separate use, with power of appointment Sy deed or will, and with his consent gave a, letter instructing her bankers to keep separate accounts, and to consider any private overdraft by her on her own account secured by the administrative deposits in their hands. At this time, two sums of £6,000 and £8,000 were in deposit on such account, and subsequently various other sums were, from time to time, paid in by her to the same account, and placed at interest with the bank, who allowed her to overdraw her private account on the strength of the arrange- ment so made. By her will she executed the power of appointment reserved to her by the settlement, and having at the time of her death overdrawn her private account to a considerable amount, ihe bankers claimed, as against the parties interested under the will, to retain the sums so paid into their hands, on account of the administrative account, and especially the sums of £6,000 and £8,000, so deposited with them, in payment of the sums due to them on account of the overdrafts made by her on her private account, and brought a suit in the Supreme Court of the Colony of Victoria to enforce such lien. The Supreme Court dismissed the suit. ^ .ffisM, by the judicial committee, reversing such decision, that, whether or not the bankers had notice of the settlement (which fact was uncertain), the letter of instruction to them by A. was a valid execution of the right reserved by her, as regarded the two sums of £6,000 and £8,000 then in their hands, and, in the absence of fraud, gave the bankers a lien on those sums for any future overdraft that might be made in accord- ance with the terms of such letter. lb. 24. The separate estate of a married woman is liable for debts con- tracted with reference to such estate, and upon its faith and credit. lb. 25. Coercion, vrhen protects wife. The doctrine of coercion, as applicable to a crime committed by a married woman in the presence of her husband, merely raises a disputable presumption of law in her favor, which may be rebutted. Begina v. Torpey (Cox's 0. C), II, 180. 26. A wife who takes an independent part in the commission of a crime when her husband is not present, is not protected by her coverture as acting under coercion from him. Regina v. John (Cox's C. C), XIII, 448. 27. Joint actions by. A married woman had freehold and leasehold prop- erty devised to her separate use, and she, being desirous of building and re- HUSBAND AND WIFE. 241 pairing some cottages upofl part of it, and her husband wanting to pay off a debt, it was arranged, under the advice of the defendant, their solicitor, that a loan of £550 should be raised by the mortgage of the wife's property, and the deposit of two policies of the husband of £500 each on the life of the husband and wife respectively. The mortgage was executed by husband and wife, and the husband covenanted for the repayment of the loan. The money was to be advanced by installments, and a joint authority, signed by husband and wife, was given to the defendant to receive the first installment from the mort- gagees. He received it and paid the husband's debt, but he claimed to retain the balance for a debt due to him from the husband. An action was then brought by the husband and wife for the balance. Held, that on the facts the joint action could be maintained, Jones v. CuiMertson (Q. B.), VII, 100 ; affirming S. C.,I, 263. 28. Separation deed. The court will enforce a legal and proper covenant in a separation deed, although other covenants in the same deed may be illegal. Hamilton v. Hector (Bq. C), II, 393. 29. — ■- By a separation deed, made after the wife had instituted proceed- ings in the divorce court for divorce and the custody of her children, the hus- band covenanted to deliver up forthwith to his wife all her journals, diaries and private correspondence and memoranda ; that the elder two children of the marriage should remain at such schools in England as the husband, or such schools elsewhere as the husband, with the consent of the wife, should direct; that the husband and wife should each have access to them at all reasonable and convenient times, subject to the regulations of the schools ; and that their holidays should be passed by them at such places and in such manner as the trus- tees of the deed should direct; and that the younger two children (who were re- spectively under the age of seven years) should remain in the custody of the wife. S(5W,that the husband was not entitled to make or retain copies of the journals, diaries and memoranda covenanted to be delivered up. Held, also, that having regard to the evidence with respect to the husband's misconduct, the covenants with respect to the holidays of the elder two children were reasonable and proper.and would be enforced by the court, even if the covenants as to the custody of the younger children were not legal, as to which, however, the court expressed no opinion. lb. See GriFT ; Legacy ; Makriagb Sbttlembnt ; Will. IDIOT — See. Criminal Law ; Lunatic. ILLEGAL BESTEAINT — Se« Legacy; Will. ILLEGITIMATE CHILDREN — See Will. IMPROVEMENTS — 5ee Will. INCOME — See Htoband and Wife; Legacy; Will. INDECENT EXPOSURE — ;6fee Criminal Law. 81 243 INDEMNITY. INDEMNITY. 1. Agent, when entitled to. In equity an agent is entitled to be indemnified against liability, as well as loss, incurred on behalf of the principal. Lacey V. Ha; Crowley's Claim (Eq. C), IX, 729. 2. Where a broker has incurred liability for an insolvent principal, he is entitled to prove against the estate of such principal for the full amount of such liability, even though he has himself paid only a portion thereof. lb. 3i Trustee, when entitled to. A trustee who accepts office at the request of a cestui que trust is entitled to be indemnified by that cestui que trust person- ally against all loss which may accrue in the proper execution of the trust. Jervis v. Wolferstan (Bq. C), IX, 674. 4. The executors of a testator had during his life-time, and at his re. quest, become trustees of a deed, whereby certain shares in an unlimited company were settled on a tenant for life, with remainders over. While the company was a going concern, and believed to be perfectly solvent, they dis- tributed the residuary estate. Afterward the company was ordered to be wound up. Large calls were made in respect of the shares, and the remaindermen all disclaimed. Held, that the trustees and executors were entitled to be in- demnified out of the testator's estate, and to call on the residuary legatees to refund. lb. 5. Implied contract for. The plaintiffs were in possession of certain trucks which were claimed by the defendant, and also by the proprietors of the K. P. Colliery. A correspondence took place between the plaintiffs and the de- fendant, in which the plaintiffs asked for an indemnity if they should deliver up the trucks to the defendant. The defendant, without giving any answer as to the indemnity, wrote requiring the plaintiffs to send the trucks back to him, which they thereupon did. The K. P. Colliery proprietors then brought an action against the plaintiffs for conversion of the trucks, and, their claim proving well founded, the plaintiffs were obliged" to pay a sum of money, in settlement of the action, which they sought to recover from the defendant upon a contract of indemnity. Held, that there 'was, under the circumstances of the case, evidence of an implied promise to indemnify. Dugdale v. Lower- ing (Com. PI.), XII, 316. 6. The principle upon which in such cases a contract of indemnity is implied is not confined to cases of principal and agent, or employer and em- ployee, lb. 7. On transfer of stock. The plaintiff, a holder of certain shares in a lim- ited company, transferred them to the defendant, who transferred them to M. The company was ordered to be wound up, and a call of £40 a share was made on the contributories in Class A., being the existing members, anaongst whom M. was placed; these, including M., being unable to pay, the plaintiff and de- fendant were placed upon the list of contributories in Class B., as past mem- bers, under s. 38 of the Companies Act, 1863 ; and the defendant was ordered in March, 1869, to pay a call of £40 per share. The defendant had executed a deed 'of inspectorship under s. 193 of the Bankruptcy Act, 1861, which was duly registered in December, 1867. The liquidator of the company proved for the amount of calls against the defendant's estate, but no part was paid ; and the plaintiff, having paid a sum in compromise of the money remaining due INDEMNITY. INFANT. 343 on the shares, sued the defendant for the amount. Held, that the defendant was liable to indemnify the plaintifiF against calls made after the defendant had transferred his interest to M.; and the claim of the plaintiff not being provable under s. 153 of the Bankruptcy Act, 1861, the inspectorship deed afforded no defense. KeUock v. Enthoven (Q. B.), VIII, 324 ; aflSnuing S. C, VII, 73. 8. The plaintiff sold on the Stock Exchange fifteen shares in a limited company. They were bought by a broker as agent for a firm of Scotch brok- ers, whose names appeared as purchasers in the bought and sold notes. The broker furnished the name of W. K. as transferee, a transfer was executed to W. K., and he was registered as owner. About two years afterward an order was made to wind up the company, and it being found that W. K. was an infant, the plaintiff's name was restored to the register. The plaintiff there- upon filed this bill against the Scotch brokers for indemnity. The brokers showed by their answer that the shares had been purchased along with sev- enty-five others, in consequence of separate instructions from D., J., and S., respectively, to purchase for them respectively thirty shares, and that all the ninety shares had been transferred to W. K., and had not been appropriated between the purchasers. The bill having been amended by making the pur- chasers parties. Bacon, V. C, made a decree against D., J., and S., for them .to indemnify the plaintiff from all liability upon the fifteen shares which he had sold, thus making them jointly and severally liable to the plaintiff's whole demand. Hdd, on appeal by D., that the plaintiff was entitled to indemnity, but that the decree ought to be varied so as to make D., J., and S. only liable severally, each for one-third of the liability on the plaintiffs shares. Brown v. Black (Chan. App.), VII, 489. See Landlokd and Tenant ; Pbincipai, and Agent ; Public Company. INDICTMENT — See Criminal La-w. INFANT. 1. Avoidance of charge by. An infant charged his reveAionary interest in a fund with payment of a sum lent to him upon his promissory note, and executed a statutory declaration stating (untruly) that he was then of full age. After attaining twenty-one he mortgaged his interest in the fund for an amount exceeding what was ultimately available without disclosing the fact 6f the prior charge. Held, that the charge given by the infant during his infancy and incapacity to contract was avoided by the subsequent mortgage executed by. him when of full age and capable of contracting, to a mortgagee without notice. Inman v. Inman (Eq. C), V, 888. 2. Right to maintenance. The court has jurisdiction to charge reversionary property of infants with money required for their maintenance, even where some of the infants for whose benefit the money is raised may not ultimately become entitled in possession to the property charged. A security for this purpose approved, with a provision for restoring the money by means of an insurance against the contingency. Deimtte v. Palin (Eq. C), III, 723. . 3. On an application by an infant for maintenance, the court has juris- 344 INFANT. INJUNCTION. diction, without suit, to charge the expenses of his past maintenance and the costs of the application on the corpus of a freehold estate to which he is entitled in fee. In re Eowarth (Chan. App.), V, 632. 4. Right to possession of land. Where an infant is entitled both at law and in equity to real estate as against another who is in wrongful possession, he is entitled to recover in equity on a bill stating these facts and asking a declaration of title and account, and may join adult remaindermen as co-plaiu- tiffe. Howard v. Barl of Shrewsbury (Eq. C), IX, 603. 5. Ijiability on purchase of stock. Under the rules of the stock exchange, the ultimate purchaser of shares of stock sold through a broker who is a member of that body must be a person able and willing to purchase, and if the purchasing broker hands in the name of one who has no legal capacity to accept the shares, because of infancy or other disability, he is personally liable to indemnify the seller against calls made on account of such shares in case of the default of the purchaser. NickalU v. Merry (H. of L.), XIII, 55 ; affirm- ing S. C, III, 600. 6. Sale of land on execution. A plaintiff, who had recovered judgment with damages in an action in tort against an infant, sued out an elegit against the infant's land on the judgment. The infant's only interest in land was a remainder in fee expectant on the death of a tenant for life, which produced no present income to the infant. The sheriff returned that the infant was seized of the reversion of the land in fee simple, and that it was of the annual value of £134, and that he had delivered the premises to the creditor. The creditor then presented » petition under 37 & 38 Vict., c. 113, s. 4, for a sale of the infant's interest in the land. Held, first, that the sheriff had no power to seize an estate in remainder belonging to an infant, and, therefore, the judgment creditor had acquired no charge on the infant's interest. In re South (Chan. App.), VIII, 9l4. 7. Secondly, that the sheriff having erroneously returned that the infant was seized of a reversion producing a present income, a petition for sale of the infant's interest, which was a bare remainder, was inconsistent with the return and could not be supported. lb. 8. Laches. An infant of tender years can be guilty of no letches, and cannot be answerable for the negligence of his next friend. Where such next friend grossly and inexcusably neglects his duty in an action, the infant may be allowed to file a bill of review, without showing that knowledge of the facts relied on could not have been previously obtained by due diligence. Hoghton V. Fiddey (Eq. 0.), XI, 541. See Parent and Child ; Principal and Agent. INJUNCTION. 1. To restrain action at law. A plaintiff in equity filed his bill stating that a policy had become void at law, and claiming to have it treated as valid in equity. After bill dismissed the same plaintiff sued at law on the policy. Held, that a bill would lie to restrain the action, and injunction granted accord- ingly. Tredegar V. TfindMS (Eq. C), XIII, 538. 2. A bill having been filed by an assurance company for the cancellation INJUNCTION. 345 of a life policy as having been obtained by concealment and misrepresentation, a motion was made to restrain an action at law upon the policy, which had been commenced Immediately after the filing of the bill. Held, that although the Court of Chancery had complete jurisdiction in such a case, yet the court of law was the most suitable tribunal for dealing with disputed facts respecting a policy of assurance ; and the motion for an inj unction was refused. Hoare V. Bremridge (Chan. App.), IV, 739. 3. When proceedings are commenced at law and in equity respecting the same matter, if the nature of the claim of the plaintiff at law is such that he could only enforce it at law, the court of equity will be very reluctant, on an interlocutory application, to withdraw the case from the jurisdiction of . the court of law. lb. 4. Action in chancery. Where some of the defendants In a chancery suit, commenced by legatees of a deceased partner of such defendants to wind up' the affairs of the partnership and obtain payment to his estate of the capital due him, become bankrupt after the commencement of the suit, and their trustee in liquidation is made defendant, the Bankruptcy Court will not enjoin the action as against him, so long, as one of the defendant partners remains solvent. Ex parte Gordon (Chan. App.), VI, 484. 5. Advertising rival work. The plaintiffs had purchased the copyright of and the right to use the name of the defendant in the publication of a work called " Beeton's Christmas Annual," and the defendant agreed to give his whole time to the service of the plaintiffs, and not to engage in any other busi- ness. Held, that the defendant must be restrained from advertising a rival work. Ward v. Beeton (Bq. C), XI, 793. 6. Breach of contract. The court will not interfere by injunction to re- strain the breach of a contract for the sale and delivery of chattels which it could not specifically perform. Fothergill v. Rowland (Eq. C), VII, 725. 7. Accordingly, where the lessee of a colliery contracted to raise and deliver to the plaintiffs all the get of coals in the colliery at a fixed price for five years, and subsequently agreed for the sale of the colliery to other par- ties, held, on demurrer, that the court had no jurisdiction to grant an injunc- tion to restrain the breach of contract. lb. 8. An actor who enters into a contract to perform for a certain period at a particttlar theatre may be restrained by injunction from performing at any other theatre during the pendency of his engagement, notwithstanding that the contract contains no negative clause restricting the actor from per- forming elsewhere. Mon1,ague v. Flockton (Eq. C), VI, 704. 9. Breach of bond. The plaintiff, a surgeon, engaged the defendant (who was not qualified to practice, but was studying with a view to pass the neces- sary examination) to assist him in his practice, the engagement being termin- able at the will of either party. Subsequently the defendant, previously to going up to pass his examination, executed, at the request of the plaintiff, a bond, which was conditioned to be void if the defendant should not practice within certain limits, but which contained no express agreement on the part of the plaintiff to continue the defendant's employment. The defendant re- mained in the plaintiff's employment for about three months afterward, and was then dismissed. He subsequently commenced practicing within the pre- 246 INJUNCTION. scribed limits, and a suit was instituted to restrain liim from so doing. Held, tbat an agreement by the plaintiff to continue the defendant's employment on the old terms could be inferred ; that there was consideration to support the bond, and that the plaintiff was entitled to an injunction. Gravely v. Barnard (Eq. C), X, 833. 10. Held, also, that the point was one that ought to be decided on mo- tion, without waiting for the hearing. lb. 11. Cop3rright, infringement ot. An injunction will not be granted to restrain the publication of an illustrated or descriptive advertisement of arti- cles which the defendant and all other persons have a right to sell ; even . though the defendant may have copied illustrations or printed matter not original from a similar work of plaintiffs. Uobbett v. Woodward (Eq. C), III, 795. 12. An injunction will be granted to restrain the publication of a work with such a title, or in such a form as to binding or general appearance, as to be a colorable imitation of one previously published by the plaintiff. Mack v. Fetter (Eq. C), III, 809. 13. Criminal proceedings. Unless the cases raised and the objects sought are identical, the court will not prevent a plaintiff in this court from proceed- ing in a criminal court against the defendants to the suit in this court. Saidl V. Browne (Chan. App.), XI, 434. 14. Deposit of earth. An injunction may be granted at the instance of a municipal corporation in possession of sea shore, to restrain a trespasser from depositing earth upon such shore and thus cheating a public nuisance. Gor- poration of Hastings v. Ivall (Eq. C), XIII, 501. 15. Diversion of water. When riparian proprietors on the upper part of a stream unreasonably divert the waters thereof for extraordinary purposes, to the injury of the riparian proprietors lower down the stream, and propose to continue such diversion, an injunction may properly be granted to restrain them from so doing. Swindon Water-works Co. v. Wilts & Berks Ganal Go. (H. of L.), XIV, 86 ; modifying S. C, YK., 546. 16. Flooding mines. A bill averred that a mine which the defendants threatened to work could not be worked without letting in a river and flood- ing defendant's mine, and through that the plaintiff's mine, and prayed an injunction. Demurrer overruled. Orompton v. Lea (Eq. C), XI, 719. 17. Inequitable use of official power. Although the court will not interfere with the powers and duties of directors in their management of the internal affairs of a company, directors will be restrained from fixing a particular date for holding the annual general meeting of the company for the purpose of preventing shareholders from exercising their voting powers. ■ Gannon v. Trask (Eq. C), XV, 539. 18. Laying water-pipes under highway. Where water-pipes had, without the consent of the owner of the soil, been laid in the soil of a highway, an injunction to restrain the continuance of the pipes was granted; the owner of the soil not being left to his remedy at law, and not being required to estab- lish his right at law. Ooodson v. Richardson (Chan. App.), VIII, 833. INJUNCTION. 247 19. The facta that the soil under the highway was of no value to the owner, and that his motive for applying to the court was not connected with the enjoyment of his land, were held not to be reasons against the granting of the injunction. lb. 20. liibel. The Court of Chancery has no jurisdiction to restrain the pub- lication of a libel as such, even if it is injurious to property. Prudential Insurance Co. v. Knott (Chan. App.), XI, 498. 21. Iiight, obstruction o£ The extent of the right of an owner of aiioient lights is to prevent his neighbor from building so as to obstruct the access of sufficient light and air to such an extent as to render the house substantially less comfortable and enjoyable. Oity of London Brewery Co. v. Tennant (Chan. App.), VIII, 827. 22. The court can give damages upon an application for a mandatory injunction, even though a sufficient case for such injunction is not made out. lb. 23. To obtain such an injunction for the obstruction of air would require a very different case from one for an obstruction of light, and evidence, simply that there is a material diminution of light and air, \A11 not sustain such an injunction as to light. lb. 24. There is no difference in the right of an owner of land to the ordinary easement of light, whether it is acquired by twenty years' user or by grant, from the owner of the servient tenement ; and if the grant is accompanied by a covenant for quiet eujoytnent of the premises, such covenant does not enlarge the right of the covenantee so as to entitle him to an inj unction in equity to restrain an obstruction, where the damage is not sufficient to enable him to maintain an action at law. Leech v. Schweder (Chan. App.), IX, 559. 25. But it is otherwise where the right to light claimed is not the ordinary ■ easement, but a special right created by the covenant ; in which case a court of equity will grant an injunction without regard to the amount of damage. lb. 26. Where the court was not satisfied from the evidence, whether the wall proposed to be built by the defendant would or not be a material obstruction to the plaintiffs' lights, the court directed a temporary screen to be erected to the height of the proposed wall, and appointed a surveyor to report on the effect. lb. 27. Where the owner of a building having ancient lights enlarges or adds to the number of windows, he does not thereby preclude himself from obtaining an injunction to restrain an obstruction of the ancient lights. Aynsley v. Glover (Eq. C), XI, 531. ' 28. In considering the amount of injury caused to a plaintiff by the obstruction of ancient lights the court will have regard, not merely to the present, but also to the possible future use of the property. lb. 29. A court of equity will-give relief against obstruction of ancient lights by way of injunction, in cases where substantial damages, as distinguished from nominal or small damages, would be given at law. lb. 30. An interlocutory injunction should be given where the obstruction erected by the defendant, if allowed to be completed, would be of such value, as compared with the building of the plaintiff, that the court would not, as of course, order it to be torn Jown. lb. 248 INJUNCTION. 31. Where the damages to the plaintiff would be slight, the court may properly exercise its discretionary power to give damages instead of an- in- junction, lb. 32. In a suit to restraid the defendant from building so as to obstruct the plaintiffs ancient lights, it was proved that, for a period of more than twenty years, extending to within a very short time before the bill was filed, there had been unity of possession of the properties of the plaintiff and the defendant, but there was no evidence of there ever having been any unity of title ; and it was proved that before the unity of possession commenced the access of light to the windows had been enjoyed as far back as living memory went. Held, that the plaintiff had established his title to the access of light, by proof of enjoyment from time immemorial, independently of the statute 3 & 3 Will. 4, c. 71 ; for that the statute does not take away any of the modes ' of claiming easements which existed before its passing. Aynaley v. Cflover (Chan. App.), XII, 736; affirming S. C, XI, 531. 33. Held, also, that the fact that some of the windows had been con- siderably enlarged did not take away the right to an injunction ; and that the plaintiff ought not to be put upon the terms of restoring the windows to their former size. lb. 34. Where a building was being erected in a somewhat narrow street in the city of London, and had already reached a height which would subtend an angle of 45° at the foot of the ancient lights of the plaintiff's houses on the opposite side of the street, Iield, that the plaintiff was entitled to an in- junction restraining the raising the new building to a greater height. Haeketi V. Baiss (Eq. C), XV, 459. 35. On a bill for injunction to restrain the completion and continuance of a building seriously obstructing ancient lights, it appeared that the build- ing was almost completed before bill filed ; that the plaintiff had, before the commencement of the works, information that some building was proposed, and that she was abroad during the actual building, and had done nothing amounting to acquiescence. .HeZ<2, that a mandatory inj unction could not be granted ; and an inquiry as to damages was directed, though not prayed by the bill. Stanley V. Shrewsbury (E,y the lessor, alleging that the defendants, after having for some time worked the said three mines, had ceased working the T. mine, and also that they were working the C. mine in advance of the B. mine, and praying injunctions accordingly, Tield, that) under the terms of the covenant, the defendants were entitled to work any of the mines without working all, or all that they had commenced to work ; that, according to the evidence before the court, it was the common practice in the district to work a lower seam of coal before working a higher; that there was no ground for saying that the defendants were committing a breach of the covenant ; and the bill was dis- missed with costs. Lord AUnger v. AsMon (Eq. C), IX, 585. See Kminent Domain ; Injunction ; Nbgligbncb. MISAPPROPRIATION — See Criminal Law; Pbotoipal akd Surety. MISDEMEANOR — iS«« Criminal Law. MISREPRESENTATIONS — ;iS«e Fraud; Insurance, Marine. MISTAKE. L In respect to paper signed. If one person executes as her will a paper drawn up to be executed by another, supposing it to be one drawn for herself, such paper cannot be treated as her will. In the Goods of Hunt (Prob. & Div.), XIII, 473. 2. Relief against. Where, in the making of an agreement between two parties, there has been a mutual mistake as to their rights, occasioning an in- jury to one of them, the rule of equity is in favor of interposing to grant relief. Earl Beauchamp v. Winn (H. of L.), VI, 37. VI, 87. 3. The Court of Equity will not, if such a ground for relief is clearly established, decline to grant relief merely because, on account of the circum- stances which have intervened since the agreement was made, it may be diflS- cult to restore the parties exactly to their original condition. lb. 4. What is the nature of a mistake and what has been the cause of it will be considered in determining whether relief ought to be granted. The rule ignorantia juris neminem excusat applies where the alleged ignorance is that of a well-known rule of law, but not where it is that of a matter of law arising upon the doubtful construction of a grant. In the latter case it is not decisively a ground for. refusing relief. lb. 5. Acquiescence in what has been done will not be a bar to relief where the party alleged to have acquiesced has acted, or abstained from acting, through being ignorant that he possessed rights which would be available against that which he permitted to be enjoyed. lb. 6. A son, tenant in tail in remainder, shortly after attaining twenty - one, joined with his father, the tenant for life, in re-settling the family estates. The son was influenced to make the re-settlement by the representation of his 328 MONEY HAD AND KECEIVED. MONEY PAID. father thut a portions' charge of £5,000 was not (as in fact it was) a subsisting charge oii the estates, but was a charge to take eflfect only in case the father should so direct, and a release of the supposed power to charge contained in the re-settlement was the principal consideration for its execution. Peld, that, although this misrepresentation was innocently made, the re-settlement must be set aside as founded on mistake. Fane v. Fane (Eq. C), XV, 553. See CoNTBRsioN ; Insurance ; Rbfoemation of Instruments ; Specific Pbbpormancb. MONEY HAD AND EBCEIVED. 1. Received from vendor by agent of purchaser. Where an agent em- ployed to purchase a ship for another, by arrangement with the vendor and without the knowledge ot his principal, paid a higher price than he otherwise need to have done, and received a part of the excess as commission, Tield, that his principal could maintain an action for money had and received against his agent to recover back such sum. Morison v. Thompson (Q. B.), X, 139. 2. On forged indorsement. The drawer of a check payable to order can re- cover the amount thereof from one who receives it from the drawee on a forged indorsement of the name of the payee. The statute 16 & 17 Vict., c. 59, only protects the banker on whom it is drawn. Ogden v. Benas (Com. PI.), X, 383. 3. Paid under duress. Where a railway company imposed unreasonable restrictions upon a particular colliery owner to compel him to pay more than the legal maximum rate for carrying his coal, and he paid several of these sums, which in his action he sought to recover as overcharges, but he paid them under protest, and for the purpose of obtaining possession of his goods ; held, that his payment of them under such circumstances was under duress, and did not disqualify him from recovering them in an action for money had and received. Lancashire, etc., Ry. Co. v. Oidlow (H. of L.), XIII, 40. See Bankruptcy; Patent; Principal and Agent. MONEY PAID, ETC. 1. Consideration failed. The defendants, a limited company, being pos- sessed of a process (for which a patent had been taken out in England, but not for the foreign city of B.) for the utilization of sewage, agreed to sell to the plaintiff for £15,000 the sole and exclusive right to use and exercise the patent in B. The plaintifE was aware that by the law existing at B. no exclusive right to use the process there could be obtained. The directors of the defehd ants' company were not aware that the patent for B. had not been obtained. The object of the plaintifE in buying the exclusive right was that he might form a company for using the process in B., and might induce persons to take shares in the company, under the belief that, if the company bought of the plaintiff the right sold to him by the defendants, the company would be en- titled to the exclusive use of the process in B. The plaintiff sued the defend- ants to recover back his £15,000, on the ground that, as there was no exclusive right to the use of the process in B., the consideration had failed. Held, that no action could be maintained : 1. On the ground that, although the defend- ants ostensibly sold the exclusive right to use the process at B., yet, the plain- MONEY PAID. MOETGAGE. 329 tiff's object being to float a company and induce persons to take shares in it, he had intended to buy the right, whether exclusive or not, and that he had, in fact, obtained that for which lie had paid the £15,000 ; 2. On the ground that the plaintiff, being aware that no exclusive right to use the process in B. could be obtained, had entered into the contract with the defendants in con- templation of a fraud upon the shareholders of the intended company. Beq- bie V. Phosphate Sewage Go. (Q. B.), XIV, 396. 2. Leasehold premises were mortgaged by S., who subsequently mar- ried L. After the death of L. his executors concurred in a sale by the mort- gagee to C, and received the balance of tlie purchase-money after payment of the mortgage debt, interest and expenses, and, in the bona fide belief that L. was legally entitled to the equity of redemption, disposed of such balance as part of his estate. S., the widow of L., afterward filed a bill against C, the purchaser, to recover the property, and obtained a decree against him for the value of the equity of redemption, C. being treated as assignee of the mort- gage. Held, that C. could not recover .back the money paid to the executors, as upon a failure of consideration, but must have recourse to his remedy upon the covenant for title, if any. Clare v. Lamb (Com. PI.), XII, 399. 3. Repairs to bridge. Where a railway company repaired a bridge under their road, which, by the provisions of the statute authorizing its erection, pri- vate parties were bound to repjir, such parties having no notice or means of knowing that the repairs were necessary, held, that they could not recover the money expended for repairs so made. London, etc.. By. Co. v. Flower (C. P. Div.), XV, 343. See Lajsdlord and Tenant ; Pbincipal and Asbnt ; Vendor and Vendee. MORTGAGE. 1. What is. A security in the form of a trust for sale is a mortgage within the meaning of the 38th section of the Statute of Limitations. Locking v. Pa/rker (Chan. App.), IV, 736. 2. Before 1839 L. had demised two estates to P. for long terms of years by way of mortgage. On the 11th of February, 1839, P. made to L. a further advance, and L., by a deed to which P. was a party, but not a conveying party, conveyed the fee in those estates and another estate to C, upon trust for P., his heirs, executors, administrators and assigns, nevertheless upon the further trusts thereinafter declared, which were, to permit L. to continue in posses- sion and receipt of rents till the 11th of August, and if L. should then repay the further' advance, with interest, and the other mortgages charged on the property and thereinafter specified, to reconvey to L., his heirs or assigns ; but in default of payment, then that C, his heirs or assigns, should immedi- ately, or at their or his discretion, enter into possession and sell the estates, and stand possessed of the proceeds on trust, in the first place to pay costs, then the sums due to P., with interest, and a sum due on mortgage to another person, with interest, and to pay the surplus to L., his executors, administra tors or assigns, L. at the same time attorned tenant to P. Default having been made in payment, P. entered into possession in 1833, and thenceforth re- ceived the rents and let the property. Sales were subsequently made of parts of the property, the last being in 1848, and C. conveyed to the purchasers, P. being a party, and it was agreed that all terms should be assigned in trust to 42 330 . MOETGAGB. attend. In 1871 L.'s heir at law filed a bill to have the trusts of the deed of 1829 carried into execution. HelA, that the deed of 1829 did not create a trust of the estate for the benefit of the mortgagor which he could enforce, so as to bring the case within the 3 & 4 Will. 4, s. 27, c. 25, but was a mortgage within the meaning of s. 28 of the same statute. lb. 3. Held, also, thai there was no implied merger of the terms created by P.'s earlier securities, and that those securities remained in force, notwith- standing the deed of 1829. lb. 4. Beld, further, that, although the deed created an express trust in favor of L. of the surplus proceeds of sale after paying incumbrances, no re- lief could be given to the plaintiff on this ground, as it was not alleged, nor was there any thing to lead to the supposition, that there had ever been any such surplus, and, therefore, that the bill must be dismissed with costs, lb. 6. By expectant heir. A man, twenty-six years of age. entitled to a rever- sion of £600, but wholly without present means, applied to a money lender, who advanced him £85 on a mortgage of the reversion for £100, with a pro- vision that if default should be made, in payment of the £100, the £100 should bear interest at 5 per cent per month. Twelve years afterward the reversion fell into possession, and on a bill filed by the personal representative of the mortgagor a decree was made for redemption on payment of the sum borrowed and simple interest at 5 per cent. Beynon v. Oook (Chan. App.), XII, 769. 6. Equitable. A deposit of title deeds, as security for a debt, will, without more, create in equity a charge upon the property; but where it is accom- panied by a written document, the terms of that document must be referred to in order to ascertain the exact nature of the charge. STiaw v. Foster (H. of L.), ll, 1. 7. The plaintiff handed title deeds to his brother to enable the brother to borrow £J00 from H. The brother deposited them at his bankers, with a memorandum of deposit purporting to be executed by the plaintiff, and addressed to them, " In consideration of your lending F. B." (the brother) " £1,000 for seven days from this date 1 deposit," etc. The bankers did not place £1,000 to the credit of the brother, but during the next seven days they allowed him, by checks drawn in the ordinary way, to overdraw his account to an amount somewhat less than £1,000. The plaintiff filed his bill for delivery up of the deeds, alleging the memorandum of deposit to be a forgery, and also alleging that the bank had not lent the brother £1,000 for seven days. Held, that, assuming the memorandum to be genuine, the bankers had no lien on the deeds, for that they had not fulfilled the condition. Burton v. Chray (Chan. App.), VII, 482. 8. What included. A mortgage of a foundry, with the engines, fixtures, machinery, tools, and working plant therein, described the chattels assigned aa being " more particularly enumerated and specified in an inventory of even date herewith, to be signed by the parties hereto, and read and construed as forming part of these presents." The deed contained no mention of stock-in- trade. The inventory, which was signed by the mortgagors on the same day as the deed, extended over twenty-one pages. The first twenty pages con- MOETGAGE. 331 tained a detailed description of tlie engines and other chattels which were mentioned under general heads in the deed. At the bottom o£ page 20 was this clause: " The stock-in-trade consists of bolts, brass work, wrought and cast iron work, brass and other work, both finished and in preparation." And at the top of page 21 were these words : "Also all cast and wrought iron, steel, timber, and all other stock-in-trade in and upon the before-mentioned foundry, workshops and premises." Then came this clause : " The contents of the twenty preceding sheets is a complete and exact inventory of the fix- tures, machinery, utensils, and things in, upon, or about the foundry mort- gaged by ua this day." This was immediately followed by the signatures of the mortgagors. Held, that the stock-in-trade was not included in the mort- gage. Ex parte Jardine; In re McManus (Chan. App.), XII, 743. 9. What secured by. A. gave his acceptance to B. for £18,700, payable (six months after date) on the 5th of February, 1867, and it was discounted by the Bank of C. A. mortgaged a station and also mortgaged the stock upon it to B. to secure the repayment of £18,700, with interest at 13J per cent, on the day above mentioned, and to secure the payment of any bill which the mort- gagee might receive, take, make, or indorse by way of renewal or in substitu- tion for the acceptance, or on account of all or any part of the sum therein mentioned, or on any otlier account incidental thereto. It was also stipulated in the mortgage of the stock, that if default should be made in payment by the mortgagor of the license fees, or rent, charges, fines, penalties and other charges which should become payable in respect of the station or run, or the stock thereon, or in relation thereto, the mortgagee might pay it, and the run, stock, etc., should be chargeable therewith. The bill was renewed from time to time, B. paying the discounts to the bank on A.'s behalf, and debiting A. with the amount in an account current rendered to A., in which he charged A. with interest and mercantile commissions. Held, that, notwithstanding this mode of keeping the accounts, the amount of the advances for discounts was secured by the mortgage. Fenton v. Blackwood (Priv. C), VIII, 132. 10. Held, also, that advances for payment of government rent due and for scab license for sheep might be charged to the mortgage, but that sheep, wasb could not. lb. 11. Priority. A. executed a legal mortgage of property in Yorkshire to B. for £700; at the same time he borrowed £100 from C. and signed a memo- randum agreeing to give C. a second mortgage on the property to secure that amount. A. subsequently executed another mortgage of the property for £500 to D. The first and third mortgages were registered at Wakefield, but not the second. Held, that the third mortgage had priority over the second. Wight's Trusts (Eq. C), VI, 637. 12. A mortgage to trustees will take precedence of a conveyance to a purchaser, made by collusion with one of the trustees without disclosing the existence of such'mortgage ; but in an action by the other trustee he can have only a decree for foreclosure, and not one for the delivery of his deed to be canceled. Heath v. Crealock (Chan. App.), XI, 416. 13. Such a mortgage will also take precedence of a subsequent mort- gage executed after the first has been fraudulently delivered up by one of the trustees to tlie mortgagor ; but the second mortgagees, being iona fide pur- 333 MOETGAGE. chasers, will not be decreed to deliver up tlieir mortgage, in an action by the other trustee, but the ordinary foreclosure decree will be made. Waldy v. Gray (Eq. C), XIII, 759. 14. The solicitor of two mortgagees put up for sale by auction, without any authority, the mortgaged estate. He professed to have bought the estate, and prepared a conveyance which parported to be made by the second mort- gagee under his power of sale. The mortgagees both executed the conveyance, and also signed indorsed receipts for money as paid to them, though no money was in fact paid to them. The solicitor took possession of the estate and con- tinued to pay the interest to the mortgagees, and afterward made an equitable mortgage of the estate, representing it to be his own and unincumbered. As to the first mortgagee, there was evidence that he was deceived by the solici- tor ; as to the second mortgagee, there was evidence that he trusted the solicitor implicitly. There were inconsistencies in the plans upon the different deeds, and the solicitor had attested some of the prior deeds. Held, that, under the circum- stances, the equitable mortgagee had priority over the second mortgagee, and that the inconsistencies in the plans and the attestation by the solicitor did not put the equitable mortgagee on inquiry so as to fix him with constructive notice. Hunter v. Walters (Chan. App.), I, 437. 15. L., the owner of real estate, deposited the title-deeds with his bankers to secure the balance of his account current, and executed a memo- randum whereby he agreed, at their request, to execute any deed or deeds necessary for legally carrying out the security. Afterward, being about to be married, he agreed to settle the property. Two days before the marriage the solicitor of the intended wife, having only then received instructions to prepare articles of settlement, inquired of L. whether he had the title-deeds in his possession unincumbered ; he replied that he had, but that they were at his bankers. The solicitor made no further inquiry, and prepared articles of settlement, which were executed. After the marriage L. conveyed the property to the trustee of the articles upon the trusts therein contained, being for the benefit of the wife and issue of the marriage. A suit was afterward instituted by the bankers for foreclosure ; and the wife claimed to be a pur- chaser for value without notice. Held, that the solicitor had not made suiiicient inquiry, and that the wife must be taken to have had constructive notice of the mortgage, and that the husband, having contracted to exec&te a legal mortgage to his bankers, could not deprive them of priority by convey- ing the property to a party with whom he had entered into a subsequent contract for value, even though such party was a purchaser without notice. Maxfield v. Burton (Bq. C), VII, 642. 16. An equitable deposit with memorandum of charge by a devisee is an alienation, which pro tanto prevents a creditor of the testator from subse- quently obtaining a charge on the estate as assets under 3 & 4 Will. 4, c. 104. British Mut. Investment Go. v. Smart (Chan. App.), XIV, 793. 17. W^here a person seized in trust for himself and another in common in fee retains the entire rents, the debt arising in favor of the co-tenant will not be charged on the trustee's beneficial interest as against a purchaser with- out notice from him. lb. 18 A testator, being seised of a house in trust for himself and H. as MORTGAGE. " 333 tenant in common in fee, made his will, by which he devised all his real estate to his wife in trust to buy herself an annuity, and subject thereto in trust for his two sous equally. The testator had received to his own use the whole of the rents of the house, and died indebted to H. in a considerable sum on account of her share. The two sons deposited the title-deeds of the house with the plaintiff's, accompanied by a memorandum charging their interests in the house with a sum of money advanced by the, plaintiffs, who had no notice of H.'s interest. H. afterward filed a bill against the real and personal representatives of the testator, in which she established her right to one moiety of the house, and obtained a decree charging the amount of rents due to her on thrf testator's moiety of the house. Demurrer to bill by plaintiffs to establish their priority over H. overruled. lb. 19. The owner in fee of a farm deposited deeds of conveyance of the farm dated 1774 by way of security for money then due, writing at the same time a letter which stated that the deeds were the title deeds of the farm, and were to be a security. He afterward deposited the subsequent title deeds of the farm, the earliest being dated 1787, with bankers, by way of security for money due to them ; the title was investigated by the bankers and they had no notice of the prior charge. Held, that the letter created an equitable charge on the farm, and that under the circumstances credit must be taken to have been given by the owner of the prior charge to the statement made by the mortgagor, that the deposited deeds were the whole of the title deeds ; and that the owner of the prior charge had, therefore, not been guilty of negligence so as to deprive herself of her priority. Dixon v. Muekleston (Chan. App.), TV, 831. 20. The non- production, in Ireland, of title deeds to the solicitor in structed to prepare a mortgage upon an estate there, will not of itself be deemed a proof that the solicitor has acted fraudulently, or even negligently, so as to affect the interests of his client, and charge him with notice of a prior unregistered mortgage. The construction to be put upon his conduct does not depend on an inflexible rule of law, but upon the circumstances of the case. Agra Bank v. Barry (H. of L.), IX, 94. 21. Where, therefore, the owner of an estate in Ireland had already created an equitable mortgage upon it by depositing the title deeds with a creditor (which equitable mortgage was not "registered) ; and, afterward, on being asked for them by a solicitor who was about to prepare, for another creditor, a legal mortgage of the same estate, gave an excuse for their non- production, which, under the circumstances, appeared quite satisfactory, and also supplied in his own handwriting a summary statement of their contents ; and the solicitor, in total ignorance of the equitable^ mortgage, and of all that had been previously done, prepared the legal mortgage which was duly regis- tered. Held, that the legal mortgage had priority over the equitable mort- gage, and was not assailable on the ground that the solicitor had improperly acted in preparing it without insisting on the production of the deeds. lb. 22. Priority over trust. Where the trustee of a settlement, by connivance with one to whom he has loaned the trust money on a mortgage which notices the trust, enables the latter to show an apparently clear title in the mortgaged property and to procure a new loan upon a new mortgage thereof, from parties 334 MOETGAGE. MUNICIPAL COEPORATION. having neither knowledge nor the means of knowledge of the trust, the rights of the latter mortgagees will be held prior to those of the defrauded cestuia que trust. Pilcher v. Bawlins (Chan. App.), II, 375. 23. Devisee takes subject to. A testator, who was entitled to an estate subject to a mortgage, devised part of it for the benefit of his widow for life, and the remainder to his residuary devisee, and bequeathed his person^ estate subject to debts, and directed that the deficiency should be charged on his residuary real estate. Held, that no contrary or other intention was shown within the meaning of Locke King's Act, so as to exonerate the widow's life interest from keeping down a proportionate part of the interest on the mort- gage. SackviUe v. &nyth (E'q. C), VII, 734. 24. Mortgagee's right to rent. In July, 1864, L. demised premises to de- fendant for five years at a rent of £55 per annum, payable quarterly. Immedi- ately after the grant of the lease, defendant advanced to L. £170, on account of rent ; and in September, 1865, L. mortgaged the premises to the plaintiff. In May, 1866, B., who claimed under a prior mortgage from L., by C, his attorney, commenced an action of ejectment against defendant to recover possession of the premises, but did not proceed with it ; and on the 1st of November, 1866, the plaintiff's attorney wrote to the defendant : " Mr. C has written to say his clients are no longer entitled to receive your rent. I, therefore, request that you will have the kindness to pay the same here by Monday next." Held, that the prepayment of rent was no bar to plaintiff's claim to the rent accru- ing after defendant had notice that plaintiff'was grantee of the reversion ; and that the above letter, coupled with the circumstances known to defendant (that he was raising money by mortgaging his reversion, and that the plain- tiff's claim, for rent, could hardly be founded upon any other alleged right than one resulting from a grant of the reversion), would warrant a jury in inferring that defendant had notice that plaintiff was such grantee. Gook v. Guerra (Com, PI.), II, 110. 26. Dismissal of bill for redemption, effect of. An equitable mortgage by deposit of title deeds is not foreclosed by the mere dismissal of a bill for re- demption. Marshall v. Shrewsbury (Chan. App.), XII, 719. See Chattel Mortgage ; Fixtures ; Ihoticb. MUNICIPAL CORPORATION. 1. Street improvements. The vestry of a metropolitan parish, having paved a new street, under 18 & 19 Vict., c. 120, s. 105, assessed the London School Board, in respect of a school-house, as being " owners " of one of " the houses forming the street." The school-house did not immediately front the street, but stood back from it some seventy or eighty feet, in a large yard, the whole area being about 29,500 square feet. There was a row of eleven small houses (with gardens at the back of them) between this area and the street ; but the only access to the school was by a private passage which ran along one side of the last house and garden into the school-yard, with gates opening from the street in question ; the width of the passage being twenty feet and the length about sixty-four feet. Held, that the school-house, though not actually one of the houses " forming the street," yet practically formed part of it, within s. 105. London School Board v. St. Mary, Islington (Q. B. Div.), XV, 183. MUNICIPAL COKPORATION. 335 2. Eeld, also, that the school board were " owners " within the defini- tion in s. 250 of 18 and 19 Vict., c. 120. lb. 3. The principle on which the expenses of paving a new street have been apportioned among the adjoining owners by a district board, pursuant to 18 & 19 Vict,, c. 120, s. 105, and 25 and 36 Vict., c. 102, s. 77, cannot be ques- tioned before any tribunal. Neslntt v. Board of Works, etc. (Q. B.), XIV, 287. 4. Dangerous buildings. The 38th section of the Manchester Improvement Act, 30 Vict. , u. 36, enacts that, " if the surveyor of the city or, in his absence, any other duly qualified surveyor, shall certify in writing that there is immi- nent danger from any building, the corporation shall and may, without any presentment, notice, or other formality, cause the same to betaken down either wholly or in part, or to be repaired or secured in such manner as the corpora- tion shall think requisite ;" and by s. 39 the expenses incurred are recoverable from the owner. The city surveyor having certified that there was imminent danger from a building of which the plaintiff was the owner and occupier, the town clerk, assuming to act on behalf of the corporation, issued a direction to the surveyor " to cause the building mentioned in his certificate to be taken down or repaired in su«h manner as he should think requisite." The surveyor thereupon employed a builder to take down and rebuild certain parts of the building, who was paid by the corporation for so doing ; and the corporation afterward recovered the amount from the plaintiff. Held, that the certificate of Ihe surveyor was conclusive, and Could not be questioned in an action to recover back the money so paid, pheetham v. Mayor, etc., of Manchester (Com. PI.), XII, 324. 5. Held, also, that the acts of the surveyor, authenticated by the town clerk, were the acts of the corporation ; or that, at all events, they were ratified and adopted by them so as to justify what was done under the certificate. lb. 6. The certificate and notice referred generally to the "building," No. 95 Market street ; the premises dealt with consisted, besides No. 95 Market street, of other premises adjoining thereto, being No. 2 Palace street, for which the plaintiff was separately rated, but connected therewith by internal- com- munications, and occupied therewith by him as one set of business premises. Held, that the description in the certificate and notice was sufiBcieut to cover both sets of premises. lb. 7. Seal, when necessary. The plaintiffs, a municipal corporation and local board, on the 17th of July caused certain tolls to be put up for letting by auc- tion, under conditions by which the purchaser was immediately, on the fall of the hammer, to pay a month's rent in advance, and to produce two sureties, who were forthwith to sign the conditions and a draft lease. The defendant was the highest bidder at the auction, and was declared the purchaser, and he paid a month's rent in advance and signed an agreement to become lessee, in- dorsed on the conditions ; but he did not then, nor at any subsequent time, produce two sureties, and the plaintiffs ultimately, in pursuance of the condi- tions, determined the contract and sold the tolls at a loss. The contract Was not executed by the plaintiffs under their common seal, nor signed on their behalf by any person authorized under seal to do so. After the sale the plain- tiffs, on the 7th o^ August, by resolution, which was entered' on the minutes under seal, adopted the report of a committee to the effect that the tolls had 336 NAVIGABLE EIVER. NECESSITY. NE EXEAT. been put up to auction, and that the defendant had become the purchaser at a rent of £350, and had paid a deposit of £39 3«. 4(f. Before this, howevel-, the defendant had, on the 4th of August, written to the plaintiffs, saying that he could not carry out his contract, and asking for a return of the sum paid. In an action brought against the defendant to recover damages for the breach of his agreement to take the tolls, held, that the contract was one that required to be made under the plaintiffs' common seal ; that, not having been sealed by the plaintiffs, nor signed by any person authorized under seal by them to do so, the defendant was not bound by it ; that the payment of a month's rent in advance was not such a part performance as would have bound the plain- tiffs in equity specifically to perform their agreement, and that the resolution of the 7th of August (even assuming it to be a ratification, under seal, of the contract) came too late. Mayor of Kidderminster v. Ha/rdvAck (Bxch.),VII, 2Q8. See CoMPEHSATiON ; Highway. MURDEE — See Cbiminal Law. NAVIGABLE RIVER. Obstruction of. An owner of land at the side of a public navigable river has no right to erect on the bed of the river, for the benefit of his own trade, any structure, whether any actual obstruction to the navigation of the river will or will not be thereby occasioned ; and any benefit to his own trade is too remote to be held for the advantage of the public generally, and so to justify the erection. Attorney-General v. Terry (Chan. App.), IX, 533. See Riparian Owner ; Watbr-Coukbb. NAVIGATION — Sfee Ships, etc. NECESSITY. Definition. The word " necessity," when applied to mercantile affairs, does not mean an irresistible, compelling power, but it means the force of circum- stances which determine the course a man ought to take. Thus, when, by the force of circumstances, a man has a duty cast upon him of taking some action for another, and under that obligation adopts the course which, to the judg- ment of a wise and prudent man, is apparently the best for the interest of the persons for whom he acts in the given emergency, it may properly be said that it was necessary to take it. The Australasian Steam Nav. Go. v. Morse (Priv. C), III^ 100. See Insurance, Marine ; Way. NE EXEAT. Writ, when allowed. Upon evidence that a defendant who has been ordered by decree in an administration suit to pay into court, on or before a certain day, the balance admitted by his answer to be due from him to the estate, is about to leave the country, a writ of ne exeat may be obtained against l*m by his co-defendants, the executors, although the day to which the time for payment was extended has not arrived. Sohey v. Sdbey (Eq. C), V, 805. NEGLIGENCE. 337 NEGLIGENCE. 1. Where ground of action. A master cannot maintain an action for inju- ries whlcli cause the immediate death of his servant. Osborn v. Qillett (Exch.), IV, 464. 2. Declaration against def endanjt for inj uries cansed to B., plaintiff's "daughter and servant," by the negligent driving of defendant's servant, by reason whereof she afterward died ; claiming as special damage the loss of E.'s services, and her burial expenses. Plea, that E. was killed on the spot. Held, good. (Beamwbll, B., dissents.) lb. 3. Plea, that the acts complained of amounted to a felonious act, and that the person committing them had not been prosecuted. Held, bad. lb. 4. Adjustment of losses — vrant of care. General average losses having been incurred in the prosecution of a voyage, it became necessary to settle and adjust the proportion of the loss which the ship and cargo had respectively to bear, and in order to do so, the plaintiffs, the owners of cargo, and the ship- owner agreed to refer the matter to the defendant, au average adjuster, and to be bound by his decision. Held, that au action would not lie against the defendant at the suit of the plaintiffs for want of care in the performance of his duties as average adjuster, inasmuch as he was in the nature of au arbitra- tor between the parties, lliarsia Sulphur, etc.. Go. v. Loftus (Com. PI.), IV, 282. 5. Consequential damages. A herd of plaintiff's beasts were being 'driven, at 11 P. M., along an occupation road, to some fields. The road crossed a siding of the defendants' railway on a level, and while the cattle were crossing the siding the defendant's servants negligently sent some trucks down an incline into the siding, which separated the cattle from the- drovers and frightened them, and they rushed away. Six of them were ultimately found at between 3 and 4 A. M., lying dead or dying on another part of the railway ; and it appeared that they had gone along the occupation road up to a garden and orchard about a quarter of a mile from the level crossing, had got into the garden through defect in the fences, and so on to the line. Held, that, as de- fendants had been guilty of negligence which caused the drovers to lose con- trol over the cattle and caused the cattle to become infuriated, it was no answer that if the fence of the garden had not been defective the accident would not have happened ; and that consequently the damages were not too remote. Sneesby v. Lancashire, etc., Ry. Co. (Q. B. Div,), XV, 176 ; affirming S. C.,VIII, 337. 6. Dangerous machinery. B., aged twenty-two, was employed by the de- fendants, the owners of a " factory " within the meaning of 7 Vict., c. 15, to grease the bearings between the fly and spur-wheel of a steam-engine, in their engine-house. In order to do the work, he had to stand on a wall 2 ft. 8 in. thick, in a cavity made for the purpose, into which he crawled through the spokes of the fly-wheel ; the fly-wheel being on his left hand revolving in a wheel-race in the engine-house, and the spur-wheel on his right hand, revolv- ing in another room in the factory. The distance between the spokes of the two wheels was 3 ft. 10 in. There was no fence along the wall edge of the wheel-race, on which B. was placed to do his work, and the fly-wheel, near to which, however, children or young persons were not liable to pass or be em- ployed, was unfenced. At the time of the accident, B. had been at work for 43 338 NEGLIGENCE. five days. On tlie sixtli morning, he was caught by the fly-wheel, whirled into the air and killed. At the trial of an action by his widow and admin* istratrix for pecuniary loss sustained by Ids death, the jury found that he had not been guilty of contributory negligence, either in undertaking the employ- ment, or whilst engaged upon it, and returned a verdict for the plaintifl'. On a rule to set it aside, held, 1st, that the defendants were bound under 7 Vict._ c. 15, s. 31, to fence the place where B. had to stand, it being the edge of a wheel-race not otherwise secured ; and secondly, that the dangerous character of the employment was not so obvious as that he must necessarily be taken to have known it ; or that, even assiiming he did know it, that circumstance alone was not enough to constitute him a " volunteer" in such a sense as to exonerate the defendants from liability for the consequences of their breach of their statutory duty. Semble, that the 7 Vict., c. 15, b. 21, imposed on the defendants an unqualified duty to fence the fly-wheel, whether .children were liable to pass or be employed near it or not. Britton v. Cheat Western Cotton Co. (Exch.), I, 381. 7. Dangerous road. Defendant was surveyor of highways, appointed by the vestry of a parish, at a salary. By a resolution of the committee of man- agement for the highways, appointed by the vestry, it was ordered that about 150 yards of a road should be raised, and the defendant, as surveyor, was directed to carry out the resolution. Defendant contracted with G. to do the labor at Z^d. per yard, the vestry finding stones and materials. G. worked himself, and employed and paid hi^ own men, and the defendant, as surveyor, employed men to cart materials to the ground. Defendant set the work out, and determined the levels, but had nothing to do with the paving himself, except superintending pn behalf of the committee. The work was carried out by raising one-half of the width of the road about a foot, leaving the other half at its old level ; and a considerable length of road was so left with- out light or fencing at night ; and, in consequence of this, the dog-cart of the plaintiff, which he was driving along the road, was upset and he was injured. Defendant had been previously warned of the dangerous condition of the road. The jury found that leaving the road in its then state, without light or warn- ing, was negligence ; but that defendant did not personally interfere in doing the work, or directing the road to be left as it was. • Held, the court having power to draw inferences of fact, that the defendant was liable. Pendlebury v. Oreenhalgh (Q. B. Div.), XV, 171. 8. -— Semble, that s. 56 of 5 & 6 Vict., c. 50 (which imposes a penalty on a surveyor who causes any heap of stones or other matter to be laid on the high- way, and allows it to remain there at night without proper precautious), did not apply to such a case. lb. 9. Defective gas-pipe. The defendants, a gas company, contracted to sup- ply the plaintiff' with a proper service pipe to convey gas from the main out- side to a meter inside his premises. Gas escaped from, the pipe laid down under the contract into the plaintiff's shop. The servant of a. gasfitter employed by the plaintiff' happened to be at work in another room at the time of the escape, and went into the shop upon hearing of it with a view of find- ing out its cause. He was carrying a lighted candle in his hand, and immedi- ately on entering the shop an explosion took place, doing damage to the plaintiflfs stock and premises. On the trial of an action against the defendants NEGLIGENCE. 339 for their breach of contract in not supplying a proper service pipe, the jury found, first, that the escape of gaa was occasioned by a defect in the pipe, and that that defect existed in the pipe when supplied ; and, secondly, that there was negligence on the part of the gasfitter's servant in carrying a lighted candle. Upon these findings, held, that the plaintiff was entitled to recover, and that the defendants were not relieved from liability by the negligent act of the gasfitter's servant. Burrows v. March Oas and Goke Company (Exch.), I, 203. 10. Defective water-pipe. Defendants, a water-works company, under their act laid down one of their mains along and under a turnpike road, made under an act which declared the soil to be in tiie owners of the adjoining land, subject only to the right to use and maintain the road. K. was owner of land on both sides, at a spot where the road was carried across a valley on an embankment, and wanting to connect his land on either side, K. employed plaintiif, at an agreed sum, to make a tunnel under the road. In doing the work, it was dis- covered that there was a leak in the defendants'^ main higher up the road, and on the plaintiff digging out the earth, the water from the leak flowed down upon the work and delayed it, so as to cause pecuniary damage to the plaintiff, for which he brought an action against defendants. Held, that, assuming K. could have maintained an action against defendants for injury to his property (as to which the court gave no opinion), the damage sustained by plaintiff, by reason of his contract with K. becoming less profitable or a losing contract, in consequence of the injury to K.'s property, gave plaintiff no right of action against defend- ants. Cattle V. Stockton Water-works Co. (Q. B.), XIV, 376. 11. The tunnel was formed by digging through half the width of the road, forming the tunnel, and then completing the other half in the same way. Before commencing the work K. obtained the consent of the road surveyor and the trustees. Held, assuming K. could, under the circumstances, have been indicted for the nuisance to the high road, the partial obstruction to the highway did not render the whole proceeding so illegal as to prevent plaintiff, who was engaged in it, from recovering damages for a wrong. lb. 12. The plaintiff occupied, for business purposes, the ground floor and the defendants the second floor of the same house, respectively, as tenants from year to year. There was a water-closet on the defendant's premises to and of which they alone had access and use. After their respective premises had been closed on a Saturday evening, water percolated from the water- closet through- the first floor to the plaintiffs premises and caused damage to his stock-in-trade. The overflow of the water was owing to the valve of the supply pipe to the pan having got out of order and failed to close, and the water pipe being choked with paper. The defects could not be detected with- out examination, and the defendants did not know of them, and were guilty of no actual negligence. Held, that there was no obligation on the defendants , to keep in the water at their peril ; and that they were not liable to the plain tiff for the damage. Boss v. Fedden (Q. B.), Ill, 3S4. 13. Delay in procuring patent. On the 38th of April, 1870, the plaintiffs retained the defendant, a patent agent, to obtain for them letters-patent for ' A new automaton vase or depot for holding coals," and on the 80th a pro- visional specification was filed. Nothing more was done by the defendant until the end of August, when he gave notice of his intention to proceed with 340 NEGLIGENCE. the patent, pursuant to s. 12 of 15 & 16 Vict., c. 83 ; and in October he applied for the fiat of the Attorney-General for sealing the patent. In the meantime, viz., on the loth of June, 1870, one P. had, as the defendant was aware, filed a provisional specification for " Improvements in coal vases," which turned oat to be substantially the same as the plaintiffs' invention, and had on the 10th of September obtained a grant of letters-patent for the same. The Attorney- General rejected the plaintiffs' application, upon the authority of Ex parte Bates (Law Rep., 4 Ch. 577), where, under similar circumstances, the second applicant for provisional protection, in the absence of fraud, was held entitled to have his letters patent sealed, of which decision, though pronounced in May, 1869, the defendant was ignorant. Held, that there was evidence of negligence on the part of the defendant in delaying to proceed with the patent for so long a time, and in not informing himself of that decision, and he was, therefore, properly held liable. Lee v. Walker (Com. PI.), I, 371. 14, Pence insufficient. The plaintiff, a platelayer in the employment of a railway company, was returning from his work along their line upon a trolly propelled by hand, when the defendant's pigs got through the fence of his field, which adjoined the railway, on to the line in front of the trolly ; the trolly ran over the pigs and was upset, and the plaintiff was inj ured. The de- fendant was owner of the adjoining land ; the fence erected by the company under 8 Vict., c. JsO, o. 68, was sufficient against horses, oxen and sheep ; but there was enough space between the lowest rail of the fence and the ground for pigs to crawl through, and the defendant's pigs had in fact (as the jury found) crawled under the fence. There was evidence to show that the defend- ant had been warned on a former occasion of his pigs being on the line, but there was no evidence to show how the pigs got from defendant's farm yard, where they were last seen, into the field adjoining the railway. In an action against the defendant for the injury sustained by the plaintiff, held, first, that the word " cattle " in 8 Vict., c. 20, d. 68, included pigs, and that the fence was, therefore, insufficient. Child v. Hearn (Exch.), IX, 487. 15. Secondly, that assuming there was negligence in the defendant, the plaintiff could not recover, for that he was identified with the company whose line he was using for their purposes, and through whose neglect to erect and maintain a sufficient fence the accident was caused. lb. 16. Flooding mines. The defendants' canal was constructed under an act of Parliament, by which the canal ^as to be open for use by the public on payment of tolls, defendants were authorized to take land compulsorily and construct the canal, doing as little damage as might be, and to do all things necessary for making and preserving and using the canal, making satisfaction for all damages to be sustained by the owners of lands and hereditaments taken or prejudiced by the execution of the powers of the act. Commissioners were appointed who were to determine, from time to time, what sum should . be paid for the purchase of lands, and also to determine what other distinct sum should be paid by defendants as recompense for any damages which might be at any time whatsoever sustained by owners of lands or heredita- ments by reason of the making or maintaining the canal. The minerals under the canal were expressly reserved to the owners, who were to be at liberty, subject to the provisions of the act, to work the j^inerals, provided that no in- jury be done to the navigation. By another clause the owners were not to NEGLIGENCE. 341 work the minerals without giving three months' notice to defendants, who might inspect the mines and might, if they thought proper, prevent the work- ing of the mines, paying to the owners the value. On failure of defendants to inspect the mines, the owners were authorized to work them. The defend- ants having failed to inspect and refused to purchase the plaintiff's mine under the canal, he proceeded to work it in the ordinary manner, but without attempting to support the surface, the defendants at the same time keeping the water in the canal most of the time, and doing what they could to keep it tight by puddling, etc. ; but in consequence of the working of the mine the' strata became dislocated, and the water escaped from the canal into the mine, flooding it. In an action by the mine-owner to recover damages therefor, held, that, the defendants not having been .guilty of any actual negligence, an action of tort could not be maintained, but that the plaintiff's remedy was, under the act, to obtain compensation for his coal. HaHS!^n, J., dissents. Dunn v. Com- pany of Proprietors of the Birmingham Canal (Q. B.), I, 283 ; affirmed S. C, IV, 308. 17. One who, for his own purposes, so manages his land as to collect there, in abnormal quantities, any thing likely to do mischief if it escapes, is, prima facie, answerable for the damage consequent upon its escape. 'Smith V. Fletcher (Exch.), Ill, 433. 18 The defendants' mines adjoined and communicated with the plain- tiff's, and in the surface of the defendants' land were certain hollows and openings, partly caused by and partly made tO' facilitate the defendants' work- ings. Across the surface of their land there ran a watercourse. In Novem- ber, 1871, the banks of the water-course (which were sufficient for all ordinary occasions) burst in consequence of exceptionally heavy rains, and the water escaped into and accumulated in the hollows and openings, where the rains had already caused an unusual amount of water to collect, and thence, by fis- sures and cracks, water passed into the defendants', and so Into the plaintiff's mines. If the land had been in its natural, condition, the water would have spread itself over the surface and hav* been innocuous. The defendants were not guilty of any actual negligence in tlie management of their mines. In an action by the plaintiff to recover the damage he had sustained, held, that the defendants were liable, although they were not guilty of any personal' negli- gence, and although the accident arose from exceptional causes. lb. 19. Gates left open. Where a railway crosses a public Ijighway on the level, and there are (under the 8 Vict., c. 20, s. 47) gates for the protec- tion of " horses, cattle, carts or carriages " passing along the highway, it is the duty of the railway company's servants to keep them closed when any train is approaching. If this duty is not performed, and a passenger along the high- way is, in attempting to cross the line of railway, injured, the leaving of the gates open is, in an action brought by him, evidence of negligence to go to the jury. It is so, even though, with care and Qircumspection, he might hava been able to see at a distance the approach of the train which occasioned the injury. North Eastern By. Co. v. Wanless (H. of L.), IX, 1. 20. Per the Lord Chancellok : The gates of the railway, at a place where it crossed the highway at a level, being open, amounted to a statement and a notice to the public that the line at that time was safe for crossing. lb. 21. Kicking horse. A passenger in an omnibus was injured by a blow from 343 NEGLIGENCE. the hoof of one of the horses, which had kicked through the front panel of the vehicle. There was no evidence on the part of the plaintiff that the horse was a kicker, but it was proved that the panel bore marks of other kicks, and that no precaution had been taken, by the use of a kicking strap or otherwise, against the possible consequences of a horse striking out, and no ' explanation was offered on the part of the defendants. Held, that there was evidence of negligence proper to be submitted to a jury. Simson v. London Gen. Omnibus Co. (Com. PI.), VI, 173. 22. Non-repair of sewer. In the abseiice of negligence on their part, a ves- try or local board is not responsible for any injury resulting to an individual from the disrepair of a sewer. Hammond v. Vestry of St. Pancras (Com. PI.), IX, 409. 23. Sect. 72 of the Metropolis Local Management Act (18 & 19 Vict., u. 120) imposes upon the vestry or local board the duty of properly cleansing the sewers vested in them by the act. Under the premises of the plaintiff was an old drain which, by reason of other houses draining into it, had become a " sewer." This drain having become choked, the soil therefrom flowed into" the cellar of the plaintiff, a publican, and did damage. In an action against the vestry, founded upon a breach of the duty imposed upon them by s. 73, but not charging negligence, the jury found that the existence of the drain was unknown to the defendants ; that its existence might have been known to them by the exercise of reasonable care and inquiry, but that the obstruction of the drain was unknown to the defendants, and could not, by the exercise of reasonable care, have been known to them. Held, that the vestry were not liable for not keeping the sewers cleansed at all events and under all circum- stances, but only where, by the exercise of reasonable care and diligence, they can and ought to know tl|iat they require cleansing, and can keep them cleansed, and that upon these findings the defendants were entitled to the verdict. lb. 24. Non-repair of towing-paths. The defendants were a corporate body, in whom were vested by the Thames Navigation Act, 1866 (29 & 30 Vict., c. 89), certain powers and authorities for the pi'eservatiou and improvement of the stream, bed, and banks of the upper part of the Thames, including all powers and authorities before that act vested in the commissioners appointed for the purposes of the upper navigation of the Thames under earlier statutes. From these statutes it appeared that there were originally towing-paths on the river banks, the owners of which took tolls for the right of passing along them, and that by such statutes the commissioners had extensive powers of supervision and control over the towing-paths and of regulating the toll to be taken. They subsequently acquired by the statutes power to purchase and take lands com- pulsorily, and to execute works for the purposes of the navigation ; and by the act of 28 Geo. 3, c. 51, s. 6, were authorized themselves to take toll for among other things, the towing-paths purchased or hired by them. By 35 Geo. 3, c. 106, ss. 18, 23, they obtained power to execute any works or repairs that they thought needful or proper, "and to pay for them out of the rates and tolls, and also to make and establish a continued horse towing-path throughout the navigation, and to purchase land for that purpose. By the Thames Navi- gation Act, 1866, the defendants were authorized to take tolls and apply their funds to the expenses of the repair of the works vested in, acquired by, or NEGLIGENCE. 343 eonstnicted by tbem under the act, and to the carrying into execution of tlie purposes of that act and of the former acta. In consequence of a part of the towing-path on the upper navigation of the Thames being out of repair and giving way, some horses of the plaintiff which were engaged in towing a barge fell into the river and were drowned. The defendants had, in pursuance of the powers vested in them in 1866, made a parol arrangement with the owner of the soil of the towing-path at the place in question for the use of such towing-path at an annual rent. Some parts of the towing-path along the river had been artificially constructed by and Jjelonged to the defendants, and tjie use of the whole of the remainder had been acquired by them. They were in ther habit of taking an aggregate toll for the use of the whole of the naviga- tion and towing-path at Teddington Lock, which they had done in the present instance. The plaintiff having brought an acti9n against the defendants for negligence in not keeping the towing-path in repair, held (Clbasbt, B., dis- senting^, that even assuming that no obligation was cast upon the defendants by their statutes to repair parts of the towing-path not constructed by or vested in them, so long as they kept the towing-path open and took toll for its use, they were under an obligation to those whom they invited to use it to take reasonable care either to see "that the towing-path was in such a state as not to expose those using it to undue danger, or to give due warning against such danger, and that no distinction could be made in this respect between such parts of the towing-path as were natural and such as were artificial. Winch V. Consenators of Thames (Com. PI.), X, 313; affirming S. C, III, 344. 25. Obstructed sewer. The defendant's servant (in breach of the Police Act, 3 & 3 Vict , c. 47, s. 54) washed a van in a public street, and allowed the waste water to run down the gutter toward a grating leading to the sewer, about twenty-five yards oflF. In consequence of the extreme severity of the weather, the grating was obstructed by ice, and the water flowed over a por- tion of the causeway, which was ill-paved and uneven, and there froze. There was no evidence that the defendant knew of the grating being obstructed. The plaintiff's horse, while being led past the spot, slipped upon the ice and broke its leg. Held, that this was a consequence too remote to be attributed to the wrongful act of the defendant. Sharp v. Powell (Com. PI.), II, 567. 26. Omission of duty. An omission to do something which ought to be done in order to complete performance of a duty imposed upon a public body under an act of Parliament, or the continuing to leave any such duty unper- formed, amounts to " an act done or intended to be done," within the meaning of a clause .requiring a notice of action. Jolliffe v. Wallasey Local Board (Com. PL), Vm, 389. 27. Sect. 139 of the Public Health Act, 1848 (11 & 13 Vict., c. 63), enacts that no writ, etc., shall be sued out against the local board, etc. ," for any thing done or intended to be done under the provisions of this act, until the expiration of one month next after notice in writing shall have been delivered," etc. The Wallasey district was, by order in counsel, brought within the pro- visions of that act, and the Wallasey local board were, by various local acts, empowered to slcquire and work certain ferries between Liverpool and the Cheshire side of the Mersey. By s. 3 of the Wallasey Improvement Act, 1864, it was enacted that " the act. should be executed by the local board, subject to 344 NEGLIGENCE. the powers and provisions of the Public Health Act, 1848, and of the several acts supplemental thereto, and of the Local Government Act, 18^8, and of any other act relating to the public health and from time to time in force within the district of Wallasey ; " by s. 7, it was enacted that " the local board, sub- ject to the provisions in this act and in the acts wholly or partially incor- porated with this act, may make and maintain j in the line or situation and according to the levels defined on the deposited plans and sections, and upon the lands delineated on the said plans and described in the books of reference thereto, the following works, that is to say," among others, " a pier or landing- stage at New Brighton, from a point at or near the east end of V. Road, to- gether with all such jetties, esplanades, landing-places, toll-^atea or bars, and other works and conveniences in connection therewith, as the local board shall from time to time think fit ; " and s. 8 enacted that, " previously to commenc- ing the pier or landing-stage or the works connected therewith, the local board shall deposit at the Admiralty office, plans, sections and working drawings of the said pier dr landing-stage, and works connected therewith, for the approval of the Lord High Admiral," or the commissioners of the Admiralty, " such approval to be signified in writing under the hand of the secretary of the Admiralty, and such pier or landing-stage and works shall be constructed only in accordance with such approval." In supposed pursuance of the act of 1864, the board proceeded to erect and place a pier or landing-stage at New Brighton, the pier consisting of a permanent structure, built of timber and iron, partly on the land and partly upon piles screwed into the foreshore down to low-water mark, and of a floating stage in the river, which rose and fell with the tide, and was con- nected with the pier by a bridge, one end of which was attached to the float- ing stage and the other to the end of the pier. This was done with the con- sent and approval of the Admiralty and Ijhe Mersey conservators. The whole of the permanent structure was within the lines of deviation marked on the deposited plans ; but the floating landing-stage was beyond those limits. The floating landing-stage was kept in position by means of chains stretching from either end to the shore, and by other chains attached to anchors fixed, by per- mission, in the bed of the Mersey. To mark the spot where the anchors lay, buoys composed of bl'ocks of timber were placed ; but these were, at certain times of the tide, drawn under the surface of the water. A steam-tug of the plaintilFs, while lawfully and properly navigating the Mersey, struck upon the stock or arm of one of the anchors, and was damaged. On a special case stated by an arbitrator for the opinion of the court (who were to draw infer- ences of fact), it was found that " the defendants, in doing what they did, acted in the iona fide belief that they were acting under the pbwers given them by their act of 1864, and the acts incorporated therewith ; " that they were not guilty of any negligence in the mode of laying down the mooring anchors ; but that they " were guilty of negligence in not placing a buoy of sufficient size and dimensions over the anchor to resist the current of the ebb and fiow of the tides, so as properly and efficiently to indicate the position of the anchor below." Held, that the board were authorized by the Wallasey Act of 1864, in constructing and placing the pier, landing-stage and anchors where they did ; and that, upon the finding of the arbitrator, they had been guilty of negligence in not sufficiently buoying the anchor so as at all times of the tide to indicate to persons navigating the river the spot where it lay ; NEGLIGENCE. 345 but that they were entitled to a notice of action under iS. 139 of the Public Health Act, 1848 — that provision being brought down and made applicable to the Wallasey Act of 1864, by a. 3 of that act ; and the omission sufficiently to buoy the anchor being " an act done " by them with a bona fide belief that they were exercising the powers conferred upon them by the last-mentioned act. lb. 28. Where a railway company, in executing works authorized by their statutory powers, took insufficient precautions to secure the safety of an adjoining house, the court granted an injunction to restrain the negligent exercise of their powers, and appointed a surveyor to report what was neces- sary to secure the plainliflfs' premises ; and the company having complied withjhe requisitions of the surveyor, the court granted an inquiry as to damages. Biscoe v. Qreat Eastern By. (Jo. (Eq. C), VII, 630. 29. A railway company is bound to exercise the power given to it in derogation of individual rights with moderation and discretion, and not negligently. lb. 30. Overcro-wded car. The plaintiff was a passenger by the defendants' railway. At G. station , the compartment in which the plaintiff was being already full, three extra passengers got in, notwithstanding the plaintiff's remonstrances. At the next station the plaintiff again remonstrated, and there being a large number of -persons on the platform and few porters in at- tendance, the carriage door was open and more attempted to enter the carriage, but were prevented by the plaintiff and the other passengers. After the train had moved on, the carriage door remaining open all along the platform, a porter slammed the door to just as it was entering the tunnel ; and the hand of the plaintiff, in consequence, as he swore, of the inconveniently crowded state of the carriage, was crushed in the hinge. Held, that, though taken singly, these several circumstances might not have been sufficient evi- dence of negligence to charge the defendants, yet, combined, they showed such a careless and improper mode of conducting the business of the com- pany, as to justify the jury in finding them guilty of negligence which was a cause of the accident. Jackson v. Metropolitan My. Oo (Com. Pi.), XI, 244. 31. Paying raised checks. If the guardians of the poor negligently sign orders drawn on their treasurer with such blank spaces in them that the amount can be readily Increased by the insertion of words and figures, and they are so increased by a clerk in their employ, and are paid by the treasurer, as increased, such guardians cannot complain of the payment of the excess nor hold their treasurer responsible for the amount thereof. Guardians of Halifax Union v. Wheelwright (Exch.), XII, 617. ^ 32. Running train into side track. The plaintiff sent a heifer (which was put into a horse-box) by defendants' railway to P. station. On the arrival of the train at the ^tation, there being only one porter available to shunt the horse-box to the siding^ from which alone the heifer could be delivered to the plaintiff, he was allowed, in order to save delay, to assist in shunting the horse-box, and while he was so assisting he was run against and injured by a train which was negligently allowed to come out of the siding. There was evidence from which the jury might find that the plaintiff was assisting in the shunting with the assent of the station-master. Held, that the plaintiff 346 NEGLIGENCE. was not a mere volunteer assisting the defendants' servants, btit was on the defendants' premises with their consent for the purpose of expediting the delivery of liia heifer ; and the defendants were, therefore, liable to him for the negligence of their servants. Wright v. London, etc., By. Co. (Q. B.), XIII, 245. 33. Stopping oar aiiray from platform. On the approach of a train to a station, a porter called out the name of the station, and the train was brought to a standstill. Hearing carriage-doors opening and shutting, and seeing a person alight from the next carriage, the plaintiff (a season-ticket holder accustomed to atop there) stepped out of a carriage, but, the carriage in which he was, having overshot the platform, he fell on to the embankment and was hurt. It was night, and there was no light near the spot, and no cautio^ was given, nor any thing done to intimate that the stoppage was a temporary one only, or that the driver intended to back the train. Held, upon a reservation, in which it was agreed that the court should " be at liberty to draw inferences both as to negligence by the defendants and want of reasonable care of the plaintiff, and upon the facts generally," that there was evidence from which a jury might reasonably find negligence on the part of the company's servants, and no evidence of contributory negligence on the part of the plaintiff. Weller V. London, etc.. By. Co. (Com. PI), VIII, 441. 34. Where a passenger by a railway is invited to alight at a spot where there is no platform, so that the usual means of descent are absent, the duty of the railway company, not to expose the passenger to undue danger, requires them to provide some reasonably fit and safe substitute ; and, in the case of a female passenger, a jury may reasonably find that the company fails in this duty where the only means of aligliting provided are the usual iron step and foot-board, with no attendants to assist the passenger in alighting. Bobsoii V. Northeastern By: Co. (Q. B.), Xtl, 303. 35. Plaintiff, a female, was a passenger by defendants' railway to B., a vary small station ; on the arrival of the train at the station, the engine and part of the carriage in which plaintiff was ridjng were driven past the end of the platform, which is short, and came to a standstill; the door of the plain- tiff's compartment being beyond the end of the platform. Upon the train stopping, plaintiff rose ^nd opened the door, and stepped on to the iron step ; she looked out and saw the station-master, who is the only attendant kept there, taking luggage out of, or putting luggage into, a van. She did not see the guard or any otjier railway servant, and she stood on the step looking for somebody to help until she became afraid of the train moving away ; and, no one then coming, she tried to alight by getting on to the footboard ; she had her back to the carriage, and she had hold of the door with her right hand, and got one foot on to the footboard, sjnd whilst endeavoring to get the other foot on to the footboard she lost her hold of the carriage-door, and slipped, and fell, and was injured. She had a small bag on *er left arm, and an umbrella and two small articles in h^j left hand, but nothing in lier right hand. The judge having nonsuited the plaintiff on the above evidence, with leave to enter a verdict for the plaintiff, held, first, that there was evidence from which a jury might have properly found that the plaintiff was invited, or had reasonable ground for supposing she was invited, to alight by the com- NEGLIGEJSrCE. 347 pany's servants ; and that the defendants had failed in their duty toward the plaintiff, and had not provided a reasonable substitifte for a platform. lb. 36. ffeld, secondly, that the jury might not improperly have found that the expectation of being carried beyond the B. station was reasonably enter- tained by the plaintiff, and that the inconvenience would have been such as not to render it imprudent on her part to expose herself to the danger incurred in alighting ; and that the defendants were, therefore, liable for the injury resulting from the plaintiff's act, which had been caused by their negligent breach of duty. And that the nonsuit was, therefore, wrong, and the verdict ought to be entered for the plaintiff. lb. 37. The plaintiff was a passenger on the defendants" railway from A. to B. While the train was passing through B. station, the company's servants called out the name of the station, and shortly afterward the train stopped. The carriage in which thq plaintiff traveled stopped a little way beyond the platform, and several carriages and the engine, which were in front of that carriage, stopped at some distance from the platf orjn. The plaintiff, who was well acquainted with the station, in alighting from the carriage was thrown down and injured in consequence of the train being backed into the station for the purpose of bringing the carriages alongside the platform. A very short interval elapsed between the time that the train stopped and the time it was backed into the station. Held, that tliere was no evidence of negligence on the part of the company to render them liable to an action. Lewis v. London, etc., By. Go. (Q. B.), VII, 119. 38. Bringing a railway carriage to a standstill at a place at which it is unsafe for a passenger to alight, under circumstances which warrant the pas- senger in believing that it is intended he shall get out, and that he may do so with safety, without any warning of his danger, amounts to negligence on the part of the company, for which, in the absence of contributory negligence on the part of the passenger, an action may be maintained. Cockle v. London & Southeastern By. Co. (Com. PI.), II, 648. 39. The plaintiff was a traveler on the defendants' line of railway by a train which arrived at the station for which the plaintiff was bound at night. The part of the platform at that station at which passengers could alight was of sufficient length for the whole train to have been drawn up alongside of it, but in addition to that part the platform extended some distance, gradually receding from the rails. When the train drew up the body of it was along- side the platform, but the last carriage, in which plaintiff rode, was opposite the receding part of the platform and about four feet from it. The night was very dark, and the place where the last carriage stopped was .not lighted, though the rest of the station was well lighted with gas. There was no ex- press invitation given to the plaintiff by the company's servants to alight, but the train had been brought to a final standstill and did not move on again un- til it started on its onward journey. No warning was given to the plaintiff that the carriage was not close to the platform or that care would be necessary in alighting. The plaintiff opened the carriage door and, stepping out, fell into the space between th^ carriage and the platform, and sustained injuries, for which she brought an action against the company, ffeld, that there was evidence of negligence" on the part of the defendants' servants to go to the jury. lb. 348 NEGLIGENCE. 40. Stranding vessel. The defendants' vessel, owing to the negligence oi their servants, struck on * sand bank, and becoming, from that cause, unman- ageable, was driven by wind and tide upon a sea wall of the plaintiff's, which it damaged. Having regard to the state of the weather and tide, it was im- possible to prevent this, the ship having once struck. Held, that the defend- ants were liable for the damage caused to the wall. Lords and Bailiff 0/ Bomney Mwnh v. Corporation of Trinity House (Bxch.), II, 601. 41. Unfastened door. In an action against the defendants for negligence, it was proved that the plaintiff, being a passenger on defendants' railway, got up from his seat and put his hand on the bar which passed across the window of the carriage, with the intention of looking out to see the lights of the next station, and that the pressure caused the door to fly open, and the plaintiff fell out and was injured. There was no further evidence as to the condition of the door and its fastenings. The j ury having found for the plaintiff, leave be- ing reserved to enter a nonsuit on the ground that there was no evidence of the defendant's liability, held, by the Queen's Bench and Exchequer Chamber, that there was evidence of the negligence of the company, causing the injury, and tliat the verdict ought to stand. Q-ee v. Metropolitan By. Oo. (Q. B.), V, 169. 42. There was in this case no contributory negligence on the part of the plaintiff, he having the right to assume that the company had so securely fastened the door that it would not fly open on a slight pressure. lb. 43 Whether, and how far the question of contributory negligence is open In an appellate court in such cases, gucere f lb. 44. Unsafe grating. A. was injured by the giving way of a grating in a public foot- way, which was used for a coal-shoot and for letting light into the lower part of premises adjoining. These premises were at the time of the ac- cident under lease to B., who covenanted to repair and keep in repair all ex- cept the roofs, main walls and main timbers. At the time of the demise the grating was unsafe, but there was no evidence that C, the landlady, had any knowledge of its unsafe state ; and the jury found that no blame was attribu- table to her for not knowing it. Held, that no action was maintainable against C. Gwinnell v. Earner (Com. PI.), XIV, 493. 46. At the time of the accident A. was not passing along the way, but was standing on the grating to talk with a person at a window above it. Held, that A. was not making an improper use of the grating. lb. 46. The defendant let premises to a tenant under a lease by which the latter covenanted to keep them in repair. Attached to the house was a coal cellar under the footway, with an aperture covered by an iron plate, which was, at the time of the demise, out of repair and dangerous. A passer-by, in consequence, fell into the aperture and was inj ured. Held, that the obligation to repair being by the lease cast upon the tenant, the landlord was not liable for this accident. Pretty v. Bickmore (Com. PI.), VI, 183. 47 Held, also, that the provision in s. 102 of the Metropolis Local Management Act, 1855 (18 & 19 Vict., c. 130), makes no difference in this respect. lb. 48 As the plaintiff was riding along a highway, under which was a NEGLIGENCE. 349 sewer, his horse trod on a grid, or grating, put there to drain the surface- water oif the road into tlie s'ewer. The grid being in a defective state gave way, and the horse's leg was injured. Plaintiff brought an action against the Local Board of Health of the district, who are the surveyors of the highway, by ss. 68 and 117 of 11 & li! Vict., c. 63, and in whom also the sewers are vested under ss. 43 and 45. Held, that, though the defendants might not be liable as surveyors of the highway, they were liable as owners of the sewer, of which the grid formed part, for negligence in not keeping the grid in a proper state. White V. HincUey Local Board (Q. B.), XII, 275. 49. Unsafe truck. The Great Eastern Railway Company have a j unction at Peterborough, at which junction they receive from other lines merchandise in trucks to the extent of more than 20,000 weekly, to be conveyed by them to London. In the course of a journey from Peterborough to London, one ol these foreign trucks, laden with coal, broke' down in consequence of the frac- ture of an axle, and caused the break-van to come into collision with a passen- ger train, whereby the plaintifE (a passengei;) sustained, iiljury. The truck in question belonged to a wagon compjtny, whose duty it was to keep it in repair. The course of business at Peterborough was, that every truck, before coming on to the defendants' line, underwent some kind of examination as to its general fitness to travel. The particular truck, when submitted to such ex- amination, was found to have a defective spring, and a serious crack in one of its main timbers, and it was accordingly taken into a siding, and was detained there four or five days, for the purpose of having a new spring put on. The truck (which had not been unloaded) was then sent on, with a direc- tion chalked on it by a servant of the wagon company, that it should " stop at Peterborough for repairs when empty." U-pon a minute examination of the truck after the accident, it was found that the fore-axle, which was 3^ inches thick, had across it, near the wheel, an old crack an inch and a quarter deep, and this was admitted to have been the sole cause of the break down. There was confiicting evidence as to whether or not, regard being had to the extent of the traffic at the junction, it was possible to have discovered this defect in the axle by any practicable examination at Peterborough ; and the following questions were submitted to the jury : 1. Would the defect in the axle which was the cause of the accident have been discovered or discoverable upon any fit and careful examination of it to which it might have been subjected? 2. Was it the duty of the defendants to examine this axle by scraping off the dirt and minutely looking at it, so minutely as to enable them to see the crack, and so to prevent or remedy the mischief ? 3. If that was not their duty upon the first view of the truck, did it become their duty so to do when, upon having dis- covered the defect [i. «., in the spring and in the .sole of the truck], they ordered it to be repaired, and it remained four or five days upon their premises for the purpose ? The jury answered the first question in the affirmative and the second in the negative ; and to the third question they answered : "It was their duty to require from the wagon company some distinct assurance that it had been thoroughly examined and repaired." Held, that, upon these findings, the plaintiff was entitled to a verdict ; for that, although it might not have been the duty of the defendants themselves to cause the truck to be properly examined and repaired upon its arrival at Peterborough junction, it was some- body's duty to do it, and the defendants were guilty of culpable negligence in 350 NEGLIGENCE. not satisfying themselves that a proper examination had taken place before they allowed the track to proceed. Richardaorl v. Great Eastern By. Go. (Com. PI.), XIII, 343. 50. Want of means of communication. The Regulation of Railways Act, 1868, s. 23, enacts that "every company shall provide and maintain in good working order, in every train worked by it which carries passengers, and travels more than twenty miles without stopping," means of communication between the passengers and the servants of the company in charge of the train. Meld, that the section applies to every passenger train which is in- tended to travel more than twenty miles without stopping. Blamires v. Lan^ cashire, etc.. By. Oo. (Exch.), VII, 367. 51. In an action for personal injuries, brought against a railway com- pany by a passenger in a train which was within the meaning of the act, it appeared that there were no such means of communication as were prescribed by the act. It also appeared that the adoption of such means of communica- tion had been recommended by the Board of Trade, and that they were in fact adopted and used by other railway com'panies, and also by the defendants themselves in other trains. Some evidence was also given that, if such means of commuuication had existed, the accident might have been prevented. Held, that, in determining whether, in the case of a passenger train intended to run more than twenty miles without stopping, the company was guilty of negli- gence in not providing means of communication between the passengers and the company's servants, the provision contained in s. 23 of the Regulation of Railways Act, 1868, was to be taken into account, lb. 62. Qumre, whether this would be so in the case of a train not intended to run twenty miles without stopping. lb. 63. Defenses — contrilnitory negligence. A vessel in tow during a thick fog, knowing that it was dangerous to proceed, did not order the tug to stop, and the vessel in consequence ran aground. Held, in an action by the owners of the tow against the owners of the tug for damages, that the vessel in tow contributed to the accident. Smith v. St. Lawrence Towboat Co. (Priv. C), VIII, 236. 64. The. plaintiffs, colliery owners, had a siding adjoining the defend- ants' line, which was crossed by a bridge, and on to which the defendants \yere in the habit of conveying the plaintiffs' empty trucks from their line, the plaintiffs removing them as they thought fit. The defendants were accus- tomed to bring such empty trucks along their main line at any hour by day or night, and, without notice to the plaintiffs, to shunt such trucks on to the siding and leave them there, to be disposed of by the plaintiffs. One Saturday evening, after working hours, the defendants brought on to the plaintiffs' sid- ing and left there trucks of the plaintiffs, one of which was loaded with a broken truck to such a height that it would not pass under the bridge. More than twenty-four hours afterward, but before work was resumed at the plain- tiffs' works, the defendants, after dark, pushed on to the siding other trucks of the plaintiffs, which pushed the loaded truck up to the bridge, by which means the further progress of the train of trucks was checked. The engine- driver, believing that the obstruction was caused by a break, drew back the engine and gave with it such a push to the train that the loaded truck knocked NEGLIGENCE. 351 down the bridge. In an action for tlie damage so done the jury found that the plaintiffs were guilty of contributory negligence in not removing the loaded truck. Held (Denman, J., dissenting), that there was evidence of con- tributory negligence to go to the jury. Radley v. London & N^. W. Ry. Co. (Exch.), XII, 544; reversing S. C, VIII, 516. 55. Extraordinary flood. Where it is the duty of the zemindar to main- tain the tanlis on his zemindary, which are part of a national system of irriga- tion, recognized by the laws of India as essential to the welfare of the inhabit- ants, and the banks of a tank are washed away by an extraordinary flood, without negligence on his part, held, that the zemindar is not liable , for any damage^ thdt may be occasioned by the overflow of the water. Madras Ry. Co. V. Zemindar of Carvatenagarum (Ind. App.), IX, 389. 66. One who stores away water on his own land, and uses all reason- able care to keep it safely there, is not liable to an action for an escape of the water which injures his neighbor, if the escape be caused by an agent beyond his control, such as a storm, which amounts to vis major, or the act of God, in the sense tljat it is practically, though not physically, impossible to resist it. Jfichols V. Marsland (Exch.), XIV, o.S8. , 57. On the defendant's land were artificial pools containing large quan- tities of water. These pools had been formed by damming up with artificial embankments a natural stream which rose above the defendant's land and flowed through it, and which was allowed to escape from the pools success- ively by weirs into its original course. An extraordinary rainfall caused the stream and the water in the pools to swell so that the artificial embankments were carried away by the pressure, and the water in the pools, being thus sud- denly loosed, rushed down 'the course of the stream and inj ured the plaintiff's adjoining property. The plaintiff having brought an action against the de- fendant for damages, the jury found that there was no negligence in the con- struction or maintenance Of the works, that the rainfall was most excessive and amounted to vis 'major. Held, that the action was not maintainable. lb. 58. Inevitable accident. To taaintain an action for injury to the person, the injurious act must be willful or the result of negligence. Holmes v. Mather (Exch.), XIV. 548. 59. The defendant's horses, while being driven by his servant in the public highway , ran ' away, and became so unmanageable that the servant could not stop them, but could, to some extent, guide them. The defendant, who sat beside his servant, was requested by him not to interfere with the driving, and complied. While unsuccessfully trying to turn a corner safely the servant guided them so that, without his intending it, they knocked down and injured the plaintiff, who was in the highway. The plaintiff, having sued the defendant for negligence and in trespass, the jury found that there was no negligence in any one. Held, that, even assuming the defendant to he as much responsible as his servant, no action was maintainable ; for since the servant had done his best under the circumstances, the act of alleged trespass in giving the horses the direction toward the plaintiff was not a wrongful act. lb. 60. Liability as between two railway companies. The plaintiff desired to send a CO w from D. to S., and took her to the station at D. , belonging to the 352 NEGLIGENCE. G. N. Co., where he booked her for S. by the defendants' railway. He signed a contract, under which it was agreed between him and the G. N. Co. that they should not be responsible for any loss or injury to cattle, in the delivering, if such damage should be occasioned by kicking, plunging or restiveness. The cow was put into a truck belonging to the defendants, and on arriving at S. was brought to a siding by the defendants' yard for the purpose of being un- loaded. A porter in charge of the yard began to unfasten the truck. The plaintiff thereupon warned him not to let the cow out, as she would run at him ; nevertheless he did let her out ; she ran about the yard, and ulti- mately got on to the line and was killed. By an agreement between the de- fendants and the Q. N. Co. it was provided that a complete and full system of interchange of traffic in passengers, goods, parcels, etc., should be established from all parts of one company and beyond its limits to all parts of the other company and beyond its limits, with through ' tickets, through rates, and in- voices and interchange of stock at junctions, the stock of the two companies being treated as one stock. » * * That the two companies should aid and assist each other in every possible way, as if the whole concerns of both com- panies were amalgamated. In an action _ brought against the defendants for the loss of the cow, the court having power to draw inferences, 7teM, first, that the action was rightly bjought, inasmuch as the agreement, if it did not constitute a partnership between the two companies, showed that the G. N. Co. became the agents of the defendants to make the contract for the carriage of the cow. OUl V. MaTichester, etc., By, Go. (Q. B.), V, 187. 61. Secondly, that the condition in the contract did not relieve the defendants from liability for negligence on the part of their servants in deliv- ering the cow. lb. 62. Thirdly, that the inference to be drawn from the facts was that there was negligence on the part of the defendant's porter ; and that they were, therefore, liable to the plaintiff for the loss of the cow. (Mellok, J., dissents.) lb. 63. The N. Company had statutory authority to ruir over a portion of the defendants' line, paying a certain toll to the defendants. The signals at the point of junction between the two lines were under the control of the defendants. Owing to the servants of the N. Company negligently disobey- ing these signals, a train of the N, Company ran into a train of the defend- ants in which the plaintiff was, causing him damage. There was no negli- gence on the part of any of the defendants' servants. In an action for inju- ries sustained, brought by the plaintiff against the defendants, held, that he was not entitled to recover. Wright v. Midland B'y Co. (Exch.), V, 333. 64. The plaintiff, one of the traveling inspectors of the carriage and wag- on department of the L. and N. W. Railway Company, was traveling under a pass from them, in one of their carriages, on a journey from Leeds to Man- chester. Near C. station, and on the line of the defendants, over which tlie L. and N. W. Railway had running powers, the train in which the plaintiff was traveling came into collision with a number of loaded wagons which were being shunted from a siding by the defendants, and he was injured. There was evidence of negligence on the part of the driver of the plaintiff's train in traveling at too great a speed, so as to be unable to stop when he came in NEGLIGENCE. 353 sight of the danger signal, whicli had been hoisted by the defendants. Tlie jury louud that the accident was caused by the joint negligence of the defend- ants and the L. and N. W. Railway Company. Held, that the plaintiff was so far identified with the L. and N. W. Eailway Company that he could not re cover. Armstrong v. Lancashire, etc., By. Co. (Exch.), XII, 508. 65. Semble, that the evidence did not support the finding of the jury with regard to the defendants, but showed that the L. and N. W. Railway were solely responsible for the accident. lb. 66. Question for jury. The defendants' mines adjoined and communicated with the plaintiff's ; and in the surface of the defendants' land were certain hollows and openings, partly caused by and partly made to facilitate the defendants' workings. Across the surface of their laud there ran a water- course, which, in the year 1865, was diverted by them into another channel. In November, 1871, the banks of the water-course (which were sufficient for all ordinary occasions) burst in consequence of exceptionally heavy rains, and the water escaped into and accumulated in the hollows and openings, where the rains had already caused an unusual amount of water to collect, and thence by fissures and cracks passed into the defendants', and so into the plaintiffs, mines. If the land had been in its natural condition, the water would have spread itself over the surface and have been innocuous. The defendants were not guilty of any actual negligence in the management of their mines. At the trial, in the court below, of an action brought by the plaintiff to recover the damage he had sustained, the learned j udge directed a verdict for the plaintiff, h6lding that the case was governed by Metcher v. Bylands, Law Rep., 3 H. L. 330, and that the defendants were absolutely liable ; and rejected evidence offered by the defendants that every reasonable precaution had been taken to guard against ordinary emergencies. Held, that the case was not, beyond all question, so governed ; that the water coming from the natural overflow and that coming from the diversion of the water-course might possibly admit of different consid- erations ; that if the evidence tendered had been received, there might have been questions for the jury, and that, under all the circumstances, there ought to be a new trial. Smith v. Fletcher (Exch.), VIII, 510; reversing S. C. , III, 422. 67. The opinion of the jury at such trial ought to be taken as to whether wliat was done by the defendants was done by them in the ordinary, reasonable, and proper mode of working the mine. lb. 68i B. was in the last carriage of a railway train. Before reaching the station at which he was to alight the train had to pass through a tunnel. In that tunnel there was, first, a heap of hard rubbish lying by the side of the rails, irregular in form and height, then a short sloping piece of ground, then a piece of flat platform, like the main platform, but narrower, and within the tunnel. Beyond these was the main platform itself. The train only partially went up to the main platform, leaving the last two carriages within the tunnel, which had no light within it, and on the occasion in question was filled with steam. The last carriage but one came opposite the narrow platform, the last carriage was opposite the hard rubbish. A passenger in the last carriage but one (who was called as a witness at the trial) heard the name of the station 45 354 NEGLIGENCE. called out in tlie usual way and got out upon the narrow platform. He then heard a groaning, and proceeding farther hack into the tunnel found B. lying on the rubbish with his legs between the wheels of the last carriage, but neither of them had touched him. . B.'s leg was broken, and he had received other injuries, from the effects of all which he died. The witness heard the warning, " Keep your seats," and shortly afterward the train moved on. On these facts the learned judge at the trial held that there was no evidence of negligence to go to the jury, and he directed a nonsuit. Owing to a strong ex- pression of opinion by the jurymen he took their finding (on thq assumption that there ought to be a verdict for the plaintiff) as to the amount of damages. The nonsuit was then entered, with leave to move to enter the verdict for the damages assessed. Held, that the ruling at Nisi Prius could not be sustained ; that the cage ought not to have been withdrawn from the consideration of the jury, for that the evidence-furnished matter on which it was necessary to take the opinion of a jury. Bridges v. Directors of North London Ry. Co. (H. of L.), IX, 165. 69. Qumre, whether calling out the name of a station is an invitation to the passengers, going to that station, to alight there ? It is. a fact which the jury were entitled to consider in determining the question of negligence. lb. 70. A public footway crossed a railway on a level. The plaintiff, while crossing on the footway in the evening, after dark, was knocked down and injured by a train of the defendants on the crossing. He stated in evidence at the trial that he did not see the train until it was close upon him ; he saw no lights on the train and heard no whistling. He stated also that he did not hear any caution or warning given to him by any servant of the company. The driver and fireman of the engine wei'e called on behalf of the company, and stated that there were lamps on the engine and train, which were lighted in due course on the night in question, at the commencement of the journey, and which, if lighted, could be seen for a considerable distance by any one standing at the crossing, A porter in the defendants' employ also stated that he had seen the plaintiff at the crossing "on the night in question, and had called to him not to cross. Held, on a bill of exceptions (CocKBtjiiN, C. J., and Clbasbt, B., dissenting), that there was no evidence of negligence on the part of the defendants to go to the jury. Bllis v. Great Western By. Go. (Com. PI.), X, 293. 71. The defendants' line crossed a public footpath on the level; but the defendants had not erected any gate or stile, as provided by 8 & 9 Vict., c. 20, s. 61. . The plaintiff, a child of four years and a half old, having been sent on an errand, was shortly afterward found lying on the level crossing, a foot having been cut off by a passing train. Held, that there was evidence to go to the jury that the accident was caused by the neglect of the defendants to fence. Williams v. Oreat Western By. Oo. (Com. PI.), IX, 469. 72. Damages. In an action for injuries caused by defendants' negligence, a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages. Bradburn v. Great Western By. Co. (Exch.), XI, 330. 73. A herd of plaintiff's beasts were being driven, at 11 o'clock, p. M., along an occupation road to some fields. The road crossed a siding of the NEGLIGENCE. NEW TKIAL. 355 defendants' railway on a level, and while tlie cattle were crossing the siding the defendants' servants negligently sent some trucks down an incline into the siding, which divided the cattle into two lots, and frightened them, and they rushed away with the drovers after them. The drovers succeeded in recover- ing most of the cattle, but they were unable to recover six of them, which were ultimately found at between 3 and 4 A. M., lying dead or dying on another part of the railway ; and it appeared that they had gone along the occupation road up to a garden and orchard about a quarter of a mile from the level cross- ing, had got into the garden through a defect in the fence, and so on to the line. "There was no evidence as to when the train had passed which ran over the cattle. Meld, that, it being admitted that the defendants had been guilty of negligence wMch caused the drovers to lose control over the cattle, and it being also admitted that the plaintiff's men had done all they could to recover control over the beasts, and had not been able to do so before they were killed, their death was the consequence of the defendants' negligence, and the dam- age was not top remote. Sneesby v. Lancashire, etc., Ry. Go. (Q. B.), VIII, 337. See Carbibrs; Railway. Company. NEGOTIABLE INSTRUMENT. What is. Scrip issued in England by the agent of a foreign government, by which the holder is to be entitled, on payment in full of the installments due from him, to delivery by the agent of definitive bonds of the foreign govern- ment on their arrival in this country, and which, by the usage of bankers and dealers in public securities, is transferred by mere delivery, is negotiable and the title passes by such delivery to a bona fide holder for value. Goodwin v. Rdbarts (Exch.), XIV, 591 ; affirming S. C, XII, 525. See BiLii OF Lading ; Bond. NEW TRIAL. ♦ 1. Grounds for. In a case where it is evident that the jury did not give the proper weight to the evidence laid before them, a new trial may properly be granted. Gdbequid Moirine Ins. Qo. v. Barteaux (Priv. C), XII, 301. 2. In an action on a marine policy for a total loss, where it appears that the master sold the vessel hastily, after an insufficient survey, and with- out having made such efforts to save her as alone would justify a sale and. make it valid against the insurers, a verdict fOr the plaintiff should be set aside and a new trial granted. lb. 3. Inadequate damages. A n«w trial will be granted for inadequacy of damages in an action for slander, where the smallness of the amount shows that the jury have made compromise, and, instead of deciding the issues sub- mitted to them, have agreed to find for the plaintiff for nominal damages only. Falmey v. Stanfwd (Q. B.), XI, 146. 4. Peijured witness. In a testamentary suit, the jury, being unable to agree, were discharged without giving a verdict. The question in dispute, the capacity of the deceased, was afterward referred to a second jury, who found in the affirmative and for the plaintiff. Application was made for a new trial on the ground of the verdict being against the weight of evidence, but it was refused. Subsequently the plaintiff was convicted of perjury in reference to 356 NOTICE. the evidence he gave in this coiirt in the above suit. Held, that that circum- stance was not in itself sufficient to justify tlie- court in allowing a new trial after an application with that object had been rejected. Dames v. Brecknell (Prob. & Div.), VI, 369. See DivoBCB; Practice. .NEXT FRIEND — 5e« Lottatic. NOTICE. 1. Of act of bankruptcy. Notice to sheriffs officers in possession of goods under an execution of an act of bankruptcy by the debtor is not notice to the creditor. Mx parte Schulte; In re Matanle (Chan. App.), VIII,'933. 2. Of assignment of policy. In 1845 E. effected a policy for £1,000 upon his life, and assigned it by way of mortgage to G. In 1858 W. (who was G.'s attorney) went to the office to pay a premium and to confer with the secretary upon other business connected with the office, and then informed him of the assignment. In 1862 E. became a bankrupt, and he died in 1871. After the death of R. the office for the first time had notice of his bankruptcy. Meld — upon a special case, the court to draw inferences of fact — that the conversa. tion between W. and the secretary in 1858 was a sufficient notice to the office that the policy had been assigned and was not in the order and disposition of E., the statute requiring such notices to be in writing not being at that time in existence. Alletson v. Chichester (Com. PI.), XII, 386. 3. Knowledge by a person who is competent to receive notices on be- half of the company is the knowledge of the company, even though not com municated to it. lb. 4. Of equitable rights. Where money is lent on an equitable mortgage without notice of a prior equitable agreement, the lender gains no priority over the owner of the prior equitable interest by getting in the legal estate after he has notice that his mortgagor has made himself a trustee for the owner of the prior equity. Whether he would be in any better position if he had no notice, qumre f Mumford v. Stohwasser (Eq. C), XI, 533. 5. A builder entered into a building agreement under which leases of plots of land were to be granted on completion of houses on them. He built a house on one plot, and verbally agreed on getting his lease to grant an un- der-lease to M., who gave valuable consideration for the under-lease, and en- tered into possession. Subsequently the builder, without the knowledge of M., obtained a lease of the house, and deposited it with the defendant to se- cure an advance made without notice of M.'s title. After this the builder, as agent for the plaintiff (who claimed under M.'s will), let the house to a tenant. Subsequently the builder granted to the defendant a legal mortgage to secure the previous advance. This suit was instituted for specific performance of the agreement for an under-lease. Held, that the tenancy gave the defendant constructive notice at the time of taking the legal mortgagethat the builder was a trustee for M., and that the legal estate was no protection to the defend- ant against the prior equity; and a decree was made for specific performance, but, having regard to the negligence of M., without costs. lb. NOTICE. ' 357 6. — ^ It is inconsistent with the policy of the Irish Registration Law to impose on a mortgagee or purchaser the duty of inquiry with a view to the discovery of previous unregistered interests, but quite consistent with it, if lie knows of the existence of those interests, to estop him from contending that, as to him, they are void merely because they are unregistered. Agra Bank V. Barry (H. of L.), IX, 94. 7. The doctrine of imputing in all cases the knowledge possessed by the solicitor to the client who employs him considered and disapproved. lb. 8. W., the acting trustee of a marriage settlement, duly advanced £3,000, part of the trust funds, upon mortgage, of real estate, of which he took a conveyance to himself and his co- trustee, and obtained possession of the title deeds. C, the mortgagor, was a client of W., who was a solicitor. After- ward W. fraudulently handed over all the deeds to C. C. suppressed the mortgage deeds, and deposited the rest, in March, 1865, with a bank to secure his current account. The manager of the bank requiring a certificate of title, C. referred him to W., who signed a certificate, in the manager's handwriting, at the foot of the memorandum of deposit : " 1 hereby certify that Mr. C. has a good title to the above properties," for which the bank paid him a fee. In 18C8 W. became bankrupt, whereupon the fa,ct of the deposit with the bank was discovered by the co-trustee and the beneficiaries ; and the bank were informed of the trustees' claim. In 1869 C. died, and the mortgage deeds could not be found. In 1873 W. died. On bill by the beneficiaries and sur- viving trustees of the settlement against the bank, praying for a declaration that the plaintiffs were first mortgagees, and for delivery up of the title deeds, held, that by reason of the fraud of W. notice of the first mortgage could not be imputed through him to the bank, and that the bank were mortgagees for value without notice of the prior mortgage. Waldy v. Gray (Eq. C), XIII, 759. 9. C. and B., tenants in common in fee, in equal shares, of a messuage and premises, entered into partnership, and it was agreed by the articles that this property should be partnership assets ; and it became the place where the business of the firm was carried on. After this B. made a legal mortgage in fee of one moiety to secure his private debt to a person who knew that the property was the place of business of the firm. Some years afterward B. absconded, and C. was obliged to pay the debts of the firm, all of which had been contracted since the mortgage, and a large balance tli us became due to him. Held, that as the mortgagee, when he took his security, knew that the firm was in possession of the property, he had constructive notice of the title of the partnership, and that his claim must be postponed to that of 0. ; and that the circumstance of the debts paid by C, having been incurred since the mortgage, did not aflfect the case. Oavender v. Bulteel (Chan. App.) VIII, 743. 10. Of right of ■way. Notice of a right of way and of an obstruction to it is notice of the grantee's right of deviation. Selby v. Nettlefold (Chan. App.), VIII, 770. 11. Of suit pending. A decree was made in a creditors' suit for the ad- ministration of the personal estate of a testator, but no receiver was appointed nor any inj unction granted to restrain the executrix from dealing with the assets. More than two years after the decree, and nearly three years after the death of the testator, his executrix, who was also his sole legatee, opened an account 358 • NOTICE. NUISANCE. with a bank, headed "E. G , executrix of B. Q." In the following year, the account being overdrawn, she deposited with the bank a picture belonging to the testator's estate, to secure the balance then due and further advances. It appeared that the bankers did not know of the suit, and had no notice of any breach of duty on the part of the executrix. Held, that the bank had a valid security on the picture, for that the doctrine of Us pendens had no application; a decree for administration without any injunction or appointment of a receiver not taking away the power of the executrix to deal with the assets. Berry v. ffibbons (Chan. App.), VI, 588. Bee Bona Fide Pukchasbr ; Carrier ; Guaranty ; Insurance ; Mort- gage ; Principal and Agent. NOTICE 'TO QUIT — See Landlord and Tenant. NUISANCE. 1. Noise. The occupier of a house in a street in London had, many years ago, converted the ground floor into a stable. In 1871 a new occupier altered the stable so that the noise of the horses was an annoyance to the next door neighbor, and prevented him from letting his house as lodgings'. Held, that the fact of horses having been previously kept in the stable, but so as not to be an annoyance, did not deprive the neighbor of his right to have the nuisance restrained. Ball v. Bay (Chan. App.), VI, 435. 2. Annoyance caused by the unusual use of a house may be a nuisance where like annoyance from the ordinary use of it would not be. lb. 3. An action to restrain a temporary nuisance, such as the noise of machinery in adjoining premises, cannot be maintained by either the owner or the lessee of houses which are sublet to weekly tenants ; but, it seems, the latter may have that remedy, if the nuisance is injurious_ to their health or comfort. Jones v. Chappell (Eq. C), XV, 475. 4. Pollution of river. The Local Government Act (1858) Amendment Act, 1861 (34 & 25 Vict., c. 61, s. 4), enables local boards to execute works.without their districts for the purpose of the outfall or distribution of sewage, subject 'to the following proviso : " That nothing herein contained shall give or be construed to give power to any local board to construct or use any outfall, drain, or sewer for the purpose of conveying sewage or filthy water into any natural water-course or stream until such sewage or filthy or refuse water be freed from all excrementitious or other foul or noxious matter, such as would affect or deteriorate the purity and quality of the water in such stream or water-course." Held, that a local board is not entitled to discharge sewage by an outfall out of their district into a river so as to affect or deteriorate the water at the point of discharge. AUorney-Oeneral v. Oockermouih Local Board (Eq. C), IX. 720. 5. The C. local board discharged sewage into a river by an outfall out of their district so as to pollute the water at the point of discharge ; but such pollution was imperceptible at the town of W., situated eight miles farther down, and supplied with water for domestic purposes from'the river. Upon an information and bill filed by the local board of W. (in whom the W. water-works were vested), as relators and plaintiffs seeking to restrain the C. NUISANCE. . 359 local board from so discliarging the sewage, on the ground that their acts were, first, an infringement of the above-mentioned provisions of the Local Government Act, 1861, and, secondly, a nuisance to the inhabitants of W. Held, that upon the information an inj unction to restrain the defendants from infringing the act of Parliament must be granted with costs ; but that the bill, which sought to make out a case of nuisance, must be dismissed with costs. lb. 6. The authority over sewers, and the drainage powers given by Par liament to local boards, do not authorize the committal of a nuisance by the boards in their exercise of such powers, such as the pollution of a stream by turning sewage into it. Attorney-General v. Sackney Local Board (Eq. C), XV, 520. 7. Stoppage of sewer. A local board of health entered into an agreement with a sewage company, in pursuance of which they afterward granted a lease to the company of the sewage works of a town, and of a plot of land, for a term of fourteen years, the company covenanting that they would, during the term, keep the outfall of the works, with the engines, pumps and apparatus, in proper working order, so as to admit of the free flow of the sewage through the sewers communicating with the works, and so that the same might not at any time be stopped. To a bill by the local board against the company, com- plaining that the company's works were insufficient to treat the sewage suc- cessfully ; that they were pumping only a portion of the sewage out of the sewers, and were damming up or heading back the residue in the sewers, so as to be a nuisance to the inhabitants of the town, and that the plaintiflFs were being threatened with proceedings; and praying for an injunction to restrain the defendants from permitting the sewage to remain in the sewers, so as to be a nuisance or damage to the plaintiflFs, and from damming up or heading back the sewage in the sewers; the defendants demurred on the grounds that the court could not superintend the proper performance of the works; that the plaintiffs had alleged no special damage, and that it was not the practice of the court to restrain the infringement of. a public right at the suit of a cor- poration, except at the instance or in the presence of the Attorney General. Demurrer overruled and injunction granted. Nuneaton Local Board v. Oen- eraJ. Sewage Co. (Eq. C), XIII, 664. 8. Action by individual. Where a public street was improperly used as a stable-yard, held, that the nuisance to the neighboring houses was not so per- manent as to entitle a reversioner to an injunction. Mott v. SehooWred (Eq. C), XIII, 583. 9. To entitle a private person to maintain an action for a thing which amounts to a public nuisance, he must show that he has sustained a particular damage or injury other than and beyond the general injury to the public, and that such damage is direct and substantial. Benjamin v. Storr (Com. PI.), X, 331. 10. The plaintiff kept a coffee house in a narrow street near Covent Garden. The defendants carried on an extensive business as auctioneers in the same neighborhood, having an outlet at the rear of their premises next adjoining the plaintiff's house, where they were constantly loading and un- loading goods into and from vans. The vans intercepted the light from the 360 NUISANCE. OBSCENE PUBLICATIONS. plaintifE's coffee shop to such an extent that he was obliged to burn gas nearly all day, and access to the shop was obstructed by the horses standing in front of the door, and the stench arising from their frequent staling there rendered the plaintiff's dwelling incommodious and uncomfortable. Held, that the evi- dence disclosed such a direct and substantial private and particular damage to the plaintiff beyond that suffered by the rest of the public as to entitle him to maintain an action. lb. 11. Joinder of plaintiffs. Two owners of distinct properties joined as plain- tiffs in a suit to restrain a nuisance. The court considered that a sufficient case of nuisance had, in the case of the first plaintiff, not been made out, but in the case of the second plaintiff had been made out. A decree was made for an injunction, so far as regarded the second plaintiff, and for the defendant to pay him his costs ; the bill, as regarded the first plaintiff, to be dismissed, and the costs occasioned by the addition of the first plaintiff to be deducted from the costs so to be paid by the defendant. Umfreville v. Johnson (Chan. App.), XIV, 803. 12. Licensor liable for. Where the occupier of lands grants a license to another to do certain acts on the land, and the licensee in doing them com- mits a nuisance, the occupier may be made a defendant to a suit to restrain the nuisance. White v. Jameson (Eq. C), IX, 817. 13. When court tnrill restrain. The amount of annoyance which will induce the court to interfere between the owners of adjoining buildings discussed and defined, and the nature and value of evidence in such cases considered. Gaunt V. Fynney (Chan. App.), IV, 718. 14. Where a trifling trespass, or an interference with an ancient right, has been submitted to for six years, the court will not exercise its jurisdiction, but will leave the plaintiffs to their rights at law. lb. 15. '■ The acts of several persons may together constitute a nuisance, which the court will restrain, though the damage occasioned by the acts of any one, if taken alone, would be inappreciable. Thorpe v. Brumfitt (Chan. App.), VI, 554. See Cbiminai Law. NUNCUPATIVE WILL— £f«e Will. OBSCENE PUBLICATIONS. What are. A police magistrate had ordered the destruction of copies of a pamphlet, which the appellant kept at his shop for sale, as obscene books, under 20 & 31 Vict., c. 83, s. 1. This pamphlet was a substantially correct report of the trial of one G. M., on an indictment for a misdemeanor in selling a certain obscene work called the " Confessional Unmasked ; " but it set out that work in full, whereas, at the trial, it was taken as read, and passages in it only referred to. Held, that the pamphlet, being of such a character that it would necessarily tend to the depravation of the public morals, was an obscene book within 20 & 21 Vict., c. 83, even although the object of those publishing it were to suppress a system they thought immoral and pernicious. Held also, that the privilege given by the law to reports of judicial proceedings does ■ OFFICER. ORDINANCES. 361 not extend to reports which contain matters of an obscene and demoralizing character, and that the case was, therefore, within 20 & 21 Vict., c. 83, and the decision of the magistrate correct. Steele v. Brannan (Com. PI.), II, 575. OFFICER. 1. Personal liability. At a meeting of the members of a highway board it was resolved that a path running through land, in the occupation of the plain- tiff, was a highway, and that the plaintiff be directed to remove a lock from a gate placed across it. The surveyor of the board was afterward ordered by them to remove the lock, and did so. On the trial of an action of trespass brought by the plaintiff against the members of the board in their personal capacity, and the surveyor, in which the defendants justified, the Court of Exchequer held that, assuming that the resolution was illegal, the members of the board who concurred in it were personally responsible ; secondly, that the fact that the surveyor was, by 35 & 26 Vict., C. 61, s. 16, bound to obey the orders of the board, did not excuse him if, in obeying their orders, he did an unlawful act. Held, by the Exchequer Chamber (expressing no opinion as to the liability of the members of the board), that the surveyor was liable. Mill V. Hawker (Exch.), XII, 538 ; aflirming S. C, X, 468. 2. Supplying goods to parish. By s. 77 of 4 & 5 Wm. 4, c. 76, " it shall not be lawful for any person hereafter to be appointed in any parish or union to any office concerned in the administration of the laws for the relief of the poor, or for any person who shall fill any such office, to furnish or supply for his own profit or on his own account any goods, materials, or provisions ordered to be given in parochial relief to any person in such parish or union. * * *" The appellant was a guardian of the poor for N. Union ; he was also a cabinet maker, and carried on business with D. as D. & Son. An application was made to the board of guardians for clothing and a bedstead for an out-door pauper of the union, and an order made by the guardians for clothing only ; the re- lieving officer purchased from D.,at the shop of D. & Son., a bedstead, which was delivered by D. at the house of the out-door pauper ; the bedstead was only lent'to the pauper by the guardians and remained their property. T>. knew, but the appellant did not know, that the bedstead was purchased for the guardians and was to be supplied to the pauper by way of parochial relief. Held, 1. That a guardian of the poor of a union is a person appointed to an office within the above section. 2. That the appellant was liable to be con- victed under the above section, although he had not knowledge that the bed- stead was to be given in parochial relief ; and that it was immaterial whether the relieving officer to whom the bedstead was sold was authorized to purchase' ic. 3. That the bedstead, having been supplied gratuitously in the way of parochial relief, was " given in parochial relief " within the above section. Dmies v. Harvey (Q. B.), IX, 367. See Ckiminal Law ; Mastbk and Servant ; Negligence ; Public Company. ORDINANCES. Imposing penalty. A local board of health made by-laws, under B. 34 of the Local Government Act, 1858 (21 & 32 Vict., c. 98) : " 6th. Every person intend ing to erect any new building shall give fourteen days' notice, to be de 46 363 OEDINANCES. PAEENT AND CHILD. livered to the board's surveyor, or left at his house, with detail plans and sec- tions, and any person who shall erect any new building without delivering such notice and plans and sections, or without having the plans, etc., approved by the board, shall be liable to a penalty of 40«." By by-law 36 the board may cause to be altered or pulled down any building begun or done in con- travention of the by-laws. Held, that the 6th by-law was within the powers conferred by s. 34, and was reasonable and, therefore, valid. Hall v. Nixon (Q.B.), Xn,218. OYSTERS — &« Fishery. PARENT AND CHILD. 1. Custody of child. A person who has been duly appointed under 13 Car. 2, c. 34, s. 8, by the will of a father, to be guardian of his child, stands in loco parentis, and having, therefore, a legal right to the custody of the infant, may, in order to obtain possession of such ward, claim a writ of Tidbeag corpus, which a common-law court has no discretion to refuse if the applicant be a fit person, and the child too young to choose for itself. Matter of Andrews (Q. B.), IV, 261. 2. Where, however, the validity of the testamentary appointment is disputed, the court will direct an issue to be tried by a jury in order to estab- lish the same. lb. 3. Per the Lord Chancellor (Lord Cairns) : The act of Parliament hag given the court the widest discretion to weigh the comparative advantages or disadvantages of giving the custody of all or of any of the children to the one parent or to the other, and I am at a loss to "conceive how any general rule can be laid down. It is the duty of the court to consider all the circumstances of the particular case. Symington v. Symington (Sc. App.), XII, 109. 4. Per the Lord Chancbllok : Grave as the oflfense in this case was, there appears to be no continuance of immorality. It is proved .that the hus- band is affectionately attached to his children, and has always been so. He is engaged in a profitable business. I cannot perceive that an order which should take from him the custody of his sons would be conducive to their fu- ture welfare. It is » very diiFerent matter with regard to the daughters. Their mother, against whom nothing has been proved, is the natural person to have their custody. lb. ^ 5. ' Per Lord O'Hagan : The father did not lead an openly inamoral life, but had the character of a religious and upright man. He had a genuine love for his children, and exhibited a watchful care of them ; and there does not seem any reasonable ground for anticipating that the male children will be injured if their custody be with their father, especially as they are of sufficient age to be kept at school. lb. 6. Per Lord Sblboknb : Looking to the moral interest of these boys, I am not satisfied that it will be compromised by leaving them in the care of him who is their natural and legal guardian, and on whom their material in- terest must mainly depend. lb. 7. Control of education. An ante-nuptial agreement that the children shall be brought up iu a different religion from that of the father is not binding at law or in equity ; but such an agreement will have weight with the court in PAEENT AND CHILD.- PARTIES. 363 considering wliether the father has abandoned his right to educate his chil- dren in his own religion. Andrews v. Salt (Chan. App.), VI, 536. 8. Where a father has not forfeited or abandoned his right to educate his children in his own religion, the court cannot refuse to order a child to be educated in that religion merely because it thinks that the child will be more happy and contented, or better provided for, if left with those who have had the care of it. lb. 9, But if a father has forfeited or abandoned his right to educate his children in his own religion, the court will consider only the happiness and benefit of the child, and will order it to remain in the care of those by whom it has been brought up, and to be educated in their religion, although the child may not have so far imbibed the particular doctrines of that religion as to render it dangerous to change its religious training. lb. 10. The father o E the infant plaintiff was a Roman Catholic, and the mother a Protestant. Before the marriage they made a verbal agreement that the boys should be brought up as Roman Catholics and the girls as Protest- ants. The plaintiff, who was a girl, was baptized in the Church of England. At the time of her birth her father was absent, ill of consumption, but was in- formed by letter of the mother's intention as to the baptism. He replied, say- ing that a Roman Catholic priest would call on the mother. This was not done, and the child was baptized as a Protestant. The father died in Febru- ary, 1863, when the child was about nine months old, leaving no property for the support of his children. A few days before his death he made a will, whereby he directed that his children should be brought up in the Roman Catholic faith, and appointed his brother, who was a Roman Catholic, their guardian. After his death the plaintiff was allowed by the guardian to remain with her mpther and her mother's family, and to be brought up by them as a Protestant till she was nearly nine years old. The guardian then claimed that the child should be given up to him, and, after Jong discussion, applied for a writ of habsixs corpus in the Court of Queen's Bench. The child was then made a ward of the Court of Chancery, being then nearly eleven years old, and the lords justices, having seen and conversed with her, were of opinion that she had not imbibed the distinctive principles of the Church of England to such an extent that it wouM be cruel or dangerous on that ground alone to have her educated in the Roman Catholic faith. Seld, notwithstand- ing, that the plaintiff ought to be allowed to remain with her mother, and to be brought up in the Protestant religion. lb. See Criminal Law ; Fbaud ; Infant ; Will. PAROL EVIDENCE — Se« Ckiminal Law ; Evidence; Will. PARTIES. 1. Agent. An agent who effects an insurance on a vessel "as well in his own name as in the names of all" other persons interested, having authority so to do, may sue for the sum assured in his own name in case of loss. Pro- mncial Ins Co. v. Leduo (Priv. C. ), XI, 84. 2. Bankrupt. A bankrupt is not a proper party to a suit instituted by the trustee under his bankruptcy to set aside a conveyance executed by the bank- 364 PAETIES. PAKTITION. rupt with intent to delay or defeat his creditors. Weise v. Wardld' (Eq. C.^ XI, 766. 3. The rule that a person implicated in a fraudulent transaction may be made a party to a suit impeaching the transaction, for purposes of discovery and costs, is confined to cases in which the defendant fills the position of agent (including that of attorney or solicitor) or arbitrator. lb. 4. Cestui que trust. One of several cestuis que trust cannot, on an allega- tion- that the trustees have refused to take proceedings, maintain a, suit against a debtor to the trust estate. S/tarpe v. San Paulo Ry. Go. (Chan. App.), VI, 516. 6. Infant. In a special case to determine the right to a legacy, in which the interests of infant defendants were involved, the court, at the hearing, dispensed with the presence of a child born after the case' was set down. Palmer v. Flower (Eq. C), I, 664. 6. Joint and several wrong-doers. Where parties are jointly and severally liable for the misappropriation of money, they may all or any of them be sued therefor. Plumer v. Gregory (Eq. C), XI, 573. 7. Manager. The manager of a mutual insurance company cannot sue in his own name to recover contributions from members, even though the rules of the company may profess to authorize him to do so. Evans v. Hooper (Q. B. Div.), XV, 179. 8. Purchaser not in possession. The purchaseir of goods which remain in the possession of the vendor subject to the vendor's lien for unpaid purchase- money, not having a present right of possession, cannot maintain an action of trover against a wrong-doer. Lord v. Price (Exch.), VIII, 505. 9. Trustee. An indenture was made between R. of the first part, B. of the second part, and certain creditors of R., whose names and seals were, or were in- tended to be, set thereto, whereby R. assigned all his personal estate to B. on cer- tain trusts in favor of such creditors. Held, that the deed 'would operate as an assignment of the persbnal estate, so as to enable B. to maintain a suit against a trustee to whom certain personal estate had been assigned in trust for A. , although not signed by such creditors, and that the creditors need not be parties to the suit. Olegg v. Rees (Chan. App.), I, 433. See BxEcuTOKS, etc.; Fraud; Husband and Wipe; Infant; Lunatic; Nuisance ; Trust , Will. PARTITION. 1. Parties, A bill for partition cannot be filed by a next friend on behalf of a person of unsound mind who has not been so found by inquisition, but a proceeding for a sale should be instituted under the lunacy regulation act. Halfhide v. Robinson (Chan. App.), VIII, 918. 2. Reference as to sale. A decree in a partition suit directed inquiries as to the persons interested, and whether a sale would be more beneficial than a partition, and if so found, directed a sale. The sale took place before the cer- tificate was made. Held, that the purchaser was entitled to be discharged, but that the decree was not wrong in directing a sale without reserving further consideration. Powell v. Powell (Chan. App.), XI, 488. PARTITION. PAETNEESHIP. 365 3. Enforcing sale. By a decree for admiuistration in a County Court, a sale of real estate devised to A. and six other persons, parties to the suit, was ordered, and an inquiry was directed before the Registrar of the Court as to A., who had not been heard of for many years. On an aflBdavit being pro- duced to the Registrar showing that A. had not been heard of for seventeen years, the sale was effected without any certificate as to the result of the in- quiry beiing made. The sale produced more than £500, and the cause was transferred to the Court of Chancery. On motion by the purchaser to be dis- charged and to have his costs paid, on the ground that the sale was invalid as having been made before a certificate in answer to the inquiries had been made, held, that A. must be presumed to be dead without issue ; and that, as all parties interested were in fact before the court at the hearing, and were willing to convey, and a good title could be made independently of the Parti- tion Act, 1868, the purchaser was bound to accept such a title, and could not rely upon the technical informality in the decree. Bawlinson v. Miller (Chan. Div.), XV, 644. 4. Costs. Where infant plaintiffs prayed for a declaration that premises were divisible amongst them and a defendant, and that the costs of the suit might be taxed, and the plaintiffs' costs declared to be a charge on their shares of the proceeds, the court made a declaration as to the rights of the par- ties, and for a partition, or sale, and, after payment of the costs, for u division, and directed a sale, but declined to make any order as to the costs until the further consideration of the cause. Davey v. Wietliabaeh (Eq. C), V, 843. PARTNERSHIP. 1. Loan for share of profits. One who loans money to a trader, under an agreement that he shall receive a percentage of the profits of the business in lieu of interest, becomes a partner with him, as to other creditors of such trader, and cannot prove for such moneys in case of his bankruptcy, even though all the debts incurred by such trader during the continuance of the agreement have been paid. So, alSo, if he advance further sums on interest, and without any such agreement, if he does so with the intention to evade the statute on that subject. Ex parte Mills (Chan. App.), VI, 496. 2. Participation in net profits. Agreement in writing .entered into between W. & Co., British merchants, carrying on business at Calcutta, with a Hindoo, rajjih, by which, in consideration of moneys already advanced, and which might be thereafter advanced by the rajah to them, they agreed to carry on the business, subject to the control of the rajah in several particulars, stipulat- ing that the rajah should receive a commission of twenty per cent on all profits made by the firm, until the whole amount of the debt due to him should be paid off, with twelve per cent interest upon all cash advances which had been, or might be thereafter, made by him to the firm. Further advances having been made by the rajah to the firm, W. & Co. executed to him a mortgage of certain tea plantations, to secure the then amount of his advances, and the rajah by a deed released his right to commission and interest under the original agreement between them. No proceeds of the business were ever received by the rajah, and though he was credited in the books of the firm with a considerable sum, that sum was never received by him, and was afterward written back in the 366 PAETNEESHIP. books of the firm. The rajah did not interfere or exercise any such control in the business as to make him an ostensible partner in the firm. Held, that having regard to the restrictions and modifications made of late in the rule of law formerly prevailing, that participation in the net proceeds of a business made the participant liable as a partner to third parties, and looking at the whole scope of the agreement, the primary object was to give security to the rajah as a creditor of the firm of W. & Co., and that the participation given him in the net profits of the business was not suflScient -to establish a partner- ship between W. & Co. and the rajah, as regarded third parties. Mollwo v. Gourt of Wards (Priv. C), IV, 131. 3. Although a right to participate in the profits of a trade is a strong test of partnership, and there may be cases where, from such perception alone, it may as a presumption, not of law, but of fact, be enforced ; yet whether that relationship does or does not exist must depend on the real intention and contract of the parties. lb. 4. Share of profits in payment for services. An agreement dated in August, 1864 (previously to the passing of the act 38 & 39 Vict., c, 86), provided that an underwriting account at Lloyd's should be carried on in the name of the defendant, and the subscription paid in his name ; that all policies, losses, and averages should be signed and settled by the defendant, or by the plaintifl' as his agent'; that the plaintifl' should apply the whole or such part of his time and attention to the said business .as might be required for conducting the same ; that proper books of account should be kept by the plaintiff, he obtain- ing such assistance from time to time as he might find necessary, subject to the approval of the defendant ; that the plaintiff should be paid or allowed a salary of £150 by the defendant ; that the profits should be divided between the plaintiff and the defendant in the following proportions, viz.; that the defendant should be entitled to four-fifths and the plaintiff to one-fifth ; that if in any one year the business should not yield any profit, but a loss should accrue to the defendant, then he alone should bear and pay the said loss, and the plaintiff should be entirely exempt from bearing and paying any part or proportion thereof, and any profits arising from the business of any one year should not be set off against or reduced by the loss in any other year ; and that, if after the division of profits in any one year any unexpected claim or demand should be made upon the partners, they should advance and pay their respect- 'ive proportions thereof nevertheless, so that the plaintiff be not called upon to pay any greater sum of money in respect of the business of any one year tlian the amount of the sum he should then have received as and for his share of the profits in respect of the business for that same year. Held, that the contract wa| one of hiring and service, and not of partnership. Ross v. Parkyns (Eq. C), XIII, 834. 5. Partnership at will. A., in June, 1869, borrowed £350 from B., and, at the time, signed a paper in the foUovring words : " In consideration of the sum of £350 this day paid to me, I hereby undertake to execute a deed of copartinership to y6u for one^eighth share in the profits of the Oxford Music Hall and Tavern, to be drawn up under the Limited Partnership Act of the 38 & 29 Vict. , c. 86, called an ' Act to amend the Law of Partnership.' " Held, that this paper (which contained no provision as to the date or duration of PAETNEKSHIP. 367 the partnership) oonstituied a partnership at will ; and that it was not put an end to by a letter, dated in August, 1873, in which A. promised to repay B. on the 1st of September, 1872, the principal sum, together with interest thereon (treating it only as a loan) such as should, as on a calculation of one-eighth of the profits, be found to be due to B. on that day. This letter was followed by a tender, which was not accepted. On a. bill filed by B. for specific perform- ance of the agreement to execute a partnership deed for one-eighth share of the profits, A. put in an answer in which he denied that there had been a partnership at all, but submitted that if any partnership had ever existed it was only a partnership at will, of one-eighth share of the profits (payment of which he offered to make), and he submitted that this partnership had been determined by the letter of August, 1873. Held, that it had not been deter- mined by that letter, but that the answer had the effect of putting an end to it ; and that accounts must be directed to be taken as up to the day of filing the answer, and that these accounts must include the principal, the eighth share of the profits, and also the eighth share of the assets up to that day. Syers v. Syers (A pp. Cas.), XV, 52. 6. Per The Lord CHANCEiiLOR (Lord Cairns) : A copartnership in profits is a copartnership in the assets by which the profits are made. lb. 7. Per Lord Chelmsford : In order to bring a case within the 38 & 29 Vict., u. 86, there must be a contract in writing, and the document must show on the face of it that the transaction is one of loan ; and parol testimony to •vary it is inadmissible. lb. 8. In a case like the present the Court of Chancery has power, in its discretion, to grant either a sale of the undertaking as a going concern, or a proposal for a purchase (by the holder of the seven-eighths share) of the one- eighth share mentioned in the agreement. The House, under the circumstances here, adopted the latter course. lb. 9. Executors not liable as partners. By articles of partnership, T. F., W. F., and S. agreed to carry on the business of auctioneers in partnership for seven years ; they were to contribute capital and to share profit and loss equally ; and if either died during the partnership term, the surviving mem- bers of the firm were to continue the business, and were to pay to the personal representatives of the deceased partner the share of the profits to which he would have been entitled if living. T. F. died during the partnership term. At the time of his death the firm had no capital, except office furniture and fittings, worth about £100. They had in their hands a sum of between £400 and £500, which was the proceeds of debts due to a former firm in which T. F. was a member, and left in the hands of the new firm for collection ; and this sum belonged beneficially to T. F. T. F. was also entitled in respect of his share of profits, beyond the amounts which he had drawn, to a sum of about £300. After the death of T. F. the surviving members of the firm continued to carry on the business, to collect the debts due to the old firm, and to earn profits. The executors of T. F. never interfered in the business, but they claimed, under the articles of partnership, the share of profits to which T. F. would have been entitled if living. No settlement of accounts in respect of T. P.'s interest in the partnership business was made between his executors and the surviving partners.- Sums of money amounting in the 368 PARTNERSHIP. whole to about £635 were from time to time paid by the firm to the execu- tors ; these payments were made generally, and not on any particular account. After the death of T. F. the firm were employed by the plaintiff to sell property ; they sold the property and received the proceeds but did not pay over the same to the plaintiff. In an action brought (after the death of 8.), against the executors of T. F. and W. F., held, that the executors of T. F. were not liable as partners. The Paj-tnership Act, 1865 (38 h 39 Vict.; c. 86), considered. Ilolme v. Hammond (Exch.), TI, 135. 10. Partnership property. A testator, a nurseryman, devised his real estate, on part of which he had carried on his business, and his residuary personal estate, to his three sons, F., M., and J., as tenants in common. After his death they carried on the business in partnership, and out of moneys belonging to the estate completed a contract for the purchase of more land, which was in- choate at the death, and employed such land in the business. Subsequently F. and J. purchased M.'s third share in the land and business, and paid for it partly out of the estate and partly out of moneys borrowed on the land. F. and J. then continued the business on the land. F. subsequently died intes- tate. Held, that both the devised and the purchased land employed in the business was partnership property and was converted into personalty. Waterer V. Waterer (Eq. C), V., 901. 11. On the formation of a partnership it was agreed that the business should be carried on at a mill belonging to R., one of the partners ; and E. was credited in the books of the partnership with the value of tl\e mill. From time to time sums were expended in making additions to and improvements in the mill ; and in the yearly balance sheets the mill was entered at the original value, increased by the amount so expended, but less a certain amount for depreciation ; and the partners were allowed interest on the sums from time to time standing to their capital accounts. Held, that in the absence of any special agreement the mill was an asset of the partnership, and that on a sale of the business, under which the purchase-money of the mill was largely in excess of its value in the books, the difference was profit devisable in the proportions in which the profits of the business were devisable at the time of the sale. Ashton v. BoMnson (Eq. C), XIII, 585. 12. Partnership liability. Four firms, F. & Co., M. & Co., M. & L., and A. & Co., associated themselves in a trading adventure, under an agreement which provided "that the finance of the business be carried on by acceptances of the several parties interested as may from time to time be arranged." The as- sociation was not registered, nor was its existence made known to the world, though it was known as the A. P. Company among its members. The adventure had, before the association was formed, been carried on by F. & Co.' in whose name it continued to be carried on. An order having been made for winding up the association, an application was made to prove on ten bills of exchange, drawn by M. & Co. for the purposes of the adventure, and accepted some by F. & Co., some by M. & L., and some by A. & Co. Held, that the proof could not be admitted, for that the bills bound only the individual firms by which they were drawn and accepted. In- re Adansonia Fibre Go.; Miles, Claim (Chan. App.), X, 634. 13. By an agreement between A., B., C. and D., four partners in a mer- cantile business, after reciting, among other things, that all the partners had PARTNERSHIP. 369 considerable sums of money employed in the business as floating capital, wliicli it might be impracticable or highly detrimental for the others of them to repay or advance from the said business immediately after the retirement or decease of either of them, it was agreed between and by A., B., C. and D., that in case of either of them retiring from the copartnership business, or departing this life during the continuance thereof, then and in such case the continuing or surviving partners or partner should not be compelled by such retiring part- ner, or by the executors or administrators of such deceased partner, to repay to him or them his or their share in the said copartnership business immedi- ately, but the clear balance, as ascertained from the last stock-taking, due to such retiring or deceased partners, together with any additional capital (if any), should be repaid out of the business by the continuing or surviving part- ners by installments, as therein mentioned, until the whole amount should be fully paid or discharged, unless the surviving or continuing partners should wish to pay such share or balance at an earlier period, which they were to be at liberty to do. Seld, that the agreement was merely an arrangement as to the mode of discharging a pre-existing joint and several liability, and was not intended to alter the nature of the liability, which remained joint and several. Beresford v. Browning (Chan. Div.), XV, 637 ; affirming S. C, id. 494. 14. The plaintiff, a married woman, and her husband, were clients of J. and W., a father and son, who carried on business together in partnership aa solicitors. In 1859 the plaintiff became possessed, to her separate use, of a sum of £3,000, which, in consequence of her husband's pecuniary difficulties, she was advised by the solicitors to invest without his concurrence. On the suggestion of J. & W. she advanced to them £1,800, part of the £3,000, which they required for another client to complete a purchase of an advowson, on the security of a written undertaking, signed by both, to execute a legal mort- gage of the advowson to her when the transaction was completed. The plain- tiff subsequently handed the remaining £1,700 to W., on the representation by him alone that it would be invested on mortgage of the real estate of another client. In January, 1865, J. died, having retired from the business in 1863, and in May, 1865. the plaintiff was fraudulently induced by W. to execute a deed constituting liim the sole trustee of the £3,000, and empowering him to invest it as he thought proper, without being answerable for any loss. No legal mortgage of the £1,300 was ever effected, and in 1868 it was paid off to W. under the' authority of the>deed of 1865, and it and the £1,700, which had never been invested, were spent by W. He continued to pay the plaintiff in- terest on these funds till November, 1871, and died insolvent in March, 1872. Meld, on bill against the executors of J. and W., (1) that J.'s estate was liable to make good the loss of the £1,300; (2) that the dealing with the £1,700 was not part of the regular business of J. and W., as solicitors, and the receipt of it by one partner alone did not make the other partner liable, and J.'s estate was not liable to replace this fund. Plumer v. Gregory (Eq. C), XI, 572. 15. During part of these transactions C. was also a partner wjth J. and W., but he was not a party to the frrfUds, and no guilty knowledge was at- tribi^ed to him. Held, that the plaintiff might proceed against any or all of the parties jointly and severally liable, and that C. was not a necessary party to the suit. lb. 47 370 PARTNERSHIP. 16 B., a member of tlie firm of W. & B., attorneys and solicitors, drew and indorsed for value to the plaintiff, in the partnership name, a bill of ex- change, payable to the order of W. & B., which the defendant accepted with- out consideration. The indorsement was in respect of an entirely private matter of business between B. and the plaintiff, unconnected with partnership purposes. B. had no authority from W. either to draw or indorse the bill. In an action by the indorsee against the acceptor, the defendant having tra- versed the indorsement, held, that the defendant was not estopped from show- ing that there had been no indorsement in fact by the firm. Garland v. Jo- comb (Exch.), VI, 289. 17. Survivor, liability of. Where one partner, being made executor of his deceased copartner, with power to employ some of the assets of the estate in carrying on the business, uses other assets therein which he was not author- ized to so use, he is liable for a devastavit, and the same may be proved as a debt against him in case of his bankruptcy. Me parte Westeott ; In re White (Chan. App.), X, 630. 18. Dissolution for lunacy. The permanent lunacy of a partner is a ground of dissolution at the instance of 'the lunatic as well as of the other party. Jones v. Lloyd (Bq. C), IX, 793. 19. Termination by notice. The articles of partnership between the plain- tiff ai>d defendant provided that either partner should be at liberty to deter- mine the partnership at the end of the first seven years of the term, on giving previous notice to the other partner of his intention to do so. The plaintiff having become insane, the defendant served on him notice of his intention to determine the partnership at the end of the first seven years of the term. Held, that the partnership was thereby dissolved, and the party giving Such notice could not withdraw it, so as to restore the parties to their former posi- tion, without the consent of the other party. lb. 20. Rights after dissolution. A trader who has been a manager or a partner in' a firm of established reputation has a right, on setting up an independent business, to make known to the public that he has been with that firm; but he must take care not to do so in a way calculated to lead the public to believe that he is carrying on the business of the old firm, or is in any way connected with it. Hoolcham v. Pottage (Chan. App.), IV, 778. 21. The plaintiff, an old established tailor, took the defendant, who had been his foreman, into partnership, and the business was carried on under the name of H. & P. The partnership was afterward dissolved by a decree of the court, in which it was provided that the business of the partnership should belong to the plaintiff. The plaintiff accordingly kept up the shop under the name of H. & Co. Subsequently the defendant set up a shop only a few doors from the plaintiff's shop, and painted over the door the words " P., from H. & P." Held; that, having regard to the manner in which the names were painted up, the defendant had done that which was calculated to lead the public to suppose that he was still connected with the old firm, and that the plaintiff was entitled to an injunction. lb. 22. Articles for a partnership for one year contained an arbitration clause. The partnership was continued beyond the year and ultimately dis- solved. Held, that the arbitration clause was in force at the time of such dis- PARTNEESHIP. 371 solution, and proceedings in a suit for accounts by one of the partners against the other were stayed under s. 11 of the Common Law Procedure Act, 1854. Qillett V. Thornton (Eq. C), XIII, 530. 23. Where a partnership is determined prematurely, if the incoming partner has paid a premium, he is in all cases entitled to have a proportionate part of the premium returned, except, first, where there has been actual or implied release or waiver of the right to it, or, secondly, where there has been actual or implied release of the right to be a partner, including such a delib- erate and serious breach of the partnership contract as may be considered equivalent to a repudiation of it altogether. Wilson v. Johnstone (Eq. C), VII„617. 24. Mere conduct entitling the other partner to a dissolution is not suf- ficient, inasmuch as this court does not fine for immorality or even dishonesty in the abstract. lb. 26. Rights of executors of deceased partner. Five contractors jointly con- tracted to build a harbor, the building of which would take at least five years. Soon afterward one of the contractors died. Meld, that his estate was entitled to share in the profits of the contract, and that those profits were to be the actual profits ascertained when the contract was completed, and not by valua- tion or by sale of the contract. McClean v. Kennard (Chan. App.), VIII, 893. 26. The deceased contractor named in his will three executors. Before the will was proved the four other contractors signed a partnership agree- ment, in which they and also the executofs of the will were the parties, a blank being left for the names of the executors. The will was afterward proved by two only of the executors, and those two executors then signed the agreement. Held, on the construction of the agreement, that, though signed by two only of the executors, it was binding on the other contractors. lb. 27. -. Held, also, that no regard could be paid to evidence that the other contractors expected the concurrence of the third executor, and would not have entered into the agreement, if they had been aware that he would renounce. lb. 28. Accounting. Where part of the assets of a partnership consisted of a government contract entered into in the name of one of the partners and con- taining a proviso against alienation, held, tliat upon a dissolution of the part- nership, the partner in whose name the contract was taken, and who con- tinued to carry it on, must be debited in the accounts with its value, to be ascertained by a reference to Chambers. Ambler v. Bolton (Bq. C), III, 806. 29. In taking the accounts of a partnership, interest after the dissolu- tion will not in general be allowed to the partners on their respective capitals though interest during the partnership with annual rests is allowed ; but this rule may be varied by the terms of the articles, as, for example, by a provision treating the capital left in by a partner as an interest-bearing loan. Barfield V. LoiigKborough (Chan. App.), IV, 713. 30. Any sums of money received after the dissolution and retained by either partner ought to be debited to him, and applied first in reduction of the interest due to him, and then in reduction of his capital. lb. 31. H., a partner in a banking firm, entered into a bond with a board of 373 PARTNERSHIP. guardians, on being appointed their treasurer, with two sureties, one oi whom was K., a partner in the firm, and the other was E., who was not a partner. H. kept the account of the guardians' money at his bank under a special head- ing, " Norwich Union," and a sum of £5,677 was standing to that account when the bank stopped payment. H. died shortly after the stoppage, and his estate was administered in Chancery. The other partners were adjudicated bankrupts. The joint estate and H.'s separate estate were alleged to be insol- vent ; joint debts, to a large extent, remained unpaid ; K.'s separate estate was solvent. The amount due to the guardians was paid by B., who recovered by proof upon the separate estate of K., his co-surety, one moiety of the amount paid. The trustee of K.'s separate estate, who was also the trustee of the estate of the bankrupt partners, then claimed to prove against H.'s separate estate for the amount of the moiety paid to E. out of K.'s estate. Held, that, as the partnership received the money from and owed it to the guardians, the relation of principal and surety never in reality existed between H. and K. The claim was, therefore, disallowed. Lacey v. Hill (Chan. App.), V. 654. 32. Whether the rule in Ex parte Topping, in respect to the proof between separate estates of partners, would apply to a case where the separate estate in respect of which the proof is sought to be made is solvent, so that any surplus would go to the joint estate, quare f lb. 33. K. advanced money to G. on the faith of a letter, which K. insisted constituted a contract of partnership in the profits of the business of the Italian Opera at Covent Garden. G. insisted that it amounted to nothing but an agreement to pay the amount of the loan and the interest on it out of the profits (if any should arise), but that the concern remained his alone. The letters which passed between the parties were held to bear this construction, and, therefore, an account, as of the profits of a partnership, was refused. The advance was made with reference to the business of the Italian Opera at Covent Garden, the lease of which theatre was in the name of G. alone. That theatre was burnt down in 1856, and G. hired another theatre (the Lyceum), and carried on the business of the Italian Opera there, and in two years' time returned to a new theatre, at Covent Garden, which had been built in the in- terval, and of which the lease, as in the former case, had been granted in his name alone. Held, that the true construction of the letters between the parties showed that the agreement between them was confined to the old Covent Garden Theatre alone, and, therefore, an account of profits alleged to have arisen at the Lyceum and at the new Covent Garden theatres was refused. Knox V. Gye (H. of L.), IV, 44. 34. T. advanced £13,000 to G. on the terms of partnership. T. made a will, leaving this money equally between K. and G. T. died in December, 1854, before old Covent Garden Theatre was burned, which event took place in March, 1856. There had been, before December, 1854, negotiations between G. and one H. to allow G. the use of Her Majesty's Theatre ; but though a sum of £5,000 (part of T.'s £13,000) had been paid to H. under these negotia- tions, he had never performed his contract. G. finally brought an action against H., and recovered judgment for £5,000 ; but ultimately (after the death of T., yet within six years of the date of a bill filed by K. for an account) con- Bented to accept £3,500 as » compromise. K., in December, 1864, filed » PAKTNEESHIP. PARTY WALL. 373 bill against (i. for an account of profits in the partnership with T., and of what was due to K. in respect thereof, under T.'s will. Seld, that the right of K. under T.'s will began in December, 1854, and was barred in equity by analogy to the statute of limitations, the bill not having been filed till 1864. lb. 35. Per Lord Westbuky : There is no fiduciary relation between a sur\1ving partner and the representatives of his deceased partner ; there are legal obligations between them equally binding on both. lb. 36. Per the Lord Chancellor (Lord Hatherlby): There is a fiduciary relation between them, The surviving partner alone having the legal interest in the partnership property, and being alone able to collect it, there arises a right in the representatives of the deceased partner to insist on the surviving partner holding the property, whenever received, subject to the rights of the deceased partner, and he cannot make use of the partnership assets^ without being liable to account for them. This rule applies where there have been accounts settled between the representatives of the deceased partner and the surviving partner, and the latter afterward receives a debt due to the partner- ship, recognized in the settlement of the partnership accounts, but not at that time received from the debtor. lb. 37. Held, also (dissenting, Lord Hathbbly, L. C): That the surviving part- ner not being a trustee for the executors of his deceased partner, the payment of the £2,500 from H. within six years from the filing of the bill did not take the case out of the statute of limitations. lb. 38. Per Lord Westbuey : The phrase " comprised in the same account" in the' 19 & 20 Vict., c. 97, s. 9, means that " would have been com- prehended in." lb. 39. Winding up. Four persons carried on a business in partnership under a deed which provided that the death of a partner should not dissolve the partnership, but that the business should be carried on by the survivors or survivor, and the share of the deceased partner ascertained at the next half- yearly stock-taking, and paid to his representatives by installments. Two of the partners died, and afterward the survivors became bankrupt. No steps had then been taken to ascertain the shares of th6 deceased partners. Held, that the assets belonged to the surviving partners, and that the creditors of the four partners had no right to have the joint assets of the four which re- mained in specie applied first in payment of their debts. Matter of Simpson (Chan. App.), X, 597. See Criminal Law ; Lex Loci ; Limitations, Statutes of. PARTY WALL. 1. What includes. The plaintiff, having agreed to purchase two adjoining houses, agreed to sell one to P., and by plaintiffs direction that house was conveyed, in 1858, to P. (and by P. in 1866 to the defendant) in fee, the de- scription being, "all that dwelling-house now in the occupation of P., together with the walls belonging thereto." !rhe houses were in a street, and were built up to the foot-pavement. On the front of defendant's house, adjoining the front of plaintiff's house, was a slight projection nine feet wide ; in the middle of this was the doorway, three and a half feet wide, and on each side 374 PAETY WALL. PATENT. of the doorway was a pillar supporting a shallow portico ; over the doorway was a window of the same width, and above that a string course and a pedi- ment, all symmetrically placed on the nine feet projection. Inside, the party wall dividing the two houses, instead of being coincident with the extremity of the nine feet projection, was in a direct line with one side of this doorway, so that if the party wall had been prolonged in a straight line to the street, two feet eleven inches of the width of the projection, -which included part of the portico and of the pediment and the whole of one of the pillars supporting the portico, would have been on the plaintiff's side of that line ; and on the inside these two feet eleven inches, which, from the outside, appeared to be part of defendant's house, formed part of one of the rooms of plaintiff''s house. The defendant having painted the two pillars, the portico, and the whole of the pediment, which were stucco, but had never been before painted, plaintiff' brought an action of trespass, claiming as his the one pillar, the part of the portico, and the part of the pediment and string course over the pillar, all of which were on the plaintiff's side of the line marking the middle of the party wall. On the above facts, the court having power to draw inferences of fact, held, that the parts in question were parts of the defendant's house. Fox v. Clarke (Q. B.), X, 178; revereing S. C, III, 29i. 2. — — A wall may be a party wall to such height as it belongs in common to two buildings, and cease to be a party wall for the rest of its height, and the owner of the upper portion of such wall may have gained a right to main- tain ancient lights therein, which will prevent the owner of the adjoining house from raising it so as to obstruct those lights. Weston v. Arnold (Chan. App.), VII, 572. PATENT. 1. Granting. It is the duty of the law officer to hear and determine which of two rival applicants^ for patents is entitled to a patent, and the question ought not to be remitted to the Lord Chancellor by directing warrants for both patents. Matter of Henry (Chan. App.), IV, 838. 2. An applicant for a patent does not, by lodging a complete specifica- tion and obtaining protection, acquire the rights of a patentee so as, during the six months' protection, to prevent any other person who had previously applied for a patent for a similar invention from obtaining a patent. lb. 3. It is no objection to the grant of a patent that another person has been making experiments and working toward a similar invention. lb. 4. Opposition to granting. In opposing the grant of letters-patent, the bur- den is on the opponent to show that the grant would be clearly wrong. Matter of Sheffield (Chan. App.), IV, 866. 5 Where the facts on which the opponent relies were within his knowl- edge whei he opposed before the law oificer, he cannot, when before the Lord chancellor, raise a new legal 'argument on these facts ; nor can he then bring forward evidence which he might have brought before the law officer. lb. 6. Sealing. An applicant for a patent, two months after the date of his provisional protection, applied for the great seal to be affixed. A week after- ward a caveat was entered, but the applicant did not, until six months from his original application had nearly elapsed, present a petition for the great PATENT, 375 seal. Held, tliat this delay was npt an objection to the sealing of his patent. Ex parte Bailey (Chan. App.), IV, 756. 7. B. applied for a patent, and obtained provisional protection on the 30th of March, C. on the 3d of April. B. applied for the great seal on the 31st of May ; C. obtained letters patent on the 22d of May, antedated, accord- ing to the usual practice, to the 3d nf April. The patents appearing to be partially for the same matter, Jield, that, whether the conduct of C. had or had not been fraudulent, the letters patent granted to B. must bear date on the 21st of May, and not on the 30th of March. lb. 8. Validity. Where a machine for which a patent had been granted was shown to produce work more expeditiously, more economically, and of a better quality than any previous machine, ?ield, that the patent could not be Invalidated on the ground that the machine was formed by the mere arrange- ment of common elementary mechanical materials, producing results of the same nature as those previously accomplished by other mechanical arrange- ments and construction. Murray v. Clayton (Chan. App.), Ill, 515. 9. The public exhibition of a machine in which there are defects, owing to which it proves an entire failure, does not affect the validity of a subsequent patent for a machine, in which, though similar in some of its details to the former, the defects are remedied so as to produce a serviceable machine. lb. 10. Contract to assign future rights. An agreement by the vendor of a patent to assign to the purchaser all future patent rights which the vendor may hereafter acquire of a like nature to the patent sold, is not contrary to public policy. . Printing, etc., Go. v. Sampson (Eq. C), XII, 841. 11. InMngement. The plaintiff was the assignee of several letters-patent for " Improvements in breech-loading firearms." The defendants, under a contract with the secretary of state for war, manufactured and delivered, ac- cording to the terms of the contract, certain rifles (which were accepted from the defendants by the secretary of war for the public service), and in so doing infringed the plaintiffs patent. Held, that, the contract being for the sale of articles for the defendants' own profit, and not as manufacturers of them as servants of the Crown, the principle that the Crown is at liberty to manu- fapture and to use the patented article did not apply, and the defendants were liable for the infringement. Dixon v. London 8m,aU Arms Go. (Q. B.), XI, 198. 12. Restraining infringement. An interim injunction will not be granted to restrain infringement of a patent several years old but never established by legal proceedings, unless there has been actual user of the patent for a con- siderable time. Plympton v. Malcolmson (Eq. C), XIII, 597. 13. Practice in patent suits. An order will not be made on the application of the plaintiff, in a suit to restrain an alleged infringement of his patent, for inspection of the defendants' works and machinery unless the court is satisfied that the inspection is essential to enable the plaintiff to prove his case. BatUy V. Kynoek (Eq. C), XI, 698. 14. The practice prescribed by the statute 15 & 16 Vict., c. 83, s". 41, with respect to furnishing bills of particulars in actions at law for the infringe- ment of letters-patent, ought to be followed in suits in equity as closely as circumstances will permit. Finnegan v. James (Eq. C), XI, 683. 376 PATENT. PAUPER. PAYMENT. 15. A plaintiff in a patent suit ought either to state in his bill the par- ticulars of the breaches complained of. or to deliver along with his bill a written statement of such particulars, which statement need not be filed. A defendant in a patent suit ought to set forth in his answer the particulars of any objections on which he relies. lb. 16^ Although upon the trial of questions in a patent suit the plaintiff's particulars of breaches should give the defendant full, fair, and distinct notice of the case intended to be made against him, it is not necessary, in the case of an alleged infringement of a patent for improvements of a particular article (e. g., cartridges), for the particulars to point out the precise portions of the specification alleged to have been infringed, when the thing alleged to be an infringement has been made an exhibit. Batley v. Kynock (Eq. C), XI, 813. See Nbgliqenck. PAUPER. 1. Who liable to support. By 43 Eliz., c. 3, s. 7, the father and grandfather, and the mother and grandmother, and the children of every poor * * « person, * * * being of suflnicient ability, shall, at their own charges relieve and maintain every such poor person. Held, that the word " children " does not include grandchildren ; and that a grandchild is not liable for the maintenance of his grandfather. Maund v. Mason, (Q. B.), VIII, 335. 2. Maintenance of criminal pauper. The 3d section of 3 & 4 Vict. , c. 54, provides that in the case of a pauper criminal lunatic removed to an asylum, an order of justices may be made on the guardians of the union comprising the parish of the lunatic's settlement to pay a weekly sum for the maintenance of such lunatic in the asylum. Pegge v. Guardians of Lampeter Union (Com. PI.), X, 308; reversing S.C., 11, 668. 3. A criminal lunatic having been removed to a private asylum under a warrant of the Secretary of State, in pursuance of 3 & 4 Vict., u. 54, the guardians of the L. union, to which the lunatic was chargeable, p&id to the proprietor of such asylum the sum of 16«. a week for the maintenance of the Innatic for fourteen years ; but they subsequently gave notice to the proprietor that they should not in future pay more than 11«. \d. a week. To this reduc- tion he refused to assent. The lunatic continuing in the asylum, the proprie- tor brought his action against the guardians to recover for the maintenance of the lunatic at the rate of 16s. a week. It was not shown that ,there ever had been an order of justices under 3 & 4 Vict., c. 54, s. 3, as to the maintenance of the lunatic Held, that it could not be inferred that the guardians had origin- ally entered into a contract to pay for the lunatic at the rate of 16s. a week until she should be removed from the asylum, nor could it be presumed that an order of justices had been made under 3 & 4 Vict., c. 54, d. 3, upon the guardians to pay that sum. lb. PAYMENT. 1. What is. Any iona fide transaction between a company and a share- holder which would support a plea of payment in an action against him for calls, such as the price of property sold by him to the company and voted to PAYMENT. 377 be credited to liim against Us stock subscription, is a payment in cash witbin tUe Companies Act of 1867. Spargo'a case (Cban. App.), V, 626. 2. To husband of cumuitant. An annuity was directed by will to be paid to H. while living, by equal half-yearly payments, and a proportionable part of the annuity to be computed to the day of H.'s death, from the last preceding day of payment " to the executors and administrators " of H. A proportionate part, after H.'s death, was paid to the husband of H., but before he had ad- ministered to her estate, and he died without having d6ne so, leaving his son his executor. The son administered to H.'s estate, and claimed the propor- tionate part, of the annuity. Seld, that the payment to H.'s husband was not a good legal payment, and that the son might recover the money. Semble, per Kelly, C. B., that the payment was not a good equitable payment. Mitchell V. Holmes (Exch.), IV, 490. 3. Application o£ The presumption that, where a variety of transactions are included in one general account, the items of credit are to be appropriated to the items of debit in order of date, in the absence of other appropriation, may be rebutted by circumstances of the case showing that such could not have been the intention of the parties. City Discount Co. v. McLean (Exch.), X, 363. 4. The plaintifFs were in the habit of discounting bills for S. In con- sideration that the plaintiffs would advance money to a certain amount, to S., on the deposit of a lease of S.'s premises, the defendant guaranteed any part of the money so advanced that might remain due after the realization of the leasehold security, the guarantee to last for a period not exceeding two years. Advances were made to S. by the plaintiffs in accordance with the guarantee, and bills were discounted therefor, which were from time to time renewed, but were never paid. Such advances were also charged in an account, in which were also entered a great number of other items of further advances on the discount of bills for S. in the usual course of business, largely in excess of the amount guaranteed, he being credited with the amount of the bills discounted, less discount and commission, and debited with those dishonored, renewals being treated in the same way. The account was balanced on several occa- sions before S. failed, and showed balances against S. of much less amount than the sums advanced under the guarantee, but these balances were arrived at by crediting S. with the amount of outstanding bills, many of which were not paid at maturity, and were included in the ultimate balance against S. Bills, discounted by S. with the plaintiffs after the advances under the guaran- tee, had been paid to an amount exceeding the sum guaranteed, but it did not appear that in point of fact the balance really due from S. to the plaintiffs after the date of the guarantee was ever less than the sum guaranteed. In an action on the guarantee to recover the moneys advanced under it, held, that under the circumstances of the case, it could not have been the intention of the plaintiffs and S., by the mode in which the account between them was kept, that the advance under the guarantee should be considered as satisfied by the items of credit therein, and consequently that the action was maintain- able, lb. 48 378 PEDDLEE. PBESONALTY. PETITION OF RIGHT. PEDDLER. Who is. Twelve ladies, of whom respondent was one, having purchased materials and made them up into articles of wearing apparel, each in turn for one month carried these articles about in a basket, called a missionary basket, from house to house, for sale. The ladies did not find the money to purchase the materials, but the money derived from the sales was applied toward the purchase, and the profits of the sales were devoted to a village school and religious purposes. Held, that the respondent did not come within the defini- tion of a " peddler " in s. 3 of the Peddlers Act, 1871, and was not liable under s. 4 to a penalty for acting as a peddler without a certificate. Oregg v. Smith (Q. B.), V, 349. See License. 4 PENALTY— &6 Contract; Statutes. PENCIL WRITING — 5ee Will. PERJURY- /S^e Criminal Law. PERFORMANCE — See Contkact ; Sale ; Specific Performance. PERPETUITIES— &e Will. PERSONALTY. Conversion to. Real estate was conveyed to trustees upon trust for two infants as tenants in common in tail, with cross remainders between them. A suit was instituted by the trustees against the eestuia que trust for the ad- ministration of the trust, and a decree was made after one of the infants had attained twenty-one, by which (the court being of opinion that a sale would be for the benefit of the infant defendant, and the adult defendant consenting) a sale was ordered. A sale was made under the decree, and the purchase-money paid into court ; and upon further consideration the adult's share was paid to him, and the infant's share carried to his separate account. The infant after- ward died without having attained twenty -one. Held, that the fund in court belonged to his legal personal representative, and was not to be treated as realty. Steed- v. Preeee (Eq. C), IX, 738. See CONVBltsiON ; Partnership ; Will. PETITION OP RIGHT. When will lie. For a breach of contract by government, resulting in un- liquidated damages, a petition of right will lie. Thomas v. T?ie Queen (Q. B.), XI, 134. PILOT — See Ships, etc. ; Statutes. PIRACY — See Criminai LXw ; Extradition. PLEADING. 379 PLEADING. 1. Declaration for deceit. In an action of deceit, whether against a person or against a company, the fraud of the agent may be treated, for the purposes of pleading, as that of the principal. Mackiiy v. Commercial Bank (Priv. C), IX, 302. 2. For negligence. Declaration, that the defendant was possessed of yew trees, the clippings of which he knew to be poisonous, and that it was the duty of the defendant to prevent the clippings from being placed on land not occupied by him ; that the defendant took so little care of the clippings that the same were placed upon land not occupied by him, whereby the horses of the plaintiff were poisoned. Held, on demurrer, that the declaration disclosed no facts from which a duty could be inferred in the defendant to take care of the clippings. Wilson v. Newberry (Q. B.), 1, 14. 3. Admission by pleading. A bill by a creditor to administer the estate of a testator alleged that the testator by his will gave to his wife, the 'defend- ant, the use for her life of half his estate, and appointed her guardian of his children ; that administration with the will annexed had been granted to the defendant, who was " the only legal personal representative and also heir of the undisposed of movables and immovables," and that she had received and entered into possession of all the real and personal estate of the deceased. Plea, that the defendant was not, nor had ever been, administratrix with will annexed or legal personal representative of the deceased. Held, that the defendant, by not denying, admitted that she had received and entered into possession of all the real and personal estate of the deceased, and if she was not administratrix, she was executrix de son tori, and the bill could be sus- tained. Plea ordered to stand for an answer, with, liberty lo except. Rayner V. Koehler (Eq. C), HI, 733. 4. Answer in redemption suit. A defendant in a redemption suit, who admits that the plaintiff is entitled to a decree, cannot refuse to set out in his answer his accounts as mortgagee. The rule as to answering applicable to redemption suits is the same as for any other suits for accounts. Elmer v. Creasy (Chan. App.), VIII, 735. 6. Plea of fraud. To a declaration on a check the defendant pleaded that he was induced to sign the check by the fraud of the plaintiff. Held, that the plea imported an allegation that the defendant, on discovering the fraud, dis- affirmed the contract, and that the defendant was not entitled to a verdict on a traverse of the plea, it appearing that he had not disaffirmed the contract. Bawes v. Harne8s(Com.< PI.), XI, 333. , 6. A plea that the plaintiff's claim is founded on a contract, giving the plaintiff a fraudulent preference over other creditors of a debtor in liquida- tion, must aver that proceedings in the liquidation had commenced or were imminent when the contract was entered into. MeKewam. v. Sanderson (Eq. C), V, 821. 7. Not executor. To a bill alleging that the defendant is executor of a tes- tator, and had, before probate, possessed himself of part of the personal estate, and praying for general sidministration, a plea that the defendant is not executor is a complete answer. Cary v. Hills (Eq. C), V, 727. 380 PLEADINGS. 8. Replication. To an action for a lump sum for freight by the master of a ship agaiust the. indorsee of a bill of lading the defendants pleaded, except as to 217 tons of cargo, that by the bill of lading the plaintiff acknowledged himself to have received a number of tons exceeding 217 tons, and that he did not carry or deliver the goods in the bill of lading mentioned, but only a portion, to wit, 217 tons (not alleging in terms that he did not carry all the goods delivered). The plaintiff replied (3) that he carried all the goods de- livered to him under the bill of lading, and that the goods so delivered and described in the bill of lading as weighing more than 317 tons in fact weighed 217 tons only, and that the weight mentioned in the bill of lading was a mere misdescription, inserted without fraud or default ; (4) that the bill of lading was made in France, and that, according to the law of France, the whole freight was payable, although part only of the goods was carried and delivered ; and (5) repeating the allegations of the third replication, and adding that the bill of lading was made in France, and that, according to the law of France, the whole freight was payable. On cross demurrers, held, that the plea was ambiguous, but that, assuming it to be good, the third replication was a good answer to it, for that, in an action for freight, the master is at liberty (not- withstanding 18 & 19 Vict., c. Ill, s. 3) to show that the cargo actually received by him differs in weight from that signed for in the bill of lading, at all events where the weight mentioned in the bill of lading is mere matter of measure- ment ; and that the freight being a lump sum the plaintiff was entitled to recover the whole. Blanchet v. Powell's Llantivit GoUieries Go. (Bxch.), VIII, 519. 9. Jleld, also, that the fourth and fifth replications were good. lb. 10. Demurrer for mi^oinder. Where the plaintiffs have a common interest in all the matters comprised in a suit, the objection of a defendant that he is not concerned in the whole subject-matter is one the allowance of which is in the discretion of the court, which will be guided by considerations of conveni- ence under the particular circumstances of the case. Goates v. Legard (Eq. C), XI, 669. 11. The administratrix of an intestate assigned a share in a business forming part of the intestate's estate to trustees, to pay the intestate's debts, and then for her, and subsequently assigned her own beneficial interest in the share to the same trustees on certain trusts. The next of kin, who were also co-heiresses of the intestate, and interested under his marriage settlement, filed a bill against the administratrix, the assignees in trust of the share in the business, and the trustees of the settlement, for administration of his real and personal estate, and of the trusts of the settlement. The assignees in trust of the share in the business demurred for multifariousness. Held, that the vari- ous interests of the infants could be most conveniently ascertained in one suit, and, consequently, that the demurrer must be overruled. lb. 12. Construction. A bill stated that, by an indenture made between A., of the first part, B., of the second part, and the several other persons whose names and seals were, or were intended to be, thereunto subscribed as cred- itors of A., of the third part, A. assigned all his personal estate to B., upon trusts, for the creditors of A. Held, on demurrer, that this was not an aver- ment "of the execution of the deed by any of the creditors. Olegg v Rees (Chan. App.), I, 433. PLEADINGS. PLEDGE. 381 13. Foreign pleadings. Where the rules of pleading in a court in a foreign country having jurisdiction over British subjects are by petition and answer, and the petition is to contain a narrative of the facts relied on, divided into paragraphs, and the answer is to show the nature of the defense, and to deny the material allegations intended to be questioned, and allege any matter of fact not stated in the petition on which the defendant relies, the several para- graphs of the answer are not to be treated as separate pleas, but all should be read together. Hart v. Qumpach (Priv. C), IV, 138. 14. Amendment. Where there is a variance between the declaration and the proof as to a breach of a covenant for quiet enjoyment, which, if amended according to the facts, vfould entitle the plaintiff only to nominal damages, and he has once refused to amend upon the terms offered, he will not be allowed to amend afterward on the argument of a demurrer. Spoor v. Oreen (Esch.), Vm, 540. See CBiMiNAii Law. PLEDGE. 1. By bankrupt. A., being a factor and warehouse keeper, by letter of hypothecation pledged to B. certain wools to secure a sum of money. No de- livery of the warrants for the wools was made, but a promise to deliver them on the following morning was added at the foot of the letter. After being pressed daily to deliver the warrants, A. absconded. B. thereupon obtained from A.'s clerk the keys of the warehouses and possession of the wools. A. was a few days afterward adjudicated bankrupt. The wools belonged to third parties, who had, however, been under advances from the bankrupt, and made no claim. Held, that the letter created a good equitable charge ; that it did not require registration under the Bills of Sale Act ; that the goods were not in the order and disposition of the bankrupt ; that the transaction was a valid pledge under the Factors A,ct, and that B. had a good title against the trustee in bankruptcy. Ex parte North Western Bank (Eq. C), V, 719. 2. By executrix. A widow, who was executrix and sole legatee of her deceased husband, pledged a picture belonging to tlie estate as security for her own debt, after a decree had been made in a creditor's suit for an accounting and the administration of the personal estate, which suit was registered as a lis pendens, but no receiver was appointed nor any injunction granted to restrain the executrix from dealing with the assets. Held, that the pledge was valid. Berry v. Oijbbons (Chan. App.), VI, 588. 3. Redemption. The 16th section of the 39 and 40 Geo. 8, c. 99, provided that in case the pawn tickets for goods pledged were lost, mislaid, destroyed, or fraudulently obtained from the owner thereof, and the goods remained un- redeemed, the pawnbroker should, at the request of the person, claiming to be the owner of the goods, deliver to such person a copy of the ticket and a form of affidavit (now a declaration) stating the circumstances, and the person having obtained such copy and form of affidavit should thereupon prove his property in such goods to the satisfaction of a justice of the peace, and should verify on oath or affirmation before the said justice the truth of the particular circumstances attending the case mentioned in the said affidavit, " where- upon " the pawnbroker should suffer the person so proving such property to the satisfaction of such justice as aforesaid, and making such affidavit or 383 PLEDGE. POWER. affirmation as aforesaid, on leaving the copy of the ticket and the affidavit with the pawnbroker, to redeem such goods and chattels. Held, that, where a person having lost the ticket for goods pledged by him had, in accordance with the section, procured from the pawnbroker a copy of the original ticket, and a form of declaration, proceeded with the same before the magistrate, and, having proved his title before him, straightway returned to the pawn- broker, and showed him the declaration which he had made, he was not bound to redeem the goods immediately, but might redeem them at any time at . which he might have redeemed them if he still held the original ticket, and that the pawnbroker was not justified in the meanwhile in delivering the goods to a person producing the original ticket. Burslem v. Attenboroxigh (Com. PI), IV, 363. See Bill of Lading ; Pactok. POSSESSION — See Noticb ; Sale. POWER. 1. Of appointment. Where an appointment is made to take effect out of b. trust fund generally, and afterward an appointment is made of a specific portion of the trust fund, the portion of the fund not specifically appointed must be first applied in satisfaction of the first appointment ; and the specifically appointed portion is only to be resorted to in the event of a deficiency. G., having, under his marriage settlement, a power to appoint among his children, appointed a portion of the trust fund to his daughter L. for life, and after her death as she should by will appoint. Held, that the power of appointment by will conferred on the daughter was void for remoteness. Morgan v. Qronow (Eq. C), VI, 604. 2. G. also appointed another portion of the trust fund upon such trusts to take effect after the marriage of his daughter E. (then unmarried) as she should by deed or will appoint, and in the meantime upon trust for her for life, and after her death as she should by will appoint. E., upon her marriage, purported to appoint the fund to the trustee of her marriage settlement. G. afterward executed a deed poll by which, after reciting the appointments in favor of I., and E., and also other appointments, he, in exercise of the power given to him by his marriage settlement, confirmed the several appointments appearing by the recitals to have been previously made, and directed and appointed that the trustees of the settlement should hold the trust funds upon the trusts thereinafter mentioned : and he reserved to himself a' power to revoke the direction and appointment tliereby made, which power of revo- cation G. afterward exercised. B. also afterward made a second appoint- ment to the trustees of her marriage settlement of the fund. Held, first, that the original appointment in favor of E. was void for remoteness, and could not be supported as an appointment to E. and a resettlement by her. lb. 3 Secondly, that the subsequent deed poll operated as a reappointment of the fund in favor of B. lb. 4. Thirdly, that the power of revocation extended only to appointments made by way of "direction and appointment " and not to appointments made by way of " confirmation ; " and, consequently, that the fund appointed in POWEE. 383 favor of B. passed to the trustees of her marriage settlement under the second appointment executed by her. lb. 6. Exercise of. Where the re is an appointment authorized by a power, but with a superadded wish, desire, or condition, not authorized by the power, the appointment is valid ; but the superadded wish, desire, or condition necessarily fails unless the appointee elects to give effect to it, which he may do without vitiating the appointment. McDonald v. McDonald (Sc. App.), XHI, 154. 6. A mere purpose or direction unwarranted by the power, though it may have operated as a motive to the appointment, will not bind the ap- pointee, lb. 7. A husband and wife, under a power in their ante-nuptial contract, appointed that £25,000 should be " settled and belong to their eldest son, and other members of their family in succession, being heirs in possession of their entailed estate." Held, that the eldest son and heir in possession of the en- tailed estate was entitled to the £35,000 as absolute fiar, free not only from the fetters of the entail, but also free from any claim on the part of heirs coming after him, the money as personalty not being within the entail statute of 1865. lb. 8. Where, under a special power, an appointment is made giving an invalid power of appointment with a gift over in certain events, the gift over is not invalidated by the invalidity of the power. Slark v. Dakyns (Chan. App.), XI, 438 ; affirming S. C, V, 857. 9. A power to appoint is not bad because it may be bo exercised' as to render the appointment void as being too remote. lb. 10. A power to appoint to children absolutely may be exercised by giving a child an estate for life with power to appoint by will. lb. 11. A testator gave certain property upon trust for his granddaughter A. for life, and after her death for her children, or some of them, as she should by deed or will appoint. A., by her will, appointed one-fifth of the fund to each of her five children (all of whom were living at the death of the testator) for life, and directed that, after the death of each child, the share in which the child had a life interest should be held in such manner as the child might by will appoint, with limitations over in default of appointment in favor of the survivors in different events. Meld, a. good exercise of the power of ap- pointment, lb. 12. A testator, having a limited power to appoint the income of £5,000 consols to his wife for her life, and having no other power, by his will, which contained no reference to the power, after first directing payment of his debts and funeral expenses, devised and bequeathed the residue of his estate belong- ing to him at the time of his decease, or over which he might have any power of disposition or control, to his wife, her heirs, assigns, and legal representa- tives forever in full property. Held, that the power was well exercised. Matter of Tea/pe'g Trusts (Eq. C), VI, 801. 13. B., being trustee of shares in au unlimited company for Mrs. P., a married woman, joined with Mr. and Mrs. F. in a deed whereby the shares were assigned to L. upon trust for Mrs. F. during her life for her separate use, and after her death as she should by deed or will appoint Shortly afterward 384 POWER. Mr. F. died, and subsequently R. transferred the shares to Mrs. F., who ex- ecuted the deed of transfer. Held, that the deed of transfer was an exercise in favor of Mrs. F. of the power of appointment reserved to her. Marler v. Tommas (Bq. C), VII, 636. 14. Husband and wife haying, under their marriage settlement, a joint power of appointment over personalty in favor of the children of the mar- riage, of whom there were three survivors, appointed one-third of the fund to trustees upon such trusts as H. (one of the sons), by deed, executed with the consent of the father during his life, and after his death, with the consent of the trustees of his will, or by will, should appoint ; and in default of such ap- pointment, upon trust for H. for life, or until banliruptcy or assignment, such bankruptcy or assignment being limited to twenty-one years after the death of his surviving parent); and after H.'s death, upon trust for his executors or administrators, as part of his personal estate ; but if such interest should be previously determined, then upon the trusts therein mentioned. Seld, that the appointment to such uses as H. should appoint, with consent of the trustees, was void, because such consent was made an inseparable condition of the exer- cise of the power, but that the limitation over in default of appointment by H. was valid, and gave H. an absolute interest in the share, subject to the con- tingency of his committing a forfeiture within the prescribed period. TTisfiJ V. Sadler (Chan. App.), V, 636. 15. Husband and wife had a joint power of appointment over real estate among the children of the marriage for such estates and interests, and in such manner as they should think tit. In default of and subject to such appointment the estate was to be held subject to the parents' life interest, in trust for all the children to whom no share had been appointed, to vest in them at twenty-one or marriage. The settlement contained a power of sale and exchange, but no trust for absolute sale. The husband and wife appointed two-fourths to H. and another of their children, the appointment to H. being in the same terms as that of the personalty, and declared that the shares of any person interested in the capital arising from any sale under the settlement sliould be of the quality of personal estate. Held, that the appointers had power to convert the real into personal estate, and that H. took an absolute interest in his share subject to the same contingency as in the case of the per- sonalty, lb. 16. Appointment by vrill. The doctrine, viz., that a gift of legacies, fol- lowed by a gift of the residue of the real and personal estate, charges the legacies on the residuary real estate, is applicable to a gift of legacies followed by a gift of residue of all the property of the testator, and over which the testator has a power of appointment, though the power be special and non- exclusive : and in such a case the legacies are charged on property subject to a power of appointment. Oainsford v. Dunn (Eq. C. ), IX, 607. 17. ^ A testatrix, having power to appoint certain funds by will in favor of A., B., C, D. , and E., in such parts, shares and proportions as she might think fit, and having no other power, by her will gave legacies of £5 each to A., B., and C, and all the residue of her property, of whatever kind and wheresoever situate, and over which she had any power of appointment, to D. and E., and died leaving some personal estate of her own. Held, that the wUl was a valid execution of the power. lb. POWER. 385 18. Appointment, effect of. A testator gave his residuary estate to trustees upon trust to pay tlie income to his daughter for life for her separate use, and after her death to pay the fund to the children of the daughter as she should by deed or will appoint, and in default of appointment among them equally. The daughter appointed by deed the whole of the fund among her children, giving the plaintiff, who was one of them, a specified sum for her separate use absolutely. The plaintiff, after the death of her grandfather, and before the date of the appointment by her mother, married a Frenchman domiciled in France. He died before the date of the appointment, and there was one child only of the marriage. There was no settlement on the marriage, and the French law of community applied, under which the child became en- titled, in the absence of any contrary declaration by the donor, to half the property acquired by her mother during the marriage. Held, that the plaintiff must be considered to have acquired the appointed fund from the date of the appoilitment only, and that the fund, not having been acquired during the marriage, did not become subject to the law of community. De Serre v. Clarke (Eq. C), XI, 554. 19. Held, also, that the fact of the gift being expressed to be for lier separate use was a sufficient declaration to exclude the law of community. lb. 20. Defective execution confirmed. A lady having a power of appMnt- ment by deed or will over certain leasehold property, which, in default of ap- pointment, was vested absolutely in her, wrote and signed an unattested paper, by which, after referring to the property in terms sufficient to identify it, she proceeded : " If I die suddeuly, I wish my eldest son to have it. My inten- tion is to make it over to him legally if my life is spared." Slie died within three months, leaving this memorandum among her papers, and without hav- ing otherwise exercised her power. Held, that the memorandum was a defect- ive execution of the power, and that equity would relieve against the defect in favor of the eldest son.' Kennard v. Kennard (Chan. App.), IV, 860. 21. Ijapse by death of appointee. The donee of a testamentary power of appointment over a fund of £7.000 exercised the power by appointing sums of £1,995, £4,000, £4,000 and £5, amounting in all to £10,000. The appointee of one of the sums of £4,000 died in the testator's life-time. Held, that the other appointees, and not the persons who would take in default of appoint- ment, were entitled to the benefit of the lapse. Bales v. Brake (Chan. Div.), XV, 703. 22. Failure of purpose. By a separation deed a sum of money was directed to be held by trustees upon trust for the wife for life, and after her death, as to four-sixth parts thereof, for F. W., one of the children of the marriage, who was then an officer in the army, during his life, and after his death for his children. And it was declared that it should be lawful for the trustees, if, in their discretion, they should think fit, to .apply any portion of the fund, not exceeding £3,000, in or toward effecting the promotion of F. W. in the army. The trustees applied £850 in the way pointed out by the deed, but in conse- quence of the abolition of purchase of commissions in the army, under the royal warrant of the 20th of July, 1871, no further sum could be applied for the same purpose. Held, that, the purpose for which the power was given to the trustees having failed, the residue of the sum of £3,000 could not be raised 49 386 PEACTICE. out of the fund and applied in any manner for the benefit of F. W. In re Wm-d's Trust (Chan. App.), Ill, 597. Bee Will. PRACTICE. 1. Suing by next friend. A person who has become permanently insane, though not so found by inquisition, can sue in equity by his next friend for the protection of his property. Jones v. Lloyd (Eq. C), IX, 793. 2. Service on defendsint. If the respondent be in prison, the court will not be satisfied with substituted service of the petition and citation to be made on an oflBcial of the jail in which he is confined, unless there is a reasonable probability that the contents of those documents will thereby become known to the respondent. Bland v. Bland (Prob. & Div.), XII, 688. 3. on corporation. The defendants were a Scotch corporation, with run- ning powers over an English railway to Carlisle, and their only officer in Eng- land was a booking clerk at a station at Carlisle, whose sole duty was to issuQ tickets to travelers. The station at Carlisle was wholly under the control of the English company, but the defendants had use of it at a rental payable to that company. The defendants' head office was in Scotland. Held, that the booking clerk was not a head officer or clerk of the defendants who cotild be properly served with a writ issued against the defendants. Mackereth v. The Glasgow, etc., Sailway Co. (Exch.), V, 343. 4. A writ of summons against a foreign corporation having an office and doing business in England may properly We served on the head officer of the English branch ; and it is not necessary to serve it on the officer at the head office abroad. Newby v. Van Oppen & Golfs P. F. Manuf. Go. (Q. B.), I, 323. 5. by publication. In a foreclosure suit by a mortgagee who had been in possession twelve years, against several defendants, trustees and beneficia- ries under the will of the original mortgagor, some of whom were out of the jurisdiction in America, the bill having been ordered to be taken pro eonfesso against the defendants out of the jurisdiction, and at the hearing none of the defendants appearing, service of copy of the decree upon the defendants out of the jurisdiction was permitted to be made by advertisement in two London and one American newspapers. Hyde v. Large (Bq. C), XI, 666. 6. Substituted service of copy of bill allowed on the medical officer of the asylum in which a defendant of unsound mind, but not so found by iuquisi- tion, had been placed, on an affidavit that the medical officer refused to allow any person to see the defendant or to serve him with legal papers. Maine v. WUson (Eq. C), VII, 590. 7. In an action against the owner and master of a vessel for specific performance of a contract to sell her, the owner being in a foreign country, substituted service on the master for the owner was held proper and effectual. Hart V. Mermig (Chan. App.), VII, 434. 8. In a suit against five partners, three of whom had entered appear- ance, and the other two were out of the jurisdiction and had not, substituted service of a notice of motion for an injunction and for the appointment of a PEACTICE. 387 receiver, on any of thfl three partners for the two, was allowed. Leeae v. Mar- tin (Eq. C), I, 566. 9. Appearance by guardian. The plaintiflf and his sister had given a mortgage to M., a solicitor, and the bill was filed against M. and the sister to have accounts taken of what was due, and for redemption. The sister was alleged to he of unsound mind, though not found so by inquisition. The plaintiflfs solicitor did not serve the bill on the sister, but, by the plaintiff's in- structions, assumed to act for her, entered an appearance in her name, and obtained at the rolls the appointment of a guardian ad litem. The appear- ance and the appointment of a guardian were discharged by Wickens, V. C, on evidence |that the sister had sufficient capacity to authorize a solicitor to act for her, and that she had authorized M. so to act. Held, on appeal) that whether the capacity of the sister was proved or not, the order of the vice- chancellor was right, for that the appearance and the appointment of a. guardian founded on it were irregular. Gamps v. Ma/rshaU (Chan. App.), V, 670. 10. Defending in forma pauperis. A farming tenant, who has valuable crops on his farm, but no other property, will not be admitted to defend in ■ forma pauperis, although he has in the suit been restrained from selling or removing the crops. Bidgway v. Edwards (Chan. App.), VIII, 787. 11. Change of place of trial. The power given to a defendant under the County Court Act, 1867, to apply to have a case tried in a county court where the claim indorsed on the writ exceeds £50, but such claim has been reduced by payment to a sum not exceeding £50, does not apply where the payment is made after action. Osborne v. Hamburg (Ex. Div.), XV, 397. 12. Discovery. In a suit in which the genuineness <5f the signature of a testator to a certain document was one of the issues to be tried, the defendant was ordered to produce on affidavit any checks in his possession signed by the testator between specified dates. The defendant produced a great number of checks, stating in his affidavit that they were all the checks in his possession signed by the testator, but that he had other checks drawn on the testator's bankers, which he did not produce because they were forgeries. Held, that the plaintiffs were not entitled to any further particulars, or to production of the checks alleged to be forged. Wilson v. Thornhury (Eq. C), IX, 641. 13 Quaere, whether a document required only for comparison of hand- writing is a relevant document which a defendant is bound to specify or produce 1 lb. 14 A defendant, shortly after filing an affidavit as to documents, entered into liquidation of his affairs by arrangement. Some time afterward he changed his solicitors. The plaintiff applied for production of the docu- ments, which the defendant resisted on the ground that they were in the pos- session of his former solicitors, who claimed a lien on them. Held, that an order for production must be made, with liberty to apply in case the defend- ant found it impossible to produce the documents, the plaintiff not to attach the defendant without leave of the court. Vale v. Oppert (Chan. App.), XII, 748. 15. Pull discovery. Although, in considering whether the rule that a de- fendant who submits to give discovery must make full discovery is to be ap- 388 PEACTICE. plied, the court does not in general weigh nicely the' materiality of the dis- covery sought ; still, if the discovery is such as might be used for purposes prejudicial to the defendant irrespective of the suit, the court vpill look nar- rowly to the question whether there is a reasonable prospect of its being of material service to the plaintiff at the hearing. Carver v. Pinto Leite (Chan. App.), 1, 450. 16. The defendants, in a suit to restrain infringement of trade-marks, having sealed up certain parts of entries and letters admitted, to relate to the matters in question in the cause, were ordered by the Duchy Court of Lan- caster to unseal the names of customers, and of places, and the prices, forming parts of such entries, and to unseal the portions of letters and copies of letters which contained the names of the writers and of the persons to whom the let- ters which were copied were sent, and the places to and from which the letters were sent, and the description of the marks to be placed, or which had been placed, on the goods referred to in such letters. Held, on appeal, that the de- fendants ought not to be compelled to disclose the names of customers, or the names of persons to or from whom letters were sent or received, or any prices, inasmuch as such discovery might be used in a manner prejudicial to the defendants in their trade, and was not likely to assist the plaintiffs in making out their case at the hearing. lb. 17. Discovery when refused. A foreign government employed K. & P., as agents in London, to bring out a loan on the English market, and to issue scrip certificates to the subscribers, and to exchange such scrip for bonds upon the amount subscribed being fully paid. The government employed E. & Co. as their agents and bankers, with power to receive from K. & F. the sums sub- scribed. Subsequently bonds in the hands of K. & F. were pledged by the President of the Government to E. & Co. , but the validity of this security was disputed by the government. The government filed a bill against K. & F., E. & Co., and others, for accounts of the dealings connected with the issue of the loan. Upon motion that a member of the firm of K. & F., upon cross-examination in the cause, should produce certain documents, to the production of which E. & Co. objected, held, that the scrip certificates and the scrip-book in which the certificates were entered must be produced, but not the bonds themselves, since the foreign government might, by knowing the numbers of the bonds, use their information to the prejudice of E. & Co., their mortgagees, and the knowledge of the numbers of the bonds was not shown to be relevant to the suit. Costa Mica v. Erlanger (Eq. C), XI, 653. See S. C, XV, 690. 18. Privileged documents. Where an accident occurs on a railway and the ofiBcials of the company, in the course of their ordinary duty, make a report to the company, whether before or after an action brought by a person injured, such report is not privileged. But when a claim has been made, and the com- pany seek to inform»themselves by a medical examination as to the condition of the person making the claim, the report made to them is privileged. Skin- ner V. Great Northern By. Co. (Exch.), X, 462. 19. In order to render a report made by medical men to the company privileged, the person so examined, his attorneys, or friends acting for him, should have notice that the examination is being made on behalf of the com- pany, or the circumstances should be such that it may be understood or fairly PEACTICE. 389 inferred that it is made for tlieir guidance and is confidential. Maiden v. Gh-eat Northern By. Co. (Exch.), X, 464. 20. Letters written by persons who may be called as witnesses to the attorneys of the company, or by such attorneys to them, are not necessarily privileged, but prma/aae they are BO. lb. 21. Where, in answer to interrogatories, the defendant admits that he has certain documents in his custody, possession or power, it is not competent to him, upon an application for leave to Inspect and take copies of them, to urge that others have an interest in them, and, therefore, he cannot pro- duce them. Plant v. Kendrick (Com. PI.), XIV, 519. 22. Discovery by foreign government. When a foreign government suing in the English courts Is ordered to make discovery, the necessary steps for that purpose should be taken by some person having sufficient knowledge of the subject-matter of the discovery sought. Bepublie of Liberia v. Boye (App. C), XV, 44. 23 An original bill was filed by a foreign republic, and a cross bill was filed by one of the defendants against the republic and one of its officers made a defendant for the purpose of discovery. Hdd, that the court would not order proceedings in the original suit to be stayed until the officer of the re- public had appea/ed. Bepublie of Costa Biea v. Erlanger (Chan. Dlv.), XV, 690. 24. Semible, that the suit might be stayed until the republic had named a proper person to give discovery, and that the rule is the same in the case of a corporation. lb. 25. The proceedings in an original suit by a foreign government were stayed until the plaintiffs in that suit had given the name or names of persons who could be made defendant or defendants in a cross suit by the same parties against the foreign government, for the purpose of making upon oath the dis- covery required. Peru v. Weguelin (Eq. C), XIll, 679. 26. Interrogating defendant. The defendant was engaged as valuer on the part of the plaintiff to ascertain the sum to be paid by the latter ou the pur- chase of the good will, etc., of a business. In an action against him for alleged negligence and want of reasonable skill in the conduct of the valuation, held, that the plaintiff was entitled under s. 51 of the Common Law Procedure Act, 1854, to interrogate the defendant as to the basis of his valuation. Turner v. Goulden (Com. PI.), VIII, 384. 27. Where a plaintiff files a bill founded on the alleged agency of the defendant, which is in question in the suit, the defendant will not be com- pelled to answer interrogatories as to what appear to be his private transac- tions. Great Western Colliery Co. v. Taeker (Chan. App.), VIII, 980. 28. A defendant in a redemption suit, who admits that the plaintiff is entitled to a decree, cannot refuse all discovery before the hearing as to conse- quential matters of account, but must answer interrogatories in relation thereto. Elmer v. Creasy (Chan. App.), VIII, 735. 29. In an action for libel, on an affidavit that the libel was in a printed handbill to which there was no printer's name, that the plaintiff could not ascertain who was the printer, and that the defendant had been seen with a person who affixed some of the handbills, and was also seen posting one him- 390 PEACTICE. self, the courtj allowed interrogatories to be administered to the defendant as to whether he had not been instrumental In printing and publishing the libel. Greenfield v. Realy (Q. B.), XII, 273. 30 A testator gave real estates to trustees in trust for his son for life, with a gift over if he charged or incumbered them. One of the trustees filed a bill for the administration of the trusts of the will, and afterward filed a supplemental bill against certain defendants, who were in possession of part of the estates, alleging that they claimed under a charge made in their favor by the tenant for life, which operated as a forfeiture. The defendants were interrogated as to the particulars of all charges in their favor, if any, or the property of the testator. The defendants stated in their answer that they claimed under no charge made by the tenaoit for life, but under a lease at a rack rent which he had granted to a lessee, who had mortgaged the lease to them. The plaintiff excepted to the answer because the defendants did not set forth the date of the lease. Held, that the plaintiff, being a trustee, was entitled to know the particulars of those who claimed to be his cesiuis que trvM ; and the exceptions must, therefore, be allowed. Hurst v. Hurst (Chan. App.), X, 733. 31. In an action by executors against the makers of a promissory note given to the testator, the defendants pleaded, £ts to part of the claim, payment to the testator in his life-time. Held, that the plaintiffs might interrogate the defendants as to the time and place at which and the circumstances under which the alleged payment took place. Hills v. Wates (Com. PL), X, 359. 32 A petition for winding up a company having been presented by a shareholder, the secretary filed an aflSdavit in opposition to the petition, and was cross-examined by the petitioner before a special examiner. On his cross- examination he was called on to produce the books of the company, which he refused to do. Malins, V. C, accordingly, on the application of the peti- tioner, made an order, that the company, by their secretary, should produce before the special examiner, upon the cross-examination of the secretary, the books and papers which they had had notice to produce. Held, that the petitioner had a right to the production of the company's books and papers on the cross-examination of the secretary for the purpose of testing his evidence, but for no other purpose ; and that the order of Malins, V. C, was right both in form and substance. Matter of Emma Silver Mining Co. (Chan. App.), XII, 701. 33. Question for jury ; construction of contract. In an action upon a con- tract for the purchase of a quantity of maize •' for shipment in June and July, 1869 (old style), seller's option," held, by Maktin, B., and Lush, J., that the question whether cargoes, the loading of which was commenced in May, but not completed until the 4th and 6th of June, when the bills of lading were made out and tendered, were "June shipments "in the ordinary business sense of the term, was properly left to the jury. Alexander v. Vanderzee (Com. PI.), Ill, 379. 34. On a sale of goods the invoice expressed that they should be paid for in " from six to eight weeks." The sale took place on the Ist of May, and the action for the price was commenced on the 18th of June. At the trial the judge left it to the jury to say what was the mercantile meaning of the ex- PEACTIOE. 391 pression " from six to eight weeks ; " and they found that the action had not been brought prematurely. The judge, being of the same opinion, directed a verdict for the plaintiff. Held, that the question was properly left to the jury, and the verdict right. Ashforth v. Bedford (Com. PI.), VII, 135. 35. Negligence. The question of negligence is one peculiarly within the 'province of the jury, and should be left to them, except where the facts are well ascertained and indisputable, leaving to the judge a mere definition of what is the defendant's legal duty. Bridges v. Dweciors of Jforth London By. Co. (fl. of L.), IX, 165. 36. Issue out of chancery. An issue directed by the Court of Chancery, in a case where the bill charges the defendant with fraud in the purchase of land, is not defective in form because it directs the defendant in the suit to support the affirmative of the issue and show that the purchase, which is the subject of the issue, was made bona fide. Browne v. McGlintoek (H. of L.), VIII. 52. 37. The judge in equity having directed an issue, possesses a , larger discretion than does a court of common law in determining whether the find- ing of a jury upon the issue is satisfactory. And a. court of appeal will not interfere with the exercise of this discretion unless upon very strong and manifest reasons. lb. 38. On appeal in chancery from the decision of the master of the rolls refusing to grant an injunction to restrain the carrying on of business by a large colliery company, on the ground that they create a nuisance, it would not be a satisfactory mode of dealing with the case to send experts to examine the facts and report, nor, after the lapse of considerable time, could a jury satisfactorily determine the condition of things at the commencement of the suit. Nor would it be just to the defendants to put them to the expense, where the plaintiff has chosen his own tribunal, and the decision is not final. Salmn v. North Brancepetk Coal Oo. (Chan. App.), X, 685. 39. Accounting. In an action in equity by a builder against the owner, the building erected by him and the architect who acted as agent for such owner, to have an accounting and judgment for an amount claimed by him for extra work done under the direction of the latter, where many minute claims and counterclaims were involved. Seld, that the account was too complicated to be taken at law, and that the- equity court had jurisdiction and should take such account. Kimberley v; Dick (Eq. C), I, 511. 40. Stay — another action pending. A., an Englishman domiciled in France, entered into a contract in France with B., a Frenchman, for carrying out jointly certain mercantile undertakings. In the course of the trans- actions large sums of money came into the hands of C. and D., foreign mer- chants in business in London. A. filed a bill against B., C, and D., alleging that, under the contract with B., he was entitled to participate in the profits of the undertaking, and praying for an account from C. and D., of the money in their hands, and that they might be restrained from handing it over to B. The defendants moved to stay all further proceedings in the suit pending certain proceedings in the French courts instituted by A. against B., in which a construction would be put upon the French contract. Held, that there being portions of the relief souglft, as to which the defendants were bound to 392 PEACTICB. answer, the motion, wbich was in the nature of a demurrer, could not be sustained, and must be refused with costs. Wilson v. Ferrand (Eq. C), I, 734. 41. brought without authority. Where an attorney brings an action without the authority of the plaintifiT, the plaintiff is entitled to have the proeeediuga stayed without payment of costs. Reynolds v. Howell (Q. B.), VI, 139. 42. frivolous action. An action to recover damages for the refusal of the clerk of the petty bag office to seal a writ of error in a, case of misde- meanor, without waiting for the fiat of the Attorney -General, is frivolous and vexatious, and will be stayed on motion of the defendant. Castro v. Murray (Exoh.), XIII, 358. 43. When not granted. A defendant, in a suit in chancery, gave judgment . in an action at law "to be dealt with as the court shall direct." Held.XlasA although liberty to enforce the judgment will not generally be given until the merits of the case are disposed of, the court is not precluded from allow- ing execution to issue at an earlier stage of the cause, and will do so where the judgment is likely to prove valueless if not enforced at once, and the debtor does not appear to give any explanation. Hodges v. Fineham (Chan.'Div.), XV, 633. 44. Interlocutory orders in general. The court has jurisdiction to make any interlocutory order which is reasonably asked as ancillary to the adminis- tration of justice at the hearing. Smith v. Peters (Eq. C), XV, 463. 45. An order to bring money into court, to remain in medio, ought not to be' made upon a mere allegation in the bill that there is a question to be tried at the hearing. Gunn v. Bolckow (Chan. App.), XIV, 739. 46. A defendant, whose affidavit filed on an inquiry discloses that he has money in his hands, may be ordered to pay it into court after decree and before further consideration. Dunne v. English (Eq. C), X, 837. 47. Amendment after verdict. A declaration in an action by one tenant in common against his co-tenant, containing several counts in trespass and one count in trover, for entering the common field and taking and carrying away hay therefrom, cannot be amended after judgment in favor of the defendant so as to convert it into an action for an account under 4 Anne, u. 16, s. 37. Jacobs V. Seward (H. of L.), II, 496. 48. Motion after abatement by death of plaintiff. In an action against the defendant for negligently allowing an area to remain open in a highway, whereby the plaintiff (an infant, suing by next friend) was injured, the case was tried after term, and a nonsuit directed, on the ground that there was no evidence of negligence ; the judge staying execution to enable the plaintiff to move to set aside the nonsuit. During the vacation the plaintiff died, In the following term, the plaintiff's next friend obtained a rule nisi to set aside the nonsuit, on the ground that there was evidence of negligence, and the defendant a rule nisi to tax his costs, or why the court should not allow judg- ment to be signed for him nuTic pro tunc. Held, that the action having abated by the plaintifTs death, a motion to set aside the nonsuit could not be enter- tained. As, however, the judge by staying execution had intimated that he PRACTICE. 393 regarded the question as to the defendant's liability a doubtful one, judgment nunc pro tunc ought not to be entersd for the defendant. Tlie defendant's rule must be discharged, without costs, and the plaintiff's rule allowed to drop. Hemming v. Batchelor (Exch.), XII, 515. 49. Dismissal of bill. A bill to set aside a deed containing charges of fraud, which the court deems not tojbe proved, will be dismissed as to those charges, but need not be dismissed altogether, if there are other charges which the court deems to constitute what amounts to great irregularity and legal fraud, and to require the granting of the relief prayed for. HiUiard v. Mffe (H. of L.), IX, 27. 50 Where, in a bill to set aside the grant of an annuity made by A. to B., and charged upon A.'s land, with also a personal covenant for payment, the plaintiff is himself the devisee as well as residuary legatee under A.'s will, he ought, under the 20 & 21 Vict. , c. 79, s. 68 (Ir.), to give notice to the other party that he intends to give in evidence, as proof of the devise or testa- mentary disposition, the probate of the will. But if he should fail to give this notice, the omission would only create a technical difficulty in the case, and the court might, properly, and would adjourn the hearing to give an opportunity to remove that technical difficulty. lb. 51. The Court of Chancery has not only full power to stay all proceed- ings in a suit till the plaintiff has made a discovery which it has called upon him to make, but, if not satisfied that its order has been properly obeyed, may dismiss the suit itself ; and where money has been paid into court, may direct the payment of that money out of court to the party entitled to it. Republic of Liberia v. Roye (App. C), XV, 44. 52. Per Lord Hathbrlet : When any step ought to be taken in a cause, which in the judgment of the court is necessary in order to facilitate the decision of the cause, and default is made, the party in default, if plain- tiff, is liable to have his bill dismissed. And this is not a matter of first im- pression, lb. 53. Argument on appeal. On the argument of a case in the court of appeal two counsel will be heard on either side. Sneesby v. Lancashire, etc., Ry. Co. (Q. B. Div.), XV, 176. 54. Taking dcctmients from files. Certain documents relating to the ship- ment of goods at Bombay having been returned annexed to a commission, issued to that place for the purpose of taking evidence in an action brought in this court upon a policy of insurance on part of the goods so shipped, and a mandamus having issued for the examination of witnesses in an action brought in the Court of Exchequer upon a policy on other goods alleged to have been shipped on board the same vessel, on the execution of which writ the same documents would be required for the purpose of identification or otherwise, application was made to this court for leave to take them from the office for the purpose of their being sent out to Bombay with the mandamus. The court refused the application, inasmuch as the case in this court was sub judiee, and the documents in question might still be required here ; but they suggested an application to the Court of Exchequer for leave to annex to the mandamus office or photographic copies. Matter of Stephens (Com. PI.), VIII, 481. 50 394 PEINCIPAL AND AGENT. 56. Costs, enforcing payment of. The respondent, having obtained an order upon the petitioner to pay to her or her attorney a certain amount of taxed costs, endeavored to enforce such order by a writ of fl- fa-, but failed in recovering them. The court ordered the proceedings in the divorce suit to be stayed until the taxed costs had been paid by the petitioner, but would not extend the order to the expenses incurred in the suing out and execution of the writ of fi. fa. Keane v. Keant (Prob. & Div.), V, 544. See Attorney ; Patent. PRECATORY TRUST — See Trusts ; Will. PREFERRED STOCK — See Public Company. PRESCRIPTION — See Easement. PRESUMPTION — ae« Criminal Law; Evidence. PRINCIPAL AND AGENT. 1. Authority to contract. Upon a written request by an owner of freehold property to au estate agent to procure a purchaser for it and to advertise it at a certain price, held, that the estate agent had no authority to enter into an open contract for sale ; and, semble, that he had no authority to enter into any contract for sale. Mamer v. Sharp- (Eq. C), XI, 714. 2. to pledge. The presumption (whether it be au inference of fact or a conclusion «f law), that foreign constituents do not give the English commission merchant any authority to pledge their credit to those from whom the commission merchant buys on their account, applies to a case in which a foreign firm agrees that an English firm shall "purchase" and ship goods " on the joint account" of the two firms. Hutton, v. Bullock (Q. B.), VI, 89. 3 H. F. & Co. were merchants in London, and defendant was a partner, in the firm of H. B. & Co., carrying on business at Rangoon. Goods were supplied by plaintiff to H. F. & Co., on their order, given in consequence of au arrangement between the two firms, as disclosed iu letters, that H. F. & Co. should " purchase " and send out goods on " the joint account " of the two firms, 3 per cent to be charged on the invoice by the London firm, and 5 per cent by the Rangoon firm, including guarantee. Plaintiff had no knowledge of defendant, or that the Rangoon firm were in any way interested in the transaction, until after the goods were supplied. Held, that defendant was not, as an undisclosed principal, a party to the contract under which the goods were supplied by plaintiff, for that, on the true construction of the correspondence, the Rangoon firm did not give authority to the London firm to establish privity of contract and pledge their credit with the English suppliers of the goods ; inasmuch as the presumption, that foreign constituents do not give the English commission merchant any authority to pledge their credit to those from whom the commission merchant buys on their account, applies to such a case. S. C, affirmed, X, 184. • 4. Principal when bound. The station master of a railway company is the agent of the company at his station to take such action as may be necessary on behalf of the company in relation to the arrest of a person for a suspected PEINCIPAL AND AGENT. 395 larceny of parcels from the station, and may bind the company by his acts and admissions in respect thereto. Kirkstall Brewery Go. v. JPhirness By. Co. (Q. B.), X, 118. 6. The rule that an undisclosed principal may sue and be sued upon mercantile contracts made by an agent in his own name, subject to any defenses or equities which without notice may exist against the agent, is applicable to policies of marine insurance under the Canadian as well as under the English law. Browning v. Provincial Ins. Go. (Priv. C), VIII, 217. 6. Equivocal order. Where a letter of orders which constitutes a contract from a merchant to his commission agent is so worded as to be capable of two interpretations, if the agent fairly and honestly assumes it to bear one of those interpretations, and acts on that assumption, the merchant cannot be released from his contract on the ground that he intended it to bear the other. As the error arose from his own indistinctness of expression, he must bear the loss. L. wrote to I. & Co. at Mauritius, desiring them to ship him 500 tons of sugar at 26s. M., to cover freight and insurance, adding, " Fifty tons more or less of no moment, if it enables you to get a, suitable vessel. I should prefer the option of sending vessel to London, Liverpool, or the Clyde ; but if that is not compassable you may ship to either Liverpool or London." I. & Co. could only procure at the price mentioned nearly 400 tons, which they pur- chased from several different persons, and shipped in one vessel to Liverpool. L. refused the cargo, and wrote to cancel the order so as to prevent any farther shipment. Held, that, under the circumstances, L. was bound to accept the cargo. Ireland v. Livingston (H. of L.), II, 424. 7. Ih the Mauritius market it is often impossible to obtain so large quantity of sugar as 500 tons from one house, or to find one vessel to take i't. Qucere, whether an order to commission merchants there to purchase such a cargo must be construed with reference to the customs of that market ? lb. 8. Qiuere, whether in the circumstances above stated, the contract was to be regarded as a contract between principal and agent, or between vendor and vendee ? Bemble; that the contract might be regarded in both aspects. lb. 9. Collusion by agent. Any surreptitious dealing between one principal to a contract and the agent of the other principal is a fraud in equity, and entitles the last-named principal to rescind the contract. Panama, etc,, Tete- graiph Co. v. India Bubber, etc.. Works Go. (Chan. App.), XIV, 759. 10. Notice to agent. Two directors of Company A. were also directors of Company B., and both companies employed the same solicitor. Company A. owed money to their contractor, which, however, was not payable immediately. The contractor had bought shares in the company and was pressed by the stock brokers for the money. Company A. agreed to advance him £7,000, and borrowed the money from Company B. on the security of a mortgage. The loan was negotiated by one of the persons who was a director of both com- panies, and the solicitor who acted for both companies prepared the mortgage. Company A. had power under the articles to borrow money, but were not authorized to btiy up their own shares. Both companies afterward were wound up. Seld, that Company B. were not affected by notice of any illegality in the purpose to which the money borrowed was to be applied, and that they were 396 PKINCIPAL AND AGENT. consequently entitled to prove against the estate of Company A. under the winding up. In re Marseilles Extension By. (Chan. App.), I, 490. 11. If the agent have notice of facts rendering a purchase invalid the principal is chargeable with such notice. Vane v. Vane (Chan. App.), V, 607. 12. Payment by bill to agent. M., the plaintiffs' traveler, having received an order from the defendant, a customer, the plaintiffs wrote to M. expressing their unwillingness to execute the order until a former account was settled, adding " We should like to draw upon him for the former," mentioning the amount. M. showed this letter to the defendant, and obtained from him an acceptance at three months' date payable U> " my order," with a blank for a drawer's name. The bill was paid at maturity, but not to the plaintiffs,' M. having filled up the blank with his own name, and fraudulently negotiated the bill. In an action to recover the value of the goods for which the bill had been given, it was proved that upon one occasion at least the defendant had accepted a bill drawn by M. in blank, which had been received by the plaintiffs as payment ; but there was no evidence to show the form of that bill. Held (Grove, J., doubting), that neither the letter nor the former dealing was any evidence of authority in M. to draw the bill in question, so as to sustain a plea of payment. Hogarth v. Wherley (Com. PI.), XIV, 474. 13. Principal, Turhen liable. The plaintiffs, a foreign company, entered into negotiations through S. & Co., London commission merchants, for the supply by Mr. C, the defendant, of certain railway wheels and axles ; and the defend- ant, in consequence, had an interview on the 29th of January, at S. & Co.'s office, with S., one of the partners, and H., the managing director of the plain- tiff's company ; and the defendant signed in a diary of S. the following entry • '' Mr. C. offers to supply 150 sets of wheels and axles (describing them) at £31 per set, to be delivered free on board at Hull during February and March. This offer to remain open until the 3d of February." On the 3d of February S. & Co. telegraphed and wrote, " We confirm the order fOr 150 sets of wheels and axles," repeating the terms of the offer. Some of the sets were delivered by the defendant, the invoices being made out to S. & Co., and they paid for them ; but the delivery of most of the sets was after March, and the plaintiffs sued for a breach of the contract. At the trial it was objected that the con- tract was with S. & Co., and not with the plaintiffs. The judge left it to the jury to say whether the contract was with S. & Co. or with the plaintiffs. The jury found for the defendant. Held, that the direction and verdict was right. UieElbinger, etc., Go. v. Glaye (Q. B.), VI, 81. 14. Fraud of agent. A principal or master is answerable for every such wrong of his servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved ; and there is no distinction between the case of fraud and the case of any other wrong. Mackay v. Commercial Bank of New Brunsmck (Priv. C), IX, 203. 15. Where one party has suffered and another has profited by the iraud- ulent representation of an agent of the latter, made within the scope of his authority, the former is entitled to recover damages. lb. 16. An action of deceit may be maintained against a company, whether incorporated or not incorporated, in respect of the fraud of its agent. lb. PEINCIPAL AND AGENT. 397 17. An officer of a banking corporation, wlioae duty It was to obtain the acceptance of bills of exchange in which the bank was interested, fraudu- lently, but without the knowledge of the president or directors of the bank, made a representation to A. which, by omitting a material fact, misled A. and induced him to accept a bill in which the bank was interested, and A. was compelled to pay the bill. Held, that A. could recover .from the bank the amount so paid. lb. 18. If the manager of a banking company, acting within the scope of his authority, makes a false representation respecting the solvency of a third person, knowing it to be false, the banking company is liable for the fraud, and an action will lie against it and such officer jointly therefor. Swift v. Winterbotham (Q. B.), V, 202. 19. The plaintiffs, a limited company, of which C. was managing director, had begun printing a periodical for D. & Co., a firm consisting of the defendant's son and two others, and the periodical was being sold on commis- sion by S. The plaintiffs, represented by C, refused to go on printing without a guaranty, and the defendant consented to become security, by drawing a bill on D. & Co. and indorsing it to the plaintiffs, upon the understanding that he was to have funds to meet it out of the debt accruing from S. to D. & Co. C. was told of this arrangement. Before the defendant drew this bill, C. had lent money to D. & Co. on his own account, and held their acceptance to his draft. When this latter bill became due, C. obtained an order on S. from the other two partners of D. & Co., without the knowledge or consent of the de- fendant or his son, and under this order C. obtained the amount due from S. to D. & Co., and appropriated it to the payment of this bill, the amount being more than sufficient to cover the defendant's bill. The plaintiffs having sued defendant on his bill, held, that the defendant had no defense as against the plaintiffs, for that the plaintiffs were not responsible for what C. did in getting his private debt paid, as, though he was their managing director, he was not then acting for them, or in pursuance of any authority from them. McOowan V. Dyer (,Q. B.), IV, 256. 20. Money deposited with agent. The directors of a building society de- posited money, in a manner unauthorized by their rules, with a finance com- pany, the manager of which was also manager of the building society. After- ward the deposit was called in, and the directors of the finance company gave a check for the amount to their manager, to be paid by him to the building society. He appropriated it to his own use. A bill was then filed by the trustees of the building society to recover the money from the finance com- pany. Held, that the manager held the money as agent for the finance com- pany until he should pay it to some person competent to give a receipt on behalf of the building society, and that, as he never paid it over, the money must be taken to be still in the hands of the finance company, who were liable to repay it to the building society. Held, also, that, as it was trust money, a suit to recover it was maintainable, and the finance company were accordingly Drdered to repay the money with interest. Hardy v. Metropolitan Land and Finance Co. (Chan. App.), II, 327. 21. Sole credit to agent. A vendor, who has given credit to an agent, be- ieving him to be the principal, cannot recover against the undisclosed princi- 398 PRINCIPAL AND AGENT. pal, if the principal has bona fide paid the agent at a time when the vendor still gave credit to the agent and knew of no one else as principal. Armstrong V. Stokes (Q. B.), Ill, 217. 22. R. & Co. were commlBsion merchants, acting sometimes for them- selves and sometimes as agents. Plaintiff, a merchant, had had dealings with them, and had never inquired whether they had principals or not, and had always settled with them. On the 15th of June plaintiff contracted to sell to R. & Co. 200 pieces of shirtings at a certain price, payment to be made in thirty days after delivery, with a discount of 1^ per cent. Plaintiff delivered the shirtings (which were gray or unbleached shirtings), and the payment ought to have been made on Friday, the 25th of August. On the 24th R. & Co. asked for delay till the next pay day, September the 1st , and while plaintiff was considering what to do, R. & Co., on the 30th of August, stopped payment. It turned out that R. & Co. had bought the goods for defendants under the fol- lowing circumstances : Defendants, merchants, had been in the habit of giying orders to E. & Co. for white and gray shirtings ; when white were ordered R. & Co. went into market, bought gray shirtings, had them bleached, and charged defendants with the price of the gray shirtings and of the bleaching, and 1 per cent on the aggregate as their commission, with the charges of psrcking, etc. In previous transactions defendants had always paid R. & Co., generally in cash, i. e., on the next weekly pay day, and had never been brought into communication with those who supplied or those who bleached the goods. In the present case defendants gave a verbal order for 200 white shirtings, the price not being named, nor the mode of payment. R. & Co., having received the gray shirtings from plaintiff, got them bleached and sent them to defend- ants, charging the price at which they had bought of plaintiff, the cost of bleaching, and 1 per cent on the aggregate of those two sums, with the charges of packing, etc. ; and defendants, with perfect good faith, paid R. & Co. on the next pay day after they received them, viz., on the 11th of August. On the above facts, the court having power to draw inferences, held, first, that the delay of plaintiff in taking no steps between the 25th and 30th of August was not laches such as would have precluded him, if otherwise entitled, from re- covering payment from defendants ; secondly, assuming that there was au- thority, from the course of dealing between defendants and R. & Co., to estab- lish privity of contract between defendants and those from whom R. & Co. obtained the goods; that, after the bona fide payment by defendants to R. & Co., at a time when plaintiff still gave sole credit to R. & Co., and knew of no one else as principal, plaintiff could not come upon defendants for the price lb. 23. Liability to agent. The plaintiffs, brokers on the London Stock Ex- change, bought for the defendant (who was not a member of the Stock Ex- change) certain shares for the account of the 15th of July, 1870, and on that day, by his instructions, carried them over to the account of the 29th of July, and paid differences amounting to £1,688. The defendant and various others, principals of the plaintiffs, not having paid the amount due from them in respect of contracts for the 15th of July, the plaintiffs became defaulters, and on the 18th, in conformity with the rules of the Stock Exchange, they were declared defaulters, and their transactions were closed and accounts were made up at the prices current on that day. On the closing of the accounts a PRINCIPAL AND AGENT. 399 further sum became due from them in respect of differences upon the con- tracts carried over by them for the defendant. In an abtion to recover this sum and the £1 ,688, held, that the defendant was not liable for any thing beyond the £1,688, there being no implied promise by a principal to his agent to in- demnify him for loss caused, not by reason of his having entered into the con- tracts which he was authorized to enter into by the principal, but by reason of his own insolvency. Duncan v. Hill (Exch.), VI, 303. 24. Agent's liability to third parties. The directors of a railway company, which had fully exercised the borrowing powers conferred upon it by its special act, in August, 1864, advertised that they were "prepared to receive proposals for loans on mortgage debentures," " to replace loans falling due." W. W. (the plaintiff's testator) offered a loan of £500 ; and, his offer being ac- cepted, he in the same month sent his check for £500 to the directors, for which he requested that a debenture should be issued to him. In pursuance of a resolution of the directors to that effect, the check was handed to H., the contractor for the works, who had been (but had then ceased to be) the holder of seven debenture bonds for £500 each ; and H. was requested to transfer one of them to W. W. ; and it was by the same resolution directed " that such bond be on the 1st of October exchanged for a new one." H. kept the check (which was duly honored), but was unable to transfer the debenture ; and in pursuance of a resolution of the directors of the 5th of October, a new debenture bond for £500 was sealed and sent to the plaintiff, as executor of W. W. The defendant, a director of the company, was a party to each of the above transactions. By a decree of the Court of Chancery of the 14th of February, 1868, the above-mentioned debenture was declared void, as being for a sum in excess of the borrowing powers of the company. Upon a case stated for the opinion of the court, without pleadings, and upon the argument of which it was agreed that no question of non-joinder was to be raised, held, that the defendant was liable as for a breach of warranty that the directors had power under the circumstances to issue a debenture which should be valid and binding upon the company ; and that the plaintiff was entitled to recover as against him £500, together with interest by way of damages. Weeks v. Properi (Com. PI), VI, 193. 25. As affected by custom. A jobber or dealer in shares on the Stock Exchange contracted to purchase the plaintiff's shares in a company, and gave into the plaintiffs brokers a ticket with the name of the intended transferee, which had been passed on to him. After the execution of the transfer it was discovered that the transferee was" an infant, of which neither party was previously aware ; and the plaintiff became liable for calls. In a suit by the plaintiff against the jobber, seeking to make him liable to Indemnify him in respect of the shares, held, that, as by the usage of the Stock Exchange the jobber was, in the absence of fraud, discharged from liability when he had given the name of the transferee and paid for the shares, and as he had given all the farther information required by the vendor, the suit against him could not be sustained. Bennie v. Morris (Eq. C), I, 651. 26. Undisclosed principaL The mere fact of filing an affidavit of proof against the estate of an insolvent agent to an undiscovered principal, after that undiscovered principal is known to the creditor, is not a conclusive eleo- 400 PEINCIPAL AND AGENT. tion by the creditor to treat the agent as his debtor. Curtis v. WiUiamson (Q. B.), xi, 149. 27. B. purchased certain goods of the plaintiffs ; he was the agent of the defendants, his undisclosed principals. B. became insolvent, and the plaintiffs then became aware that the defendants were principals. With this knowledge the plaintiffs' clerk sent an affidavit of proof of the debt due to them against the estate of B., whose affairs were being liquidated by arrange- ment. The plaintiffs endeavored to prevent the affidavit of proof from being filed, but were unsuccessful. SeM, that the mere filing of the affidavit of proof formed no obstacle to the plaintiffs suing the defendants for the price of the goods sold to B. lb. 28. Dealings between principal and agent. An agent for sale, who takes an interest in a purchase negotiated by himself, is bound to disclose to his prin- cipal the exact nature of his interest ; and it is not enough merely to disclose that he has an interest, or to make statements such as would put the principal on inquiry. In such a case the burden of proving that a full disclosure was made lies on the agent, and is not discharged merely by the agent swearing that he did so, if his evidence is contradicted by the plaintiff and not (Cor- roborated. Dunne v. English (Eq. C), X, 837. 29. Agent's liability to principal. A., being aware that B. wished to obtain, shares in a certain company, represented to B. that he, A., could procure a cer- tain number of shares at £3 a share. B. agreed to purchase at that price, and the shares were thereupon transferred in part to him and in part to his nominees, and he paid to A. £3 a share. He afterward discovered that A. was in fact the owner of the shares, having j ust bought them for £2 a share. Mdd, that, on the facts, A. was an agent for B., and A. ordered to pay back to B. the difference between the prices of the shares. Kimber v. Barber (Chan. App.), IV, 753. 30. Defendant, an auctioneer, sold certain goods for plaintiff, the owner, on premises occupied by plaintiff and another, and in respect of which the latter owed the landlord rent. By the conditions of sale each lot was to be taken to be delivered at the fall of the hammer, after which time it was to remain at the exclusive risk of the purchaser. After the sale, and before the goods were removed, the landlord threatened to distrain on the goods, where- upon the auctioneer paid the rent and deducted it from the amount the goods had realized, and paid over the balance to the plaintiff. Held, that the auc- tioneer was not justified, as against the plaintiff, in paying the rent, as, on the sale of each lot, the property passed to the purchaser, who would have had to bear the loss if the landlord had distrained, and, consequently, that he was liable to his principal for the amount so paid. Sweeting v. Turner (Q. B.), II, 73. 31. The plaintiff authorized defendant, as his broker, to negotiate for the purchase of a particular ship on the basis of an offer of £9,000, but even- tually the ship was purchased through defendant for £9,250. Prior to the sale an arrangement had been made between the vendor and a broker, S., that if S. could sell the ship for more than £8,500, he might retain for himself the excess ; and it was arranged between S. and defendant, without the knowledge or sanction of plaintiff, that defendant sho\ild receive from S. a portion of Buch excess, and accordingly defendant received £225, part of the excess over PKINCIPAL AND SUEETY. 401 £8,500. On discovering this, the plaintiff brought an action for money had and received for the £335. In addition to the above facts the jury found that defendant was the agent of plaintiff to purchase the ship as cheaply as she could be got, and that plaintiff could have got her cheaper biit for the arrange- ment between the vendor and S. Held, that the action would lie. Morison v. Thompson (Q. B.), X, 139. See Broker : Factor : Infant ; Master and Servant : Negligence ; Notice. PRINCIPAL AND SURETY. 1. Surety, when discharged. A. drew a bill on B., which B. accepted. C. became the holder for value. Before due date it was agreed between A. and C. (A. assuring C. of B.'s concurrence) that the bill should be renewed, and C. gave to A. a check on O. for the amount of the bill, to the intent that B. should be placed in funds to meet the original bill, and should thereupon accept the renewed bill. A. sent the new bill to B. for acceptance, and also sent him the check, and B. knew the purposes for which both were sent. B. cashed the check and paid the first bill, but refused to accept the second. Held, that B. had no right so to appropriate the check without accepting the bill, and that the agreement between A. and C. did not release B. from his suretyship as acceptor of the first bill. Torrance v. Bank of British North America (Priv. C), VIII, 303. 2. By alteration of contract. Declaration on a bond given to the plaintiff by the defendant, which recited that by an agreement of even date the plaintiff had agreed to admit J. into his service as " clerk and traveler " (not further stating the terms of the agreement), and was conditioned for J.'s accounting for and paying over to the plaintiff all moneys which he might receive on plaintiff's account, the breach allege4 being that J. had received moneys for the plaintiff which he had not accounted for or paid over. Pleas on equitable grounds. 3. That the original agreement between the plaintiff and J. was that it should be terminable by one month's notice ; and that the plaintiff and J. afterward, and before the defaults sued for, made it terminable by three months' notice, without the defendant's consent. 3. That before the defaults sued for J. had committed other. defaults of the same kind ; that the plaintiff had, with knowledge of those defaults, continued to employ J. in his service without notice to the defendant ; and that the defaults sued for were com- mitted during such continuance of the service. On demurrer to these pleas, lidd, first (Martin, B., doubting), that the second plea was bad, on the ground that it did not show that the term as to the period of notice was made part of the defendant's contract, and that the alteration alleged did not in fact materi- ally add to the defendant's risk ; secondly, that the third plea was good. San- derson V. Aston (Exch.), IV, 453. 3. By giving time to principal. In 1869 A. retired from a partnership which had been carried on between A., B. and C, B. purchasing A.'s share in the busi- ness, and covenanting to indemnify him against all partnership debts and liabilities. The liabilities then existing included two bonds given to secure moneys advanced to the firm for partnership purposes, on which A. and B. had become jointly and severally liable to D. In August, 1871, B. and 0. made an 51 402 PRINCIPAL AND SURETY. arrangement with their creditors under the Bankruptcy Act, 1869. Resolu- tions were passed by the creditors, including D., who proved for his debt, to accept a composition of 15s. Sd. in the pound, payable by installments extend- ing over two years ; and an inspectorship deed releasing B. and C.,and reserv- ing to the creditors their rights against any surety or person other than B. and C, liable in respect of the debts thereby released, was executed by the cred- itors, including D. Seld, that the effect of the composition under which time had been given to B. and C. as principal debtors, without the consent of A., was to discharge A. Wilson v. Lloyd (Eq. C), VI, 642. 4. Where resolutions formally agreed to by creditors under sects. 135, 126 of the Bankruptcy Act, 1869, contain no reservation of any rights against co-debtors or sureties, the reservation of such rights by a subsequent deed of composition is inoperative. lb. 5. If, after a right of action accrues to a creditor against two or more persons, he is informed that one of them is a surety only, and after that he gives time to the principal debtor, without the consent and knowledge of the surety, the rule as to the discharge of the surety applies. Overend, Oumey & Go.v. Oriental Mnaneial Corp. (Chan. App.), XI, 27 ; affirming S. C, I, 478. 6. McH. brought to 0. & G. (a discount company) certain bills, which bore on them the acceptances of the F.'Co. McH. was in fact the agent of the A. & U. W. Co. (an American company), and he and this American company had obtained the acceptances for their own accommodation, and on payment of a commission in respect of such acceptances. The bills were not paid, but renewed. McH. gave the O. & G. Co. his own guarantee and that of the American company that these renewed bills should be paid at maturity. These renewed bills were not paid. The O. & G. Co. gave, on the 6th of April, 1866, notice of dishonor to all the parties whose names were on the bills. On the 9th of April the solicitor of the F. Go. gave full information to the 0. & G. Co. that McH. was the real principal on the bills, which had been accepted by the F. Co. merely for his accommodation. The manager of the 0. & Q. Co. said he should see McH. in the afternoon. McH. afterward gave, as collateral security, to the O. & G. Co. bills to a much larger amount, drawn on one L. L., and the 0. & G. Co. entered into an arrangement with McH. not to sue on the old bills if the bills on L. L. should be paid. Nothing further was done in the matter for some months. These last bills were not paid, and the O. & 6. Co. afterward brought an action against the F. Co. to recover the amount of the bills originally accepted by F. Co. The F. Co. filed a bill to restrain the action. Held, that, under all the circumstances, the action must be restrained, for that the O. & G. Co. , with a knowledge of the real character of the F. Co.'s acceptances, had given time to McH. , whom they knew to be the real princi- pal on the bills, and had so discharged the P. Co. lb. 7. Merely giving of additional security by a principal will not dis- charge a surety, but if the giving of such security is really a consideration for giving time to the principal, it will do so. lb. 8. Semble, that to reserve a creditor's right against a surety there must be a distinct expression of intention to reserve it. lb. 9- A promise to pay on demand bills upon their reaching maturity, PEINCIPAL AND SURETY. 403 given not upon the face of the bills themselves, but by a collateral vcriting, is binding to all intents and purposes on the giver of it. lb. 10. By neglect to enforce other security. The plaintiffs lent to B. & P., who were traders, £300, for the repayment of which the defendant became surety. At the time of the loan B. & P. assigned, by deed dated the 25th of August, 1870, to the plaintiffs, as security for the debt, the lease of their busi- ness premises and plant, fixtures and things thereon. The deed provided for the repayment of the loan upon the 25th of August! 1871, and for the payment of interest on the 25th of February, 1871, and stipulated that, until default in payment of either the principal or interest, B. & P. should continue in posses- sion of the property assigned to the plaintiffs, and that, upon such default, the plaintiffs should not sell without giving B. & P. one month's notice in writing. This deed was not registered under 17 & 18 Vict., c. 36. B. & P. failed to pay interest upon the 25th of February, but the plaintiffs did not enter into posses- sion. About a week before the 5th of August the plaintiffs received notice that B. & P. were insolvent, but they allowed them to continue in possession ; and on that day B. & P. filed a petition for liquidation under the Bankruptcy Act, 1869, and were adjudged bankrupts. The trustee under the bankruptcy seized and sold the goods and chattels assigned by the deed. Held, that the plaintiffs, by their omission both' to register the deed and to seize the property assigned to them on default of payment of the interest, had deprived them- selves of the power to assign the security to the surety, and that, owing to their laches, he was discharged to the amount that the goods were worth. Wulff V. Jay (Q. B.), Ill, 298. 11. By release of principal. A release of the principal debtor, if accom- panied by a reservation of all rights as against the surety, does not operate to discharge the latter. Muir v. Crawford (Sc. App.), XIII, 138. 12. By discharge of principal in bankruptcy. Where a principal debtor is discharged by a resolution under s. 125 of the Bankruptcy Act, 1869, his surety remains liable in the same manner as in an ordinary bankruptcy, although the resolution contains no reservation of rights against sureties. Ellis v. Wil- mot (Exch.), XI, 338. 13. Where the acceptor of a bill of exchange presents a petition for liquidation or composition under the Bankruptcy Act, 1869, and the creditors pass a resolution for liquidation or composition, the acceptor must be consid- ered as discharged by operation of law, and the drawer is thereby not dis- charged from his liability. In such a case it makes no difference whether the billholder is present at the meeting or not, or whether he votes in favor of tlig resolution or against it. Ex parte Jacohs (Chan. App.), XII, 707. 14. To an action on a bond the. defendant pleaded that it was the joint and several bond of himself and J., and was executed by him as surety only for J. ; that afterward a composition deed was made between J., of the one part, and the plaintiff and another on behalf of all the creditors of J. of the other part, whereby J. conveyed to the parties of the second part all his estate to be administered for the benefit of his creditors "in like manner" as if J. had been adjudged bankrupt; and each of the creditors released J. from his debts " in like manner as if he had obtained a discharge in bankruptcy ; " and that the plaintiff executed this deed without the consent of the defendant 404 PEOHIBITION, WEIT OF. On demurrer, held (Pigott, B., dissenting), a good plea. Cragoe v. Jones (Exch.), IV, 458. 15. Right of surety to reimbursement. A., having effected policies upon his own life with an assurance ofiBce, mortgaged them to the oflBce as a security for successive loans. In one of these mortgages B. became surety for repayment of the amount borrowed. A. subsequently became bankrupt, and B. was compelled as surety to pay part of the debt. Upon A.'s death, held, as against A.'s assignee in bankruptcy, that B. was entitled to marshal the securities so as to obtain repayment out of the balance of the several policy moneys of the amount which he had been compelled as surety to pay_ Held, also, that a payment to B. by A.'s wife, out of the income of her separate estate, to reimburse him for the loss he had sustained, was not a payment on account of or as agent of A., so as to set free the policies pro tanto from B.'s claim. Heyman v. Dubois (Eq. C), 1, 630. See GtTABANTY. PRISON BREACH — /See Csiminal Law. PRIVILEGED COMMUNICATION — ^66 Libel. PROBATE— See Injunction; Will. PROMISSORY NOTES— (See Bills and Kotbs; Principal and Sueett. PROHIBITION, WRIT OP. 1. When granted. When a superior court is clearly of opinion, both with reference to the facts and the law, that an inferior court is exceeding its jurisdiction, it is bound to grant a writ of prohibition ; whether the applicant for the prohibition is the defendant below or n stranger. In such a case, neither the smallness of the claim in the suit below nor delay on the part of the applicant is a reason for refusing the writ. The plaintiff in the inferior court has in no case an absolute right to have the plaintiff in prohibition put to declare in prohibition. Worthington v. Jeffries (Com. PI.), XII, 440. 2. Want of jurisdiction. The defendant in an action in the Lord Mayor's Court may obtain a writ of prohibition on the ground of want of jurisdiction, notwithstanding the 15th section of the Mayor's Court of London Procedure Act, 1857, which enacts that " no defendant shall be permitted to object to the j urisdiction of the court in or by any proceeding whatsoever except by plea ; " the real eflfect of that section being only to limit the modes of objecting within the Lord Mayor's Court to the jurisdiction. Jacobs v. Brett (Eq. C), XIII, 566. PUBLIC COMPANY. I. Oeganization and powers 405 II. Directors, duties and liabilities 406 III. Shares and stock 411 IV. Contracts by and with companies 416 V. Actions by and against companies 421 VI. Winding up ; contribution 423 PUBLIC COMPANY. 405 I. Organization and powers. 1. Annual meeting. By s. 49 of the Companies Act, 1863 (35 & 36 Vict., c. 89), a general meeting of every company under this act shall be held once at least in every year. Held, that the word " year " means the period of time commencing on the 1st of January and ending on the 31st of, December, and not the period of twelve months commencing from the day of registration of a company. Oibson v. Barton (Q. B.), XIII, 273. 2. Calling meetings. Where, by the articles of association of a company, the directors, and in the alternative a certain portion of the shareholders, can summon a meeting of the company, the court will not order the directors to. summon a meeting for the general purposes of the company. MaeDougaZl v. Ga/rdiner (Chan. App.), XIV, 820. 3. Election of directors. An election of directors made at a meeting held without the notice required by the rules of the company is invalid ; and U seems that directors holding over contrary to the rules of the company up to that time, cannot legally act after such meeting. Garden Gully, etc. , Mining Go. V. McIAster (App. C), XV, 1. 4. Xiiability for preliminary expenses. The articles of association of a joint-stock company provided that the company should defray such expenses incurred in its establishment as the directors should consider might be deemed and treai.ted as preliminary expenses, to an amount not exceeding £2,000. The plaintiff's, who were promoters of the company, had incurred preliminary expenses in the establishment of the company. Held, that no action would lie at the suit of the plaintiffs against the company for non-payment of such preliminary expenses in accordance with tjie articles of association. Melliado V. Porto Alegre, ete., Ry. Co. (Com. PI.), X, 379. 5. Power to amalgamate. By an agreement between two companies, one company was to buy the business of the other company, the consideration to be paid in shares of the buying company, to be issued to the selling company and divided among its shareholders. Resolutions approving of this agree- ment and also authorizing the creation of the requisite new shares (all the shares authorized by the articles of association having been already issued) were passed at one extraordinary general meeting of the buying company, and were confirmed at a second meeting. A large majority of the shareholders of the selling company, assented to the agreement, and applied for and received what purported to be new shares of the buying company. Certain dissentient share- holders, however, filed a bill in cBancery and obtained a decision from Giffard, V. C, that the agreement was void. These shareholders were afterward, by way of compromise, paid a sum of money by the official liquidator of the buying company, then in liquidation, and the suit in chancery was stayed. Certain former shareholders of the selling company, holders of what pur- ported to be new shares in the buying company, then applied to be repaid the money which they had paid to the buying company for premium and on calls upon their shares. Ileld, that as the buying company did really acquire (by a title which, though originally defective as against the dissentient shareholders, had been in the end confirmed), the property of the selling company, and as the shares were issued bona fide, the holders of the new shares could not now 406 PUBLIC COMPANY. repudiate them. In re Bank of Hindustan, etc.; Campbell's Case; Svppisley's Case; Alison's Case (Chan. App.), VIII, 678. 6. Held, that the directors of a company, after » resolution to increase the capital of a company by the issue of new shares has been approved of hy two meetings, according to sects. 50 and 51 of thfe Companies Act, 1863, can proceed to issue the shares ; and that it is not necessary, under sect. 13, to have the articles varied at *two meetings and the issue of the shares author- ized by two other meetings. lb. 7. The buying company had brought against one of the holders of new shares an action to recover calls, in which action judgment had been given for the defendant. Held, that the' judgment was conclusive ; and that this holder of shares must be repaid what he had paid for premium and calls on the shares. lb. 8. Power to mortgage. A power in a deed of settlement of a joint-stock company authorizing the directors to mortgage or charge the property of the company, does not authorize them to include in such mortgage or charge future calls, or, in other words, the unpaid capital of the company. Bank of S. Aus- tralia V. Ahrahams (Priv. C.), XII, 148. 9. The capital not paid up is, according to the usual forms of deeds of settlement, only sub modo the property of the company ; a precedent condition to the absolute proprietary right of the company therein being the due making of a call by a resolution of the board of directors. lb. 10. Power to issue preferred stock. If the memorandum and articles of association of a company are silent on the subject, it is an implied condition that the shareholders are entitled to rank equal as regards dividend, without preference or priority between themselves ; but such implication will be re- butted if the articles of association contemporaneous with the memorandum contain clear provisions as to the preference or priority of classes of shares. The memorandum of association of a company incorporated under the Com- panies Act, 1862, declared tliat the capital was £2,700,000, divided into 135,000 shares of £20 each. It was provided by the articles of association that the directors might, with the sanction of a special resolution of the company pre- viously given in general meeting, increase the capital by the issue of new shares, such increase of capital to be made in such manner, to such amount, and to be with and subject to such rules, regulations, privileges, and conditions as the company in general meeting should think fit. Held, on demurrer, that special resolutions authorizing an increase of the capital by the issuing of pre- ferred shares were not in excess of the powers of the company. Harrison v. Mexican By. Co. (Eq. C), XII, 793. II. DiRECTOKS, DUTIES AND LIABILITIES. 11. Duty of directors. Directors of a company issuing a prospectus are bound to disclose every material fact ; and if they do not they will be held liable to indemnify any person who takes shares from the company on the faith of the prospectus against any loss which may be occasioned to him by reason of such concealment, even though they may have believed that the concealment will be beneficial to the persons induced to take shares. Peek v. Gurney (Eq. C), I, 567. PUBLIC COMPANY. 407 12. A fact which, if disclosed, would have so discredited the company £« to prevent its formation, is a maierial fact within the meaning of the fore- going proposition. lb. 13. The proper purpose of a prospectus of an intended company is to invite persons to become allottees of the shares or original shareholders in the company. When it has performed this office it is exhausted. S. C. affirmed (H. of L.), VIII, 1. 14. Iiiability for false prospectus. A prospectus of an intended company ought not to misrepresent actual and material facts, or to conceal facts mate- rial to be known, the misrepresentation or concealment of which may improp- erly influence and mislead the mind of the reader, for if he is thereby deceived into becoming an allottee of shares, and in consequence suffers loss, he is en- titled to proceed agairist those who have thus misled him. Bat the responsi- bility of directors who issue a proSipectus for an intended company misrepre- senting actual and material facts, or concealing facts material to be known, does not, as of course, follow the shares on their transfer from an allottee to Ms vendee. In order that this third person, the vendee, should be enabled to maintain any proceeding at law or in equity against the directors in respect of losses occasioned by his belief in the prospectus and his consequent procure- ment of shares, he must show some direct connection between them and him- self in the communication of the prospectus and its influence upon his con- duct in becoming an allottee. lb. 15. The rule as to delay in seeking for compensation for losses thus occasioned is, in common-law proceedings, that which is prescribed by the Statute of Limitations, and the rule in equity follows by analogy that of the law. Where, therefore, a person became possessed of shares in October, I860, and the company was ordered in June, 1866, to be wound up, and he contested his liability to be made a contributory, but was, in July, 1867, declared liable as such, and in March, 1868, filed his bill against the directors to be indemni- fied by them, held, that delay could not be set up as an answer to the suit. lb. 16. The proceeding in such a case is like an action at law for deceit (the same principle being applicable in such a matter both at law and in equity),and is, therefore, of a personal character ; and the estate of a deceased director not being alleged and proved to have received benefit from the deceit, his executors cannot be made liable to compensate the person who asserts that he has been inj ured by it. lb. 17. One of the projectors of a company, a partner of the old firm which sold its business to the company, set up as a defense that he had not taken part in preparing or issuing the prospectus ; he knew, however, all that the other directors knew, consented to become a director of the company, signed the memorandum and articles of association, and shares were appropriated to him. Held, that, under these circumstances, he could not avail himself of this defense. lb. 18. Per Lord Cairns : Mere non-disclosure of facts, unless such non- disclosure had the effect of making the disclosed facts absolutely false, would not be sufficient to sustain a proceeding which was really in the nature of an action for misrepresentation. lb. i08 PUBLIC COMPANY. 19. A prospectus for an intended company was prepared by the pro- jectors (the directors of the company), and issued by them to the public; it contained misrepresentations of facts, facts known to those who issued it, and it also concealed the existe"nce of a deed, which was material to be known, and which, if known, would in all probability have prevented the formation of the company. Being addressed to the whole public, any one might take up the prospectus and appropriate to himself its representations by applying for an allotment of shares. Held, that when the allotment was completed the office of the prospectus was exhausted, and that a person who had not become an allottee, but was only a subsequent purchaser of shares in the market, was not so connected with the prospectus as to render those who had issued it liable to indemnify him against the losses which he had suffered in conse- quence of his purchase. lb. 20. The 38th section of the Companies Act, 1867 (30 & 31 Vict., c. 131), which provides for the disclosure, in the prospectus, of a company, of certain particulars with regard to the class of contracts specified' in the section, is ap- plicable only for the protection of shareholders in the company, and creates no statutory duty toward bondholders of the company or others, for breach of which an action on the statute will lie. Cornell v. Hay (Com. PI.), V, 304. 21. Qucere, as to the nature of the contracts to which the provision is applicable? lb. 22. SemUe, per Honyman, J., that the section creates no statutory cause of action, but merely amounts to a declaration that, as between shareholders and those issuing the prospectus, the latter shall be deemed to have acted fraudulently. lb. 23. Liability for misuse of powers. Pacts which may show imprudence in the exercise of powers undoubtedly conferred upon directors will not subject them to personal responsibility. The imprudence must be so great and mani- fest as to amount to crassa negligentia. Overend & Qurney Go. v. Oibb (H. of L.), Ill, 1. 24. Where the directors to whom these powers were intrusted, and who exercised them, were, by the " company " which had conferred the powers, afterward sought to be made responsible for their exercise, held, that mal- feasance or crassa negligentia ought to have been distinctly charged, otherwise an action therefor could not be sustained. lb. 25. In a company formed for the purchase of a business, where the power to make the purchase was distinctly conferred on the directors, though the character of the business turned out to be ruinous, unless that character was obviously apparent when the purchase was made, the directors will not be personally responsible for making it. lb. 26. In this case a prospectus was, in the usual manner, issued by the directors, but that prospectus in no way whatever affected the claim of the plaintiff company to compensation for loss consequent on the purchase of the business ; for the company was formed for the express purpose of pur- chasing the business, and was not induced to take that step by any previously issued prospectus. lb. 27. An ap'ent (and the directors here were rather agents or mandatories PUBLIC COMPANY. 409 than trustees), being authorized to do an act in itself imprudent, and one which the principal ought not, as a matter of prudence, to have authorized, is not to be held responsible for the consequences of doing it. lb. 28. Iiiability for profits of contracts. A director of a joint stock company is in a fiduciary position toward the company, and if he makes any profits on account of transactions of business when he is acting for the company, he must account for them to the company. Liquidators of Imperial Mer. Ored. Ass. v. Coleman (H. of L.), VI, 18. 29. So, if, acting for himself, he proposes to the company a contract, from the execution of which he will derive a profit, that profit belongs to the company. lb. 30. ^ — Where the articles of a joint-stock association declared that if a, director had any interest in a contract proposed for acceptance by the associa- tion, he should declare his interest, or his place as director should be vacated, and that, having declared it, he should not vote on the proposal, held, first, that "declare his interest" meant declare the nature of his interest, and that the words were not satisfied by a mere declaration that he had an interest in the matter. lb. 31. And secondly, that the vacating of the seat would not prevent the contract itself from being treated as one made for the benefit of the associa- tion, for that the rule of equity would apply to such a case in addition to the penalty specially mentioned by flie articles of association. lb. 32 In a joint-stock association, created for the purpose of carrying into eflect loans and other financial operations, C. (who carried on business as a stock broker) was a director. An article of the association required that if a director " contracts with the company, or is concerned in, or participates in the profits of any contract with the company, or participates in the profits of any work done for the company, without declaring his interest at the meeting of directors at which such contract is determined on, or work ordered," his ofiice of director should be vacated. The article further required that he should not vote on such contract or work. C. had entered into an arrangement with P. to "place" the debentures of a railway company for a commission of five per cent. C, at a meeting of the directors, without mentioning his arrangement with P., but merely declaring that he had an interest in the transaction, pro- posed to the association that it should undertake to " place " these debentures at a commission of one and a half per cent. The proposal was adopted, and debentures to a very large amount were " placed " by the association. Held, that C. was liable to account to the association for the difference between the two amounts of commission, so far as concerned the debentures which had been actually placed by the association. lb. 33. C. had a partner, K., who was not in any way connected with the association. The transaction, however, had been a partnership transaction. Held, that the partners were liable, jointly and severally, to make good to the association the profits which it ought to have received in the increased amount of the commission. lb. 34 Directors of a company, who have contracted to sell stock to a third party, cannot, while such contract remains executory, purchase such stock 52 410 PUBLIC COMPANY. from their vendee, except for the benefit of the company ; and they may be compelled to account to the company for any profit made by them on such a purchase. Parker v. McEenna (Chan. App.), XI, 456. 35. Personal liability on contracts. A direction given by persons who are directors of a company to their bankers, when the company had a balance in the hands of the bankers, to honor checks drawn and signed in a particular manner, does not of itself impose on the directors any persooal responsibility as to those checks. This direction is in no sense a misrepresentation, so as to make personally liable those who gave it to those who acted upon it. Seattle V. Lord Ebury (H. of L.), IX, 64. 36. N'or, though that direction should continue to be acted on by the bankers aftef the company's account has been overdrawn, will it entail on the directors who gave it any personal liability. Nor will it entail any such liability on those who, at a subsequent meeting of the board of directors, con- firmed the minutes of the board meeting at which it was given, and who drew checks in accordance with it, though the account was overdrawn when these latter checks were issued and honored. lb. 37. Bankers under advances to a railway company made a demand on the directors of the company to deliver to them as " security " for the advan. ces " unissued shares " of the company, and " such preference shares and debentures as you may obtain authority to raise in next session of Par- liament." This demand was not construed to mean that the shares and de- bentures should be paid-up shares and debentures, and the directors by delivering unissued shares and debentures (on which money had not been paid), were not guilty of any misrepresentation, and did not render themselves liable to make good to the bankers those shares and debentures. lb. 38. Manager, liability of. By s. 26 : " Every company * * * shall make once at least in every year a list of all persons who on the fourteenth day succeeding the day on which the ordinary general meeting * * * is held are members of the company * « « and a copy shall forthwith bo forwarded to the registrar of joint-stock companies." By s. 27, "if any com- pany * * * makes default in complying' with the provisions of the act with respect to forwarding such list, such company shall incur a penalty * * * and every director and manager of the company who shall know- ingly and willfully authorize or permit such default shall incur a like penalty." The appellant was the secretary of a company registered under the Companies Act, 1863. The articles of association did not provide for the appointment of a manager, and none had been appointed. At a meeting of directors, in 1873, the appellant reported that he had called a general meeting of the share- holders, and, in 1874, he had, in a letter to the directors, stated that unless certain contracts were carried out he should feel it his duty to summon a general meeting of shareholders. No ordinary general meeting of share- holders had been held in the year 1873, and no list of shareholders had been forwarded to the registrar in compliance with s. 26, and the appellant had not taken any steps to cause a meeting to be held in 1873. He was convicted on an information charging him, as manager, with authorizing a default in forwarding a copy of the list of shareholders to the registrar in 1878. Held, (QtTAiN, J., dissenting), that the conviction ought to be affirmed; for that PUBLIC COMPANY. 411 there was evidence that the appellant was manager de facto, and therefore a manager within s. 36 ; and as he took no steps in 1873 to call a meeting, and thereby made it impossible for him to forward to the registrar a list of the members, there was evidence that he had knowingly and willfully authorized a default within s. 37. Qibion v. Barton (Q. B.), XIII, 373. III. Shares and stock. 39. Contract for shares. Where the holding of a certain number of sharec is a necessary qualification for a director, merely acting as a director does not amount to a contract by the person so acting to take that number of unpaid shares directly from the company. Brown's Case (Chan. App.), VIII, 763. 40. Each of the directors of a company was obliged to hold fifty shares. B., at the request of the promoter of the company, assented to become a director and attended a, meeting. By the direction of the promoter, who w^s entitled to a large number of paid-up shares in the company, paid-up shares sufficient for the qualification of a director were registered in B.'s name. Meld, that any implied contract by B. to take shares was fulfilled by his acquiring shares in that manner. lb. 41. Held, that, under the circumstances, the shares registered in his name must be taken to have been so registered in order to qualify him as a director, or else that the agreement under which he became a director was not complied with, and he was not a shareholder. lb. 42. A. company, being at the time in great pecuniary diificulties and under an onerous contract with B., one of their directors, entered into an agree- ment with B., by which he agreed to annul his contract and give the. company the benefit of a more beneficial sub-contract upon receiving £13,000 compensa- tion, which it was thereby agreed should be paid by crediting the shares stand- ing in his name with a payment of £1,800 (thereby making the same fully paid up), an acceptance for £200, and the remaining £10,000 in fully paid-up shares, to be issued at certain contingent periods. Within two months after the execution and registration of this agreement a petition, on which an order was ultimately made, was presented for winding up the company. Held, that the effect of the arrangement under which B. had applied, in paying up his shares, money legitimately coming to him as compensation for giving up a beneficial contract, was to discharge B. from all liability in respect of those shares. In re Paraguasau, etc., Co. ; Adamson's case (Eq. C), XI, 596. 43i Pajnnent for stock. Any hona fide transaction between a company and a shareholder which, if the company brought an action against him for calls, would support a plea of payment, is " payment in cash " within sect. 35 of the Companies Act, 1867. S. took shares in a company formed for .working a. mine which he sold to them. The whole nominal amount of the shares was immediately payable, as was also the purchase-money of the property. It was agreed between S. and the company that he should be credited in account with the price of the property, and debited with the amount payable on his shares ; and the balance of the account thus made out was shortly afterward exactly balanced by cash payments by S. Held, that S. must be considered as having paid up his calls in cash. Spargo'a case (Clian. App.), V, 686. 44. The 35th section of the Companies Act, 1867, has not altered the 412 PUBLIC COMPANY. law with regard to the question of what is a good payment for shares. In re Limehouse Works Oompany ; Goateii' case (Eq. C), VII, 748. 45. The memorandum of association of a oompany formed for the pur- pose of purchasing and carrying on the business of C. was subscribed by him for 3,500 shares, which were of £1 each. It was also subscribed by other per- sons, by which the number taken amounted to 6,265 out of a total capital of 7,500 shares ; and the company could only issue fresh shares by special resolu- tion. The articles of association stated that an agreement had been prepared between C. and the company for the sale of the business to the latter for £5,000, of which one-half was to be in fully paid-up shares of the company. This agreement was executed shortly after the registration of the memoran- dum and articles of association, and was filed with the Registrar of Joint Stock Companies. As between C. and the company, the shares for which he signed the memorandum were treated as being the fully paid-up shares which he took as" part of the purchase-money, and he was debited in the books with £3,500 due on the shares, and credited with £5,000 as the price of the business. Held, that C. was entitled to treat the shares for which he subscribed the memoran- dum as the same shares as those for which he sold his business, and that the shares were paid for in cash within the meaning of the 26th section of the act of 1867. lb. 46. M. subscribed the memorandum of a company in November, 1865, for 100 £10 shares, and became a director and chairman. The 100 shares were registered in his name before March, 1866. On the 1st of March, 1866, he signed a written agreement to sell certain land to the company for £1,000, and he afterward conveyed it to the company, signing the usual receipt for the purchase- money. It did not appear that any money was ever paid to him, but his shares were treated as fully paid-up. At a meeting of the company on the 28th of March, 1866, the directors stated that they had bought property on advantageous terms, the vendors having agreed to accept £1,000, part of the purchase-money, in fully paid-up shares. Sometime after the agreement had been entered into a minute was made in the directors' minute book stating that 100 paid-up shares had been allotted to M. in payment of his purchase- money. No shares, however, were in fact allotted to him. The prospectus contained a statement similar to that in the report. The company having after- ward been ordered to be wound up, M. was found on the register for 100 paid- up shares, but the official liquidator applied to put him on the list of contribu- tories for 100 other shares on which nothing had been paid. M., in his affidavits, stated that he had, during the negotiation for purchase, offered to accept the £1,000 in paid-up shares or to invest it in paid-up shares, and that on the com- pletion of the purchase 100 paid-up shares were allotted to him and received by him in satisfaction of the £1,000. Seld, that M. was to be treated only as the holder of fully paid-up shares, for that on the terms of the contract and conveyance the company were bound to pay him £1,000 in cash, and that by this his liability on the 100 shares for which he signed the memorandum of association was satisfied, and that the expressions in the prospectus, the report, the directors' minute, and M.'s affidavits were not sufficient to lead to the con- clusion that M. sold to the company for 100 fully paid-up shares distinct from the shares for which he signed the memorandum. Mayna/i'd's case (Chan. App.), VIII, 727. PUBLIC COMPANY. 413 47. Preferred stockholders, rights of. A company having^ power to increase its capital to such amount and upon such terms, and either with or without special privileges or preferences to the holders of the shares in such increased capital, as they should deem expedient, raised further capital by the issue of preference shares, entitled to a preferential interest of 10 per cent per annum, the amount of such shares to be repaid on six mouths' notice with 35 per cent bonus, such payment of interest, repayment, and bonus to take place before any dividend, interest, or other money was payable to the original shareholders. The company was wound up, and after payment of debts there remained a surplus for distribution. Held, that the company had conferred a preference as to capital, as well as dividend, upon the new shareholders, and that they were entitled to the surplus assets in priority to the original share- holders. Matter of Bangor, etc.. Slate Co. (Eq. C), XIII, 606. 48 .^ The directors of a limited company, under the authority of the articles of association, and with the sanction of a general meeting, issued preference capital carrying a dividend at £10 per cent per annum, payable half-yearly. Seld, on demurrer, that, if the profits of any year were insuffi- cient to pay the dividend in full to the preference shareholders, the deficiency might be made good out of subsequent profits. Webb v. Uarle (Eq. C), XV, 487. 49. Transfer of shares. Where the owner of shares borrows money and deposits with the lender certificates of his shares, and also transfers thereof signed by him, but with the date and name of the transferee left blank, the lender has implied power to fill up the blanks, and the transfers will pass the legal interest if the articles of association do not require a deed ; otherwise only an equitable interest. In re Tahiti Cotton Go. ; Me parte Sargent (Eq. C), VII, 813. 50. Where the articles of association of » company permit a transfer of shares to be made by " instrument in writing," it is not necessary that the transfer should be by deed, even although the uniform practice of the com- pany may have been to require one. lb. 51. Admission of transferee. The deed of settlement of a life insurance company provided that any shareholder should be at liberty to transfer his shares to any other person who was already a shareholder, or who should be approved by the board of directors, and that no person not being already a shareholder, or the executor, etc., of a shareholder, should be entitled to become the transferee of any share unless approved of by the board. Held, that the directors were not bound to disclose their reasons for rejecting a transferee, provided they had fairly considered the question at a meeting of the board ; and that, in the absence of evidence to Jthe contrary, the court would take for granted that they acted reasonably and bona fide. But if there is evidence to show that directors who have such a power have exer- cised it capriciously or unfairly, the court has jurisdiction to interfere, and this jurisdiction may be exercised on a summons under the 35th 'section of the Companies Act, 1883. Matter of Gresham Life Aaauranee Co. (Chan. App.), V,"658. 62. Registration of transfers compelled. The articles of association of a company provided that every member should have one vote for every share 414 PUBLIC COMPANY. up to 100, one for every five shares in the next 100, and one for every ten shares after 300. The directors were empowered to decline to register any transfer of shares made by a member who was indebted to the company ; or, in the case of shares not fully paid up, to a transferee of whom they did not approve. Notices having been issued of a meeting at which would be pro- posed resolutions for winding up the company voluntarily, and for the appoint- ment of a liquidator, the largest creditors of the company, who were also the holders of 1,000 fully paid-up shares, in order to secure full voting powers at the meeting, made nine transfers of 100 shares each to as many nominees of their own, and sent them in for registration ; but the company refused to register the transfers. On motion on behalf of the transferers under the 35th section of the Companies Act, 1862, the company were ordered to register the transfers in time to enable the transferees to vote at the meeting. Matter of Stranton Iron, etc., Go. (Eq. C), VII, ,581. 63. Where a person claiming shares under a legal title applies under sect. 35 of the Companies Act, 1862, to have the register of a, company recti- fied, the court has jurisdiction to decide a question of title between him and another person claiming to be entitled to the shares, but has no j urisdiction to order costs to be paid by such third party. Nor (semble) has the court jurisdic- tion to make an order under that section where the title of the applicant is . equitable only. In re Tahiti Cotton Go.; Ex parte Sargent (Eq. C!.), VII, 813. 54. Upon the occasion of a loan being made by C. to F., the chairman of the T. Company, F. deposited with C. shares in various companies (includ- ing some in the T. Company), and transfers thereof, with the date and the name of the transferee left blank. C. afterward deposited the shares in the T. Company, and the transfers thereof, with S. by way of security for a debt. Subsequently F. , being about to pay off his loan, was informed by C. that he had pledged the T. shares, but did not insist on the share certificates and transfers being delivered up b.efore payment was made. S. afterward filled up the blanks in the transfers, and sent them to the company for registration ; but the company having received notice from F. that he disputed the validity of the transfers, refused to register them. S. applied to the court under sect. 35 of the Companies Act, 1862, to rectify the register by inserting the name of S. for that of F. The articles of association of the company permitted trans- fers to be made by instruments in writing, but the company had always re- quired transfers to be by deed. Held, that the transfers, although not as good as deeds, were valid instruments in writing within the meaning of the articles of association, and conferred on S. a good title to the shares at law as well as in equity ; that S. was entitled to have his name on the register ; that the court had jurisdiction to decide the question of title between S. and F. (who had been served), but had no jurisdiction to order F. to pay the costs ; and that the company, having chosen to side with their chairman, who was in the wrong, must pay the costs of the application. lb. 55. Surrender of shares. A company may, by special resolution, vary its articles so as to give itself power to accept surrenders of old shares in exchange for new. Two thousand £10 shares in a company had been issued, of which 901 (called X shares) had been fully paid up, and on the other 1,099 (called A shares) £2 10s. per share had been paid. Special resolutions were duly passed PUBLIC COMPANY. 415 « that the X shares should be canceled, and two shares of £10 each, with £5 per share paid thereon, given in lieu of each, and that the A shares should be canceled and one share of £10, with £5 paid, be given in lieu of every two of them. These resolutions were assented to by all the shareholders and duly registered, and the shareholders generally accepted in lieu of their old shares (which were called in the proceedings B shares) with £5 each paid. T., a holder of A shares, having thus accepted B shares, sold and transferred them, and in the annual lists sent to the Begistrar, was treated as having then ceased to be a member. About seven years after the pass- ing of the resolutions, the company was ordered to be wound up, and the liquidator placed on the list of contributories the name of T., and also the names of all the other persons who at the passing of the resolutions were holders of A shares, as well as the names of the persons who had become holders of the B shares given in lieu of them. Held, that T.'s name must be . removed from the list, for that the resolutions ought to be construed not as pur- porting to oblige all the shareholders to accept B shares in lieu of their old shares, but only as empowering the directors to effect such exchange with all shareholders who wished it, and that so construed, the resolutions were not ultra vires, but were effectual as special resolutions altering the articles of association, and that a surrender of the old shares made in pursuance of them was valid. Teasdale's Case (Chan. App.), VIII, 723. 56. Cancellation of shares. Certain shares were allotted and accepted as fully paid-up in pursuance of a contract with a trustee for the company, which, through inadvertence, had not been registered in accordance with sect. 35 of the Companies Act, 1867. TTpon discovery of the omission, the directors canceled the shares and removed the name of the allottee from the register, then registered the contract, and subsequently issued fresh shares to the allot- tee. The company was afterward wound up. Held, that the directors had power to rectify a mistake which was common to them and the allottee, and that the transaction could not be disturbed. In re Poole, etc., Co.; Hartley's Case (Chan. App.), XI, 511. 57. Held, also, that a contract with a trustee for a company, adopted by the company, is within the meaning of the 35th section of the Companies Act, 1867. lb. 58. Where bankers have demanded and received unissued preference shares of a railway company as ' ' collatt ral security " for advances they have made on the company's checks, and have been registered on the registry of the company as the holders of such shares, a court of equity will examine into the circumstances of the transaction, and can direct the proper steps to be taken to cancel such registration. Beattie v. Lord Ebury (H. of L.), IX, 64. 59. The order of the House directed the officers of the railway company to take all proper measures for canceling the registration. lb. 60. Forfeiture of shares. There must be properly ap{)ointed directors to make a call or to declare a forfeiture of shares. Garden Q-ully, etc., Mining Co. V. McLister (App. Cas.), XV, 1. 6X. A declaration of forfeiture (for non-payment of a call) of shares in a company registered in Victoria under 37 Vict., No. 328, was made on the 18th 416 PUBLIC COMPANY. of June, 1869, by a resolution of the board of directors, consisting of a quorum of three, H., B., and A., who had been elected (with two others) at a quarterly general meeting of the company, held on the 14th of April, 1869, which meeting had been convened by advertisement, published. on the 8th, 10th, and 13th of April, for the election of a full board of directors. It ap- peared that H. and A. had been previously elected directors on the 14th of January, 1867, had not retired from office as provided by the rules of the com- pany, but had continued to act as directors up to the 14th of April, 1869. Held, that the Said meeting of the 14th of April, 1869, having been held with- out due notice thereof, according to the rules of the company passed under the provisions of 27 Vict., No. 238, and of the business to be transacted thereat, the election of a full board of directors thereby was invalid, and con- sequently the subsequent declaration of forfeiture of the 18th of June, 1869, was also invalid. Even if H. and A. had before that election legally held office, they could not thereafter act under their former title, for the election of a full board, though invalid, necessarily involved the retirement of those, if any, who up to that time had legally held the office of director. lb. 62. A declaration of forfeiture of shares, invalid under the rules of a company registered under 37 Vict., No. 338, before Act No. 354 came into force, is not rendered valid by the latter act. lb. 63. Mere laches does not disentitle the holder of shares to equitable relief against an invalid declaration of forfeiture. lb. IV. Contracts by and with companies. 64. Dealings ivith de facto directors. Bankers who have funds of a com- pany (formed under the Companies Act, 1863) in their hands may (acting iona Jlde) lawfully honor the checks of the directors of the company, signed according to a form sent by them to the bank, without being bound, previously, to inquire whetlier the persons pretending to sign as directors have been duly appointed to office, in conformity with the provisions of the memorandum and articles of association. Mahony v. East Holyford Mining Go. (H. of L.), XIV, 237. 65 W., in concert with some friends and dependents of his, started a company called a mining company. The memorandum and articles of asso- ciation were registered. Subscriptions were obtained from persons becoming shareholders, and these subscriptions were paid into a bank, which had been described in the prospectuses of the company. The bankers received a formal notice, signed by the person who described himself as the secretary of the company, that they were to pay the checks signed by " either two of the ■ following three directors," and countersigned by himself, in accordance with a " resolution passed this day ; " and the names of the three persons described as directors, and their signatures, were inclosed with the " resolution." The bankers from time to time, while the business of the company appeared to be going on, received checks signed and countersigned as described, and duly honored them. When the fund had been almost entirely drawn out, the company was ordered to be wound up. It then appeared that there never had been a meeting of shareholders, nor any appointment of directors or of a secretary, but that the persons who had got up the company had treated them- PUBLIC COMPANY. 417 selves as directors and secretary and appropriated the money obtained from the subscriptions. Held, that the oiBcial liquidator could not recover from the bankers the amount of the checks which, under the circumstances disclosed in the case, they had thus bona fide paid. lb. 66. Where those who draw and those who {bona fide) honor checks, intend them to operate on a certain account, no objection can afterward be taken^that that account is not specifically mentioned on the face of the checks. lb. 67. It is the duty of shareholders of a company to see that its business is properly done, and If they allow the business to be done by unauthorized persons acting as directors, they are bound by their acts. lb. 68. Sale of business and assets. The directors of a company entered into an agreement with A. to sell him the business and assets of the company, upon the terms that the directors should forthwith call an extraordinary meeting and endeavor to get the sanction of the shareholders to the carrying out the sale, and that on such sanction being obtained he should pay the directors £350 in cash, and if he should succeed in establishing a new company for the same purpose, should, within three months from the allotment of shares, pay a further sum of £1,250 in cash, and £2,000 in fully paid-up shares of the new company. The company, at an extraordinary general meeting, passed a reso- lution for affixing the seal of the company to the agreement, which was done, and A. paid the £250. Held, on bill by a dissentient shareholder, that the agreement was ultra vires and invalid, and that effect could not be given to it under sect. 161 of the Companies Act, 1862, for that section only authorizes sale to a company, not to a person about to form a company. Bird v . Bird's Pat&nt Deodorizing, etc., Go. (Chan. App.), VIII, 909. 69. Acts ultra vires. By one of the articles of association of a joint-stock company it was provided that the company shall not, under any circumstances, purchase its own shares." The directors, having advanced money to the pro- moters of the company to enable them to take up shares which they (the pro- moters) had bought, but for which they were unable to pay, agreed, by resolu- tion, to abandon their claim to have the money returned, in consideration of 400 shares (upon which £10 per share had been paid up) being given up to them to be canceled. Semble, that this was a " purchase of shares " within the prohibition above mentioned. Phosphate of Lime Co. v. Oreen (Com. PI.), I, 98. 70. ratification. A company was established for the working of two mines, with a nominal capital of £300,000, divided into 13,000 shares of £25 each. DifBcuIties arising as to the title to one of the mines, and the defend- ants, who had negotiated the purchases for the company, and were to receive £10,000 from the vendor of each mine, and had received the £10,000 upon the completion of the purchase of the other mine, having bought 400 shares in the market, and not being prepared to take them up, applied to the company for assistance, and the latter advanced them £6,500 upon the defendants under- taking to return it in the event of the purchase of the second mine not being completed within three months. The shares were takeji up, but the contract for the purchase of the mine ultimately went off. The directors then called upon the defendants to return the £6,500, and, after much negotiation, it was 53 418 PUBLIC COMPANY. arranged that the defendants should transfer .to the company the 400 shares (£10 paid up), in satisfaction and discharge of the claim of the company against them. This transaction took place in August, 1866 ; and in March, 1867, at a meeting of the shareholders, it was agreed that the company should go into liquidation, and its business be transferred to a new company with a dimin- ished capital and £10 shares, the directors of the new company being the direct- ors of the old one, and the shareholders in the old company being holders of share for share in the new one. A report of the directors was read, showing the reasons for the liquidation and transfer, and that the diminution of the capital was owing partly to the abandonment of the purchase of the second mine and partly to " shares forfeited for non-payment of calls." At this meet- ing an account was handed to each shareholder present, in which the sum of £4,000 was set down as the price of "shares canceled ;" and the account d£ the defendants in the company's ledger was credited with £4,000, as per shares forfeited account." By the articles of association of the company the directors were prohibited from purchasing their own shares ; but they had power to compromise debts due to them, and to forfeit shares for non-payment of calls. Held, that, assuming that the compromise with the defendants by the accept- ance and cancellation of the 400 shares was ultra vires of the directors, the sub- sequent conduct of the shareholders in assenting to the transfer of the old to the new company, with knowledge or the opportunity and means of knowing, if they thought proper to in.quire, that such transfer was in part founded upon such cancellation, was a ratification and acquiescence in what the directors had done, and sustained a plea of accord and satisfaction to an action brought in 1870 against the defendants in the name of the old company for the recovery of the £6,500 advance. lb. 71. To show assent and acquiescence in such a case it is not necessary (or possible) to prove the acquiescence of each individual shareholder. It is enough to show circumstances which are reasonably calculated to satisfy .the court or a j ury that the thing to be ratified came to the knowledge of all who chose to inquire, all having full opportunity and means of inquiry. lb. 72. There were two companies, C. and "W., the directors of each of which entered into business arrangements with the other. The W. company had six directors. A deed was executed in February, 1865, by the 6th clause of which the W. directors agreed that three of the C. directors should at once become members of the W. board ; that on certain events happening a fourth director of the W. board was to be appointed by the C. directors ; and that then there should be no further appointment of W. directors except with the sanction of the C. directors. Held, that this was illegal ; that the stipulation affected the whole of the rest of the deed, and made it illegal and void. James v. Eve (H. of L.), VII, 41. 73. By other arrangements in the same deed, the C. directors undertook to do such works as the W. directors might appoint ; to provide materials, to " place " the shares of the W. company, and all the paid-up calls of the W. company were to be paid to the C. company, which was to make all necessary payments for the W. company (acting as its banker), to pay for two years, 7 per cent on the capital paid up by its shareholders, to render accounts of works done, and to receive 35 per cent on all moneys received and paid on PUBLIC COMPANY. 419 account of the W. company. Held, that the payment of the 7 per cent, and that of the 35 per cent, were both illegal. lb. 74. The deed of February, 1865, wag declared by another deed in May, 1866, to be canceled except so far as any thing had been done under the former. Held, that as nothing was shown to have been done under the deed of February, 1865, except by some payments of the 7 per cent interest on the calls paid up, and by the receipt and payment of moneys, as to which the C. directors had really acted only in the character of bankers to the W. company, there was no claim for the agreed commission. lb. 75. The Laffitte Company was formed to purchase the business of C. Laffitte & Co., of Paris. "JJie Paris firm would not complete unless 40,000 shares were taken. To satisfy them, the International Company, which was promoting the Laffitte Company, guaranteed a subscription for 40,000 shares, and applied to the National Bank to discount their promissory notes for £300,000, which the bank agreed to do upon the guarantee of the Laffitte Company, which was signed by Kitson, Qautray and Bate, three of the direct- ors, and sealed by the company, that; until the notes were paid, the Laffitte Company would leave in the hands of the bank an amount equal to the sum remaining due on the notes, and that if the notes were not paid the bank might pay them out of such amount. The £200,000 was accordingly carried to the credit of the International Company, who provided shareholders and paid the deposit and allotment money of £5 per share out of the £300,000, which thus got to the credit of the Laffitte Company at the bank. The bank, in order to enable the Laffitte Company to obtain a settling day on the Stock Exchange, gave a certificate that there was £300,000 standing to the credit of that company. Afterward, the promissory notes not being taken up at matur- ity, the National Bank paid them out of the £300,000. After an order had been made for winding up the Laffitte Company, a shareholder in that com- pany filed his bill on behalf of himself and all other shareholders, except the defendants, against the directors of the Laffitte Company and against the National Bank, to recover the £300,000 for the benefit of the Laffitte Company as having been applied in breach of trust. Held, that the suit ought to have been by the Laffitte Company, and that a bill by one shareholder on behalf, etc., could not be sustained. Qray v. Lewii) (Chan. App.), VII, 539. 76. Held, further, that the remedy, supposing the Laffitte Company to have a right to the £300,000, would have been at law by an action against the bank, for that the guarantee was ultra Tyires, and known to the bank to be so, and was, therefore, no answer to the demand of the Laffitte Company for the sum which had stood to their credit. lb. 77. Held, further, that the £300,000 never belonged to the Laffitte Com- pany at all, for that the whole transaction was an illegal and fraudulent scheme, out of which no rights could arise as between the parties to it. lb. 78. After this the National Bank, by its public officer, filed a bill against Lewis and Henshaw, who were two of its own directors, and McKenna, its managing director, to compel them to make good the loss which the bank had sustained through the above transactions, and Vice-Chancellor Malins made a decree accordingly. On appeal by defendants, held, that, although where A. contracts to indemnify B. against a claim, and a judgment is obtained 420 PUBLIC COMPANY. against B. in an action bona fide defended by him, and he pays the demand, A. cannot be heard to contend that the judgment was erroneous, the case is otherwise where there is no contract to indemnify, but only a claim to indemnify, founded on a breach of trust ; and that the defendants were not estopped from saying that the National Bank had incurred no liability to pay any thing to the Laffltte Company; and that as in the judgment of the Court of Appeal the National Bank had not incurred any such liability, the bill must be dis- missed, but without costs, on account of the objectionable nature of the trans- action. Parher v. Lewis (Chan. App.), VII, 539. 79. The H. Railway Company, whose line ran into the defendant com- pany's line at B. , had a Parliamentary right to ugp the defendants' station at B. The plaintiff company had running powers over the defendants' line, and were anxious to run trains through the B. station over the H. line. The H. company applied to Parliament for power to lease their line to the plaintiffs, but through the opposition of the defendants the proposed bill was thrown out. The H. company then entered into an agreement with the plaintiffs, terminable on six months' notice, by which they agreed to allow the>plaintiffs to use the H. line and all its stations, sidings, etc., and to afford them every facility for so doing ; the plaintiffs to keep the line in repair,and aippoint and pay their own officers and fix the rates and fares of through traffic, paying to the H. company a proportion of the through rates and fares by way of com- muted toll. I It was also provided that if the H. company should desire the plaintiffs to undertake the local traffic of the H. line the plaintiffs would do so, paying the H. company a proportion of the fares. The plaintiffs, under this agreement, claimed the right to run their trains over the defeiidants' junction at B., and filed their bill to establish the right which the defendants resisted, on the ground that the agreement between the plaintiffs and the H. company was ultra vires and illegal. Meld, that the agreement was not idtra vires or illegal, and that the plaintiffs were entitled to the relief prayed. Midland Railway v. Oreat Western Railway (Chan. App.), VII, 408. 80. A company, created a corporation under the Companies Act, 1863 (35 & 36 Vict.,c. 89), is not thereby created a corporation with inherent com- mon-law rights. Ashbury Ry., etc., Go. v. Riche (H. of L.), XIV, 43 ; reversing S. C, X, 396. 81. The objects of a conapany proposed to be incorporated under that act, as stated in the memorandum of association required by the 8th section of the act, cannot be departed from, except so far as the 13th section permits the change. The memorandum is the charter of the company. lb. 82. Consequently a contract made. by the directors of such a company, upon a matter not included in the memorandum of association, is ultra vires of the directors, and is not binding on the company. lb. 83. Nor can such a contract be rendered binding on the company though afterward expressly assented to at a general meeting of shareholders. Being in its inception void, as beyond the provisions of the statute, it cannot be ratified even by the assent of the whole body of shareholders. lb. 84. A company was registered under the Joint" Stock Companies Act, 1863. Its objects, as stated in the memorandum of association, were these : PUBLIC COMPANY. 431 •' to make, and sell, or lend on hire, railway carriages and wagons, and all kinds of railway plant, fittings, machinery, and rolling stock ; to carry on the business of mechanical engineers and general contractors; to purchase, lease, work, and sell mines, minerals, laud, and buildings ; to purchase and sell, as merchants, timber, coal, metals, or other materials, and to buy and sell any such materials on commission or as agents.'' The directors agreed to purchase a concession for making a railway in A foreign country, and afterward (on account of difficulties existing by the law of that country), agreed to assign the concession to a Socifite Anonyme formed in that country, which societe was to supply the materials for the construction of the railway, and to receive periodical payments from the English company. Held, that this contract, being of a nature not included in .the memorandum of association, was ultra Hires not only of the directors but of the whole company, so that even the subsequent assent of the whole body of shareholders would have no power to ratify it. lb. 85. In order to constitute a ratification of any contract which, though not absolutely void, as unwarranted by the memorandum of association, had been in excess of the powers possessed by the directors under the articles of association, the assent of all the shareholders is necessaryy and such assent must have been given with full knowledge of the character of the act rati- fied, lb. 86. The 50th section only authorizes alterations which are within the limits provided by the memorandum of association. lb. 87. Loan for illegal purpose. Upon the winding up of a limited company, Tteld, that a claim against it by another company for a loan, negotiated through one who was a director of both companies, and a solicitor who acted for both, was entitled to be proved against the borrowing company, although the money might have been used indirectly for the illegal purpose of buying up its shares in the market. In re Marseilles Extension Railway Co. (Chan. App.), I, 490. V. Actions by and against companies. 88. By shareholders. Where the majority of a company propose to benefit themselves at the expense of the minority, the court may interfere to protect the minority. In such a case the bill is rightly filed by one shareholder on behalf of the others and against the company. Menier v. Hooper's Telegraph Works (Chan. App.), VIII, 905. 89. Where a shareholder in an incorporated company filed his bill on behalf of himself and all other shareholders against the directors and the promoters of a bill in Parliament for a rival purpose, alleging ^n illegal pay- ment of the company's money to such promoters to buy off their opposHion, and praying that it might be replaced, held, on demurrer, that it was not sufficiently alleged in the bill that the payment was ultra vires. Held, also, there being no allegation that the company would not sue, that it was not a case in which the suit could be maintained in its present form, and that the demurrer must be allowed, with leave to amend. Russell v. Wakefield Water- im-ks Co. (Eq. C), XV, 448. 90. There are exceptions to the general rule, that the company, and not 4:32 PUBLIC COMPANY. an individual corporator, must sue when the trust funds of the company have been misapplied. Such a corporation may sue when there is an injury to the company for which there is no other adequate remedy, as, where the corpora- tion is controlled by the evil-doer, or refuses to sue, or where it is necessary to do so in order to Restrain the corporation from commencing or continuing the doing of something which is beyond it powers. lb. 91. The articles of association of a company gave power to the chair- man at any general meeting of the company, with the consent of the meeting, to adjourn the meeting, and also provided for taking a poll if demanded by five shareholders. At a general meeting of the company the adjournment of the meeting was moved, and, on being put, was declared by the chairman, who was one of the directors, to be carried. A poll was duly demanded, but the chairman ruled that there could not be a poll on the question of adjourn- ment, and left the room. One of the shareholders filed a bill on behalf of him- self and all other shareholders except the directors, against the directors and the company, stating these facts, and alleging that the course taken at the meeting was taken in collusion with the directors, with a view of stifling dis- cussion, and that the directors were intending to carry out certain measures inj urious to the company without submitting the terms to a general meeting, and praying for a declaration that the conduct of the chairman was illegal and improper, and for an injunction to restrain the directors from carrying out the proposed arrangements without submitting them to the shareholders for their approval. Held^ on demurrer, that the bill could not be sustained, inasmuch as it asked the interference of the court in the internal management of the company. McDougaM v. &ardmer (Chan. Div.), XV, 624 ; reversing S. C, id. 388. 92. Whether, on a motion for the adjournment of a meeting of share- holders, the votes ought to be taken according to the number of shareholders or of the shares they represent, qiimre f lb. 93. For restoration to membership. Declaration, alleging that the plaintiff was a member of a mutual insurance society, which insured members against losses to ships entered and insured in the books of the society, on a deposit being made of £5 per cent on the amount insured ; that the defendants were the committee of the society, by the rules of which they had the entire con- trol of the funds and affairs of the society, and were to determine on the ad- mission or rejection of ships insured or proposed for insurance ; that by another rule, " if the committee shall at any time deem the conduct of any member suspicious, or that such member is for any other reason unworthy of remaining in this society, they shall have full power to exclude such member, by directing the secretary to give such member notice in writing that the com- mittee have excluded such member from the society, and, after the giving of such notice, such member shall be excluded, and have no claim, or be respon- sible for or in respect of any loss or damage happening ■ after such notice ; " that the plaintiff, as such member, had entered a ship on the books of the society, and had paid the deposit, and was thereupon entitled to an indemnity for loss happening to the ship ; that the defendants, well knowing the prem- ises, but " wrongfully, collusively, and improperly contriving to deprive the plaintiff of the benefit of such indemnity, did wrongfully, collusively, and PUBLIC COMPANY. 423 improperly expel the plaintlfiF from the society on the alleged ground that his conduct was suspicious, or that he was for some reason unworthy of remain- ing in the society, without giving the plaintiff, or any person on his behalf, any opportunity whatsoever of heing heard before them, and without, in fact, hearing the plaintiff, or any person on his behalf, in defense and vindication of the plaintiff's conduct as a member of the society with reference to the said ground of expulsion;" whereby the plaintiff lost the benefit of an indemnity for damage which his ship subsequently sustained, and was otherwise dam- nified. On demurrer, held, that the declaration showed no cause of action. By Kelly, C.B., Pollock and Amphlett, BB., on the ground that, assuming the allegations of the declaration to be true , the act of the defendants in ex- pelling the plaintiff without giving him an opportunity of being heard was void ; that the plaintiff, therefore, still remained a member of the society, and had sustained no damage. By ClbasbV and Pollock, BB., on the ground that the declaration did not sufficiently charge mala fides. Wood v. Wood (Exch.), X,372. 94. Q;iimre, by Cleasby and Amphlett, BB., whether any action would lie" against the defendants for acts done by them in the discharge of their functions as members of the committee? lb. VI. Winding up; contribtjtion. 95. Action for 'nrinding up. A bill was filed against a railway company by a creditor and shareholder of the company on behalf of himself and all other creditors and shareholders, which stated that under an act of Parliament the company was to transfer its property to another railway company and be dis- solved, the purchasing company issuing to the selling company stock to a large , amount ; that the proceeds of the sale of the stock were to be applied by the selling company in discharge of certain liabilities, and the surplus was to be divided between the creditors and preferential shareholders ; that the selling company had transferred its property, but had not paid its creditors or share- holders ; and the bill prayed that the company -might be wound up and the accounts taken. Held, that a demurrer to the bill for want of equity would not lie, but that the bill was demurrable for multifariousness and misjoinder, by reason of the adverse interests of the preferential and ordinary shareholders, and a demurrer ore tenus allowed. Ward v. Sittinghourne, etc., By. Co. (Chan. App.), X, 545. 96. Priority eunong creditors. S. recovered judgment against a railway company, sued out an elegit, and delivered it to the sheriff, who found that the company were possessed of the railway, which was in the occupation of another company under a working agreement. The writ was duly registered. After this a scheme of arrangement was confirmed by the court, which scheme au- thorized the company to create certain amounts of debenture A. stock and debenture B. stock. Debenture A. stock was to be applied, first, in payment of the mortgage debentures of the company, and certain costs ; the stock ap. plied to those purposes having .priority in payment of interest over the residue of that stock, which residue was to be applied in paying unpaid vendors of land. Debenture B. stock was to be applied in paying off debentures which were not mortgages on the undertaking, and other debts. The income of the 424' PUBLIC COMPANY. company was to be applied: (1) In paying rent charges granted to vendors of land ; (3) in payment of the interest on preferred debenture A. stock ; (3) in payment of the interest on the residue of that stock ; (4) in payment of inter- est on debenture B. stock ; (5) in payment of dividends to shareholders. Held, by the master of the rolls, that S. was entitled to take debenture B. stock In satisfaction of his judgment, but had no higher right. S. appealed, contend- ing that he was not bound by the scheme, and had a charge on the income in priority to the A. and B. stocks, by whomsoever held, for that the priority of those unpaid vendors and mortgagees who had accepted payments in those stocks had been lost by extinguishment of their former securities. Stmena v. Mid- hants By. Co. and London Fin. Ass'n v. Stevens (Chan. App.), VII, 555. 97. Held, on appeal, that S. was not bound by the scheme, but that as it did not lessen his rights, neither did it increase them, that he, therefore, was not entitled to such priority as he claimed ; but that, subject to the rights of unpaid vendors, the income must, in the first place, to an amount equal to that of the principal, interest, and costs due to vendors of land who had accepted payment in A. debenture stock, and of the principal, interest, and costs due to holders of debenture mortgages issued before the filing of the sheriff's return, be applied according to the scheme. lb. 98. Set off. In winding up a company, debts cannot be set off against calls. Blaek & Oo.'s case (Chan. App.), IV, 880. 99. A contractor agreed with a company to supply them with steam engines at a fixed price, and to take shares in the company, payment of the calls on which should not be enforced until at least two engines should have been- paid for, and the contractor might set off against the calls the money due to him. The contractor took shares accordingly, and made two engines for the company, which were not taken by the company or paid for. The company was afterward ordered to be wound up by the court, and a call was made by the liquidator. Held, that the contractor was liable as a stockholder to con- tribute, and could not set off the amount due to him from the company under his agreement as damages or otherwise against the amount due by him on the calls. lb. 100. Ijiability to contribute. The directors of a company having, under the articles of association, power to buy shares in the company and to appoint a manager, appointed a manager. A shareholder agreed with the manager for the sale to the company of his shares, and executed a transfer of his shares to two directors who were trustees for the company. The transfer was not ex- ecuted by the two directors, but was registered. Held, that the directors had no authority to delegate to a manager the power to buy shares. In re County Palatine Loan, etc., Co.; CartmeU'scase (Chan. App.), X, 673. 101. Held, on the facts, that the directors had not delegated that power or ratified the transaction with the shareholder ; that the directors were not considered to have such knowledge of the books of the company as to be affected with knowledge of the transaction, and that the transfer was invalid, and that the shareholder was a contributory. lb. 102. Promoters. Under the jurisdiction to adjust the rights of the contribu- tories among themselves given by the Companies Act, 1863, s. 109, the court PUBLIC COMPANY. 435 will not, under the winding up, enforce an> alleged contract by the promoters to indemnify persons signing the subscription contract against all liability in respeet of the shares, by directing a call payable primarily by the promoters only. Addison's Case; In re Brampton, etc., By. Co. (Eq. C), XV, 514. 103. The authority of the clerk of a solicitor engaged in getting up a railway company to bind the company, by a representation to persons signing the subscription contract that they would not be called upon to pay any thing unless the line was made and opened, discussed. lb. 104. A solicitor, who was promoting a railway company, induced vari- ous persons to sign the subscription contract, by an assurance that they should incur no liability if the line was not made. Some of these persons were pro- visional directors. The act was obtained, and contained the usual clause that the preliminary expenses should be paid by the company. The line was not made. The undertaking was abandoned, and the company ordered to be wound up. The solicitor carried in a claim as creditor for professional servi- ces in obtaining the passing of the act. •This claim was opposed by some of the contributories, on the ground of the above assurances. Held, that the solicitor was entitled to prove, for that the assurances made by him could only operate as a contract to indemnify the individuals to whom they were made, and did not exonerate the company in its corporate capacity. Matter of Bram- ton, etc.. By. Co.; Shaw's Claim (Chan. App.), XII, 691. 105. Directors. Shares of a company were (pursuant to an ultra vires reso- lution of the board) purchased and transferred into the name of A., a director, in trust for the company. Held, that A. was entitled to contribution from the directors who concurred in the transaction, for calls which he had paid. Ashurst V. Fowler; Sarne v. Mason (Bq. C), XIII, 745. 106. A local director present at a meeting in London, at which the minutes of the last meeting, when it was resolved to transfer the shares to a trustee for the company, were read and confirmed, though not present until after the commencement of the proceedings, and denying all knowledge of the resolution or transaction, held, to have been affected with notice, and liable in respect of the transaction. lb. 107. But another local director, present only at a subsequent meeting, at which the formal minute of approval of a transfer to A. was confirmed, Tield, not to have been affected with notice, and not liable. lb. 108. Proposed director. Before the formation of a company for the pur- chase of certain property the vendors agreed with H. that he should become a director, they providing him with the forty shares necessary to qualify him. He thereupon signed the memorandum of association in respect of forty shares, and became a director. At a meeting of the directors cheeks were drawn on the bankers of the company and given to the vendors in payment of part of the purchase-money. One of these checks being for the same amount as that due on H.'s shares was given by the vendors to H., and was by him paid in to his own bankers. He then drew a check on his own bankers, and gave the check to the company in payment of the sum due on his shares. The com- pany was afterward ordered to be wound up. Seld, that H., being a director of the company, could not retain money so paid to him by the vendors; 54 436 PUBLIC COMPANY. that the money had never ceased to be the money of the company ; that there had in fact been no payment by H. of the money due in respect of the shares; and that he was liable as a contributory in respect of these shares. Canadian Oil Works; In re Hay's Case (Chan. App.), XIV, 809. 109. In March, 1865, Q. was asked by the board to become a director of a limited company. He attended two board meetings in March and April and signed the attendance book. He also saw and permitted to be issued in April, for the purpose of raising further capital, a prospectus, in which his name appeared as a director of the company. On the 4th of May Q. wrote to say that as his name had been of no assistance to the company he would with- draw. On being afterward asked by the secretary to qualify as director, he wrote on the 3d of June to say, that if the secretary considered he (G.) re- mained as director of the company, he (G.) begged leave again to withdraw; and that he had no intention of departing from his letter of earlier date. G. never received any director's fees ; he did not expressly agree to take, nor did he apply for any shares, and -none wece ever allotted to him; nor was any fur- ther step taken until the winding up of the company in 1870. No application was made against G. in the winding up until the year 1874. The court having found upon the facts that Q. never had a fixed intention of becoming a director, though for some weeks he was so called, held (independently of the lapse of time), that G. was not liable to be placed on the list of contributories for the qualification number of shares ; and summons of official liquidator, seek- ing to have him settled on the list, dismissed, but without costs. In re Free- hold, etc., Co. ; Green's Case (Eq. C), X, 748. 110. Allotment rescinded. A company was formed in 1871 with a, capital divided into shares of £5 each. The capital not having been all taken up, the directors passed a resolution that each of the existing shareholders should have the option of taking the unissued shares at £1 each in proportion to his holding. Allotments were made of shares in pursuance of this resolufton to various persons, including B., one of the directors. Afterward it was discov- ered that the transaction was ultra vires, and the directors passed a resolution rescinding their previous resolution and the allotments, and B.'s name was never placed on the register of shareholders in respect of them. The com- pany having been wound up compulsorily, held, that the rescission was valid, and that B. was not a contributory in respect of the shares so allotted to him. In re Essex Brewery Co.; Barnett's ease (Eq. C), X, 819. 111. Supposing it to be within the power of each of two parties to make a compromise, all that a court of justice has to do with respect to it is to ascertain that it has been iona fide made ; and if so made, imless manifestly ultra vires of the parties, a court of j ustice ought to respect it, and not allow it to be questioned. Dixon v. Evans (H. of L.), IV, 1. 112. W. was an official in Scotland of an English company ; the com- pany desired to have a board of directors there. W. suggested to D., who lived in Scotland, to take shares and become one of the intended directors. D. objected on the ground that it was not a company of limited liability; W. as- sured him that he should be secured against loss, and that a bill was then about to be presented to Parliament to limit the shareholders' liability. D. thereon consented, and W. applied in his name for ten shares, obtained an PUBLIC COMPANY. 42? allotment of ten, and paid the deposit on them. This deposit was never repaid by D. to W. D., at W.'s request, signed « proxy paper, and also a receipt for a dividend, which, however, was in fact paid to W. The bill in Parliament was not passed. Some time afterward a call was made on D. in respect of his shares, of which he took no notice ; another call was made ; he denied his liability, and desired W. to state the facts to the directors, and to claim his discharge from liability. W. did so, and the directors, who, by the resolution of a general meeting, possessed powers to make compromises in disputes with shareholders (though not, in terms, to cancel shares), consented that, on D. 's paying a certain call then due, his ' shares should be canceled. The money was paid and D.'s name was struck out of the list, and a balance sheet, with his name struck out, was presented at a general meeting, as containing a list of persons whose shares had been canceled. So things remained till some years afterward, when the company was ordered to be wound up, and D.'s name was put upon the list of contributories. Seld, that it must be removed therefrom ; that the directors had the power to make a compromise of a disputed claim ; that this case came within the power, and that the power had been bona fide and rightly exercised. lb. 113. Where a company is being voluntarily wound up under the au- thority of the court, the liquidators cannot recognize the release of one of its contributories, declared by a deed of the directors, without first obtaining the sanction of the court. James Y. May (H. of L.), VII, 35. 114. Application conditional. A. signed an application for shares in «. company upon condition that he should be appointed secretary, and his ac- ceptance of the office was to be subject to further inquiries, which he had caused to be made respecting the position of the company. The shares were allotted the next day, but A., in consequence of information he received, declined the appointment, and required that the allotment should be canceled. The company was wound up voluntarily, and A.'s name was placed on the list of contributories. Held, that the application for shares was conditional, and the condition not having been fulfilled, A.'s name must be removed from the register and list of contributories, and as he had been placed there without any justification, he must receive costs as between solicitor and client by way of damages, under sect. 35 of the Companies Act, 1863, for the extra expenses incurred by him. Wood's Case (Eq. C), V, 837. 115. W. entered into an agreement • with a person as trustee of an intended company for the sale to the company of a property for a certaiA sum in cash and a certain number of fully paid-up shares. The agreement was not to be binding unless adopted by the company when formed. The com- pany was formed, and the agreement was set out in the articles. W. applied to the appellants to become directors, which they agreed to do upon his promis- ing to transfer to them fully paid-up shares to qualify them. They acted as directors, and adopted the agreement for sale. The number of shares requi- site for the qualification of a director was five, but after the completion of the purchase thirty paid-up shares were, by the direction of W., allotted to each of the appellants, and they were entered on the register as holders each of thirty fully paid-up shares, and received certificates to that effect. An order was afterward made for winding up the company, and the Master of the Rolls 42-8 PUBLIC COMPANY. settled them on the list of contributoriee for thirty unpaid shares each. HM, on appeal, that the appellants, as to the shares allotted to them, stood in the same position as if those shares had been allotted to W. and transferred to them by him ; and that, as thare was no contract between them and the com- pany that they would take shares independently of their accepting certificates, stating them to be the holders of these fully paid-up shares, they coulfl not be placed on the list of contributories as holders of Unpaid shares ; and the order of the Master of the Bolls was discharged without prejudice to any application that might be made against them under the Companies Act, 1863, sect. 165, or otherwise, on the ground that they had entered into a corrupt bargain with W. Ga/rling's, Hespeler's and Walsh's Oases (Chan. Div.), XV, 676. 116. The S. Insurance Company, which was a Scotch company, was empowered by its articles of association to sell and dispose of its business to any other company ; but the articles contained no express power to amalga- mate with another company. By an agreement between the S. company and the E. company, the S. company agreed to transfer its business to the E. com- pany, on the terms that the shareholders in the S. company should receive shares in the E. company in exchange for their shares in the S. company. The agreement was approved by the shareholders of the S. company at a general meeting, and a deed of transfer was executed by the company and sent to the E. company, but before its execution by the E. company had been completed according to the formalities of the Scotch law, a petition was presented under which the E. company was wound up. D., n shareholder and director of the S. company, sent in his share certficates to the secretary of his company to be exchanged, and certificates of shares in the E. company were forwarded to him in exchange, but he did not answer the letter or sign the receipt for the shares ; and after the petition for winding up the E. company had been presented he returned the certificates and refused to accept the shares, ffeld, first, that the amalgamation was ultra vires, not being a sale within the powers of the S. company. Dougan's Case ; In re Empire Assur- ance Co. (Chan. App.), VI, 478. 117. Secondly, that if it had been intra vires, it was never completed ; and, thirdly, that although D. had taken a prominent part in the negotiations, his sending in his certificates was conditional on the amalgamation being valid and finally completed ; and that, having entered into no personal nego- tiation with the B. company, he 'Was not bound to be a shareholder in that company. His name, therefore, was removed from the list of contribu- tories. lb. 118. An arrangement was made for an amalgamation between two companies. A holder of half paid-up shares in the selling company applied, according to the terms of the arrangement, for half paid-up shares in the buy- ing company, and received an answer that shares had been allotted to him, credited with the proportionate part of the net assets of the selling company. His name was placed on the register of shareholders. He afterward applied for the certificates of his shares, but never received them. The buying com- pany was afterward wound up, and the amalgamation was decided to be void. Held, that as the answer to his letter of application contained fresh terms, those two letters did not constitute a contract to take shares ; and that his PUBLIC COMPANY. 439 application for the certificates did not amount to an acceptance of the fresh terms, and he did not become a stockholder of the buying company, and was not liable to contribute as such. In re United Ports, etc., Ins. Co.; Beck's Case (Chan. App.), VIII, 939. 119. An agreement to place shares In a company is not equivalent to an agreement to take shares, and the person making it is not liable to be placed on the register as a member, although he may be liable to an action for damages if he fails to perform his contract. Gf. agreed with the directors of a company that he would place 1,000 shares In consideration of his being appointed their agent at Hamburg. The directors placed his name on the register of share- holders for 1,000 shares ; bat did not inform him of it and sent him no letter of allotment. It was afterward proposed that there should be a second issue of shares, and in October, 1869, G. wrote a letter to the manager promising to keep for himself the 1,000 shares which he had undertaken to place, and to pay for them out of his commission on the second issue. The second issue of shares was never made, by reason of the failing credit of the company. In February, 1870, G. was called upon by the directors to pay the calls on 1,000 shares, and in reply he repudiated the shares on the ground that no second Issue had been made, but took no measures to have his name removed from the register. About a month afterward the company was wound up. Edd, first, that Or. could not be put on the list of contributories in respect of his undertaking' to place the 1,000 shares. Oorrissen's Case ; In re Monarch Ins. Co. (Chan. App.), VI, 456. 120. Secondly : That his subsequent agreement to keep the shares for himself was conditional on the second issue of shares being made, and that as the condition failed through no fault of his, he was not bound to take the shares. lb. 121. Thirdly : That he was guilty of no laches in not applying to have his name removed from the register before the company was wound up. lb. 122. Subscriber. An applicant for shares in a company denied that he had received the letter of allotment, which was posted in London on the 16th of March, and should have arrived on the 17th ; and, having written on the 17th recalling his application, applied to have his name removed from the list ,of contributories. Held, that the unsupported evidence of the applicant was not sufficient to prove that the letter of allotment which was posted, had not been received, and that the name must, therefore, be retained upon the list. The court expressed an opinion that if the letter of allotment had not been received, the contract to take shares would still have been binding upon the applicant as soon as the letter was posted. Wall's Case (Eq. C), V, 686. 123. W. D., one of the seven persons who subscribed the memorandum of association of a company, to work a certain concession, kgreed to take 100 shares. A recital of the articles of association was that E., who assigned the concession to the company, had agreed to cause to be allotted to the persons subscribing the articles, shares to be deemed fully paid up, and the fifth article stated that the shares of each subscriber of the memorandum should be allotted to him as fully paid up, and that a competent number of shares should be allotted to B. in pursuance of the arrangement which had been pre- viously come to. The company was registered on the 23d of September, 1865, 430 PUBLIC COMPANY. and on that day the directors issued to B., for work already done, etc., etc., £50,000 in dehentufes and 4,000 shares. W. D. was a director. On the 3d of October, 1865, B. requested the secretary to place shares of the 4,000 in the names of the persons mentioned, W. D. being one of them, for 100 shares. The com- pany was afterward ordered to be wound up. The oflBcial liquidator placed the name of W. D. on the list of contributories in respect of the 100 shares for which he subscribed, and on summons asking that a call of £3 a share might be made, held, that W. D.'s name had been rightly placed on the list, and that he must pay the call, and that it was not competent to persons who had bound themselves by the memorandum to take and pay for shares, to introduce an' article into the articles of association to the effect that they should not be called upon to pay any thing. Dent's Case (Bq. C), V, 905. 124. Transferor. The deed of settlement of a company provided that when a shareholder wished to transfer his shares he should leave a notice at the office of the company, and that the directors should consider the proposal and signify their acceptance or rejection of the proposed transferee ; and that, if they should reject the proposed transferee, and should not within fourteen days procure some other person to take the shares at the market price, the proposed transferee should be considered as approved by the directors, and should be entitled to take the transfer accordingly. The company agreed with the M. corporation for a transfer to it of the company's business, iind that the shareholders should be entitled to exchange their shares for shares in the cor- poration, but there was no formal winding up of the company. This agree- ment was acquiesced in by all the shareholders. About a year afterward the former directors, in the name of the company, entered into an agreement with the corporation that the former agreement should cease, and that the company should resume the principal part of its business. Notice of this resumption of business was given to the shareholders. Shortly afterward the corporation was wound up. Subsequently, pending an arrangement purporting to relieve from liability certain dissatisfied shareholders, A. , the registered holder of 200 shares in the . company, transferred them to P. for a nominal consideration after giving notice to the directors, and at a meeting of the directors at which A. (who was alleged to have been elected a director though not as the deed required) was present, the said transfer was sanctioned. The company was afterward wound up. Held, that, under the circumstances, the transfer was invalid, and that A. must be made a contributory. Allin's Case (Eq. C), VI, 805 . 125. A director of a company induced three of his children, who were minors, to apply for shares. Shares were allotted to each, and he gave them money to pay the sums payable on allotment. All the shares in the company were allotted. The company never paid any dividend, and an order for wind- ing it up was made before any of the children had attained twenty-one. The infants were placed on the list of contributories, and an order was made against each for payment of an arrear of calls, but, their infancy having been discovered, no attempt was made to enforce it. Held, that the father was liable to pay the amount of these calls, as a loss occasioned to the company by his breach of duty as director in having shares allotted to infants. Matter of Orenver Wheal, etc., Co, (Chan. App.), IV, 748. 126 W. A. R. purchased shares in a company, and paid for them, but PUBLIC COMPANY. 43i took a receipt and signed the transfer deed as transferee in tlie name of F. W. R., his son, and the shares were registered in the name of F. W. B., who was then and still is a minor. Upon the company being wound up, and the name of F. W. R. being placed on the list of contributories, hM, that the register of members and list of contributories must be rectified by substituting the name of W. A. R. for that of F. W. R. on both. Richardson's' Case ; In re Mer. cantile Credit Asso. (Eq. C), XIII, 538. 127. Transferee. A joint-stock company was registered under the 7 & 8 Vict. , c. 110. Certain clauses in its deed of settlement required that a holder of shares, desirous of transferring them, must give notice thereof to the oflBcer of the company ; that the directors at a board meeting must certify their approval of the proposed transferee ; that the transferor must execute a deed of transfer, and that every transferee, approved of by the directors, must, within one calendar month, execute, at the office of the company, or at such other place as the board should reasonably require, a deed of covenant to abide by the rules and regulations of the company, " whereupon such person shall become a shareholder of the company." B. held shares in the company, and was a director ; he desired to transfer his shares ; he gave no notice ; no certificate of approval was given before the transfer (it was alleged that such certificate was given after the transfer) ; a deed of transfer was executed, but no deed of covenant as required by the Wticles of the association was ever executed. Seld {dissentiente Lord Chelmsford and Lord Colonsay), that the transfer thus made, though irregularly, was not invalidly made, and the per- sons then known as directors having at a meeting of shareholders recognized the transferees as shareholders, and having then and there declared them to be elected as directors, and the shareholders at such meeting having accepted them as directors, the validity of the transfer to them and their title to office could not afterward be impeached. Murray v. Bush (H. of L.), V, 1. 128. Per Lord Caikns : The clauses in the deed are affirmative clauses and the objection as to the non-execution by the transferee of the deed of cov- enant is cured by the 30th section of the 7 & 8 Vict., c. 110. The moment the transferee assumed to act as a director, and allowed himself to be returned as a shareholder, he lost all right to question his liability. lb. 129. Per Lord Chelmspokd : A transferee of shares may be estopped from disputing his liability as a shareholder, and yet his ownership of the shares may not qualify him for holding office in the company. The 30th section of 7 & 8 Vict., c. 110, does not apply to this case. lb. 130. Held, also {dissentiente Lord Chelmspokd and Lord Colonsay), that the transfer made under these circumstances was sufficient to relieve the trans- feror from liability to become a contributory. lb. 131. The directors had no power to dispense with the execution, by the transferee, of the deed of covenant — the only discretion they possessed as to such deed related to the ^lace of its execution. By one clause of the deed of settlement it was provided that if losses should absorb not only the reserve fund, but also 80 per cent of the capital subscribed for, " the company shall be ipso facto dissolved, and the directors shall witliin twenty days (and they are hereby required so to do) call a special general meeting of the shareholders and lay a statement of the affairs of the company before such meeting." A 433 PUBLIC COMPANY. report of an accountant specially employed by the directors showed that such losses had occurred. No special meeting was called, nor at the next general meeting (which occurred shortly after the date of the report) was the report laid before the shareholders, but the business of the company was continued. At the general meeting of that year the report was not laid before the share- holders, but they were info'rmed that the increased claims upon the company had so reduced the margin of profit that the directors could not recommend the payment of a dividend. At the next general meeting the shareholders wer& told that three new directors had been elected, but they were not told that three of the bid directors had retired, and that their transferred shares con- stituted the qualification upon which the new directors had been elected. HM {dissentiente Lord Chelmsford and Lord Colonsat), that these circumstances, though entirely irregular, did not invalidate the proceedings of the directors. lb. 132. Per Lord Cairns : The allegations of facts in this case were not those which should have formed the ground for a proceeding to settle con- tributories ; if true, they constituted a case for relief Of a wholly different de- scription. The case showed the great advantage of the use of some form of pleading. lb. 133. A shareholder in a company transferred shares to an infant, who transferred them to another infant, who transferred them to an adult, and all the transfers were registered. The company was ordered to be wound up more than a year after the first transfer, but less than a year after the last transfer. Held, that after the company had once obtained an adult share- holder, the intermediate transfers could not be avoided ; that the shareholder ceased to be such at the date of the first transfer, and that he could not be put on the list of past members. Qooch'a case (Chan. App.), IV, 890 ; reversing S. C, III, 813. 134. Plaintiff, a registered owner of fifteen shares in a limited com- pany, sold them through his broker on the London Stock Exchange, and 130 shares in the same company, which included the above fifteen, were bought by a broker on the Exchange, as agent for a firm of brokers in Scotland. The purchase-money was paid, and the name of W. K., of Aberdeen, described as an " Esq.," was furnished as that of the purchaser. A transfer deed of fifteen shares from the plaintiff' to W. K. was executed by both parties, and regis- tered, W. K.'s name remaining on the register till the winding up, when it was found that he was a clerk in the employ of the Scotch firm of brokers, and an infant. The name of the plaintiff' having been restored to the register, and settled on the list of contributories, as the owner of fifteen shares, and calls having been made, he filed a bill against the Scotch brokers, who, by their answer, disclosed the names of four persons, their principals, D., B., J. & S., as the purchasers of thirty, forty, thirty and thirty shares respectively in the company, which, however (except as to E.'s forty, which did not include the plaintiff's fifteen), had not been appropriated. Upon bill by amendment against the brokers and D., J., and S., praying for a declaration that the fifteen shares were held by the plaintiff as a trustee for D., J., and S., and for release and in- demnity, held, that the plaintiff was a trustee of the fifteen shares for the defendants, D., J., and S., and release and indemnity of the plaintiff" by the defendants ordered as prayed. Brown v. Black (Eq. C), V, 877. EAILWAY COMPANY. 433 PUBLIC OFFICER — See Ofotcbk. PUBLIC PLACE — ;&6 CEiMiNAii Law. PURCHASER — See Vendor and Pukchasek. QUIA TIMET— See Fba-dd; Injunction. QUO WARRANTO — See Elections. RAILWAY COMPANY. 1. Contracts of. The directors of a railway company, T., in order to obtain the use of the B. docks, then existing and situated near the end of their line, wherein to ship and unship goods carried along their railway, entered, in 1849, into a contract with the owners of these docks to pay certain dock and lockage dues, and accepted (under the authority of a private act of Parliament) a lease for 250 years, by which they bound themselves to procure, as far as they could, all goods sent along their railway to or from ships, to be shipped or unshipped at these docks, and to pay certain dues and royalties in respect of all goods, etc., shipped or unshipped there, which had been or should be conveyed " along* the railway, or any part or branch thereof." Held, that this only ap- plied to goods carried over the railway, or those parts or branches of it which were in connection with some place of shipment or unshipment. Directors, etc., TaffvaZe By. Co. v. Macnabb (H. of L.), VI, 1. 2. —, — The T. directors, by the same lease, also covenanted that when and so o ften as goods, etc. , conveyed along the T. railway, or any part or branch thereof, should be shipped or unshipped in any dock other than the B. dock, the T. directors and their successors should pay to the B. trustees the same dues, etc., in respect thereof, as would have been payable on. such goods if shipped or unshipped in the B. dock. Seld, that " shipped or unshipped in any other than the B. dock " did not apply to goods carried along a part of the T. railway and then along any other railway, and shipped at any dock what- ever and wherever, but only to docks in connection with the T. railway itself. Semble, tliat any other construction of the covenant would make it both unrea- sonable and ultra vires. lb. 3. After this lease of 1849 had been made, certain private acts of Par- liament were passed, which incorporated another body of persons as the P. company, and authorized the construction, by the P. company, of a line of rail- way and of docks, and also authorized the directors of the P. company to grant, and the directors of the T. company to accept, a lease of the new under- taking. The lease was duly executed under the powers of these acts, and the T. directors thenceforth used the new line and the new docks, and discon- tinued the use of the B. docks. In an action by the B. trustees upon the covenants in the lease of 1849, Tietd, that those covenants were not thereby violated ; that, the P. railway and docks having been made under acts of Par- liament passed subsequent to the lease, the fact of the T. directors becoming the lessees or assignees of the P. undertaking did not constitute the P. line of railway a " part or a branch " of the T. railway ; and that, consequently, the T. directors were not, by the use of the P. railway and docks, liable to the B, trustees as for breach of the covenants fn the lease of 1849. lb. 55 434 EAILWAY COMPANY. 4. When ultra vires. If the directors of a railway company become, for the purposes of the company, lessees of land, with a privilege to use docks, and agree to pay rent and royalties to the owner of the docks, and enter into other conditions which, by a state of circamstances subsequently created, appear to be unreasonable and impolitic, such stipulations and conditions cannot, on that account, be treated as ultra vires of the directors. lb. 5. Nor can a condition to pay shipping dues not only for goods actually brought along the railway and shipped at those docks, but for goods brought along the railway to be shipped at other docks, be treated as a covenant in re- straint of trade. lb. 6. Power as to charges for services. A railway act gave the directors power to charge a sum for the conveyance of coal along the line, " including the tolls for the use of the railways and wagons, or trucks and locomotive power, and every expense incidental to such conveyance," which sum was to be a maximum sum, except in certain cases, the exception being thus ex- pressed : " Except a reasonable sum for loading, covering and unloading of goods, and delivery and collection, and any other services incidental to the business of a carrier, where such services or any of them are or is to be performed by the company." The services in respect of which the excepted charges were claimed to be made, were those of taking the wagons of a colliery owner from his own sidings and attaching them to the trains, or returning them from the line of the railway to the sidings of the colliery owner; audit was found in the special case, that whatever particular difficulty arose in this work was occasioned by the position of the points effecting the junction of the line with the sidings. Ifeld, that these were not services which came within the meaning of the exception. Lancashire, etc., My. Co. V. CHdlow (H. of L.), XIII, 40. 7 At solne of the stations the colliery owner had been allowed to leave his coals on the ground adjoining the lines. Held, that this might have been made the subject of an agreement for payment for any advantage thus obtained by him, but did not come within the description of a ''service" contained in the exception, lb. 8. Acquiring land. The words " purposes aforesaid," in sect. 32 of the Railways Clauses Consolidation Act, 1845, refer only to the purposes men- tioned in that section. The remedy against the company in such cases may be by suit for injunction as well as by action for damages. An act is not " neces- sary " within the 16th section of the said act, merely iecause it enables the company to execute their works more economically. Fenwick v. East London My. Co. (Eq. C), XV, 480. 9. Superfluous land. The meaning of the phrase " superfluous land " in the 127th section of the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict., c. 18), is, land acquired by the promoters of the undertaking, but not "required for the purposes of the undertaking. Directors of Great Western By. Co. v. May (H. of L.), X, 38. 10 In the 127th section the word " required " does not mean demanded, but necessary, and when it ceases to be necessary, this land becomes super- fluous land. lb. 11. It may be so in any one of four ways ; if more land had been taken EAILWAY COMPANY. 435 than, on the execution of the works, appeared to be needed — if the company had been forced to take it by reason of not being able to obtain a part of .any property without taking the rest — if taken for works then deemed to be required for permanent use, but which afterward were found not to be required, and were therefore abandoned — or, if taken only for a temporary purpose, when that temporary purpose had been answered. lb. 12. The conversion of it to other purposes than those of the under- taking is evidence of its being superfluous. lb. 13. Though land acquired for the purposes of the undertaking has been actually used by the promoters, if that use is only one of a temporary nature, the land having satisfied that use, becomes superfluous land. lb. 14. Where land cannot be shown to be required for the purposes of the undertaking, it vests absolutely in the adjoining owner under the 127th section of the Lands Clauses Consolidation Act, 1845; having so become "vested" in the adjoining owners, it is not aflffected by the circumstance that a private act, passed afterward, though before it is claimed by an adjoining owner, extends the time within which the directors may dispose of the superfluous lands belonging to the company. lb. 15. Lands were acquired by railway directors, as for the purposes of their undertaking, notices under the Compulsory Powers Clauses being given as to all, bat the valuation as to some was fixed by the statutory arbitrator, as to the rest settled by agreement between the directors and the land-owners. At the end of ten years the purposes to which the directors had applied cer- tain portions of the lands thus acquired had been answered, and the directors allowed persons to occupy these particular portions as garden grounds, still, however, retaining a right of re-entry thereon on very short notices. An ad- joining owner claimed them under the 137th section of the Lands Clauses Consolidation Act, 1845. Seld, that this claim was valid, that they had become " superfluous land " and had " vested " in him, within the meaning of the section, and it had not been necessary for him to do any act to bring about that legal result. lb. 16. Ijiability for defective fences. The plaiutifi" hired of the occupier of some land adjoining the defendants' line of railway a stable for his horse. The horse was allowed to graze during the day on the land. One night it escaped from the stable on to the land, and thence, through a defective fence, on to the defendants' line, where it was run over and killed by a train. In an action for the value of the horse, lield, that the plaintiff was entitled to^ the benefit of 8 & 9 Vict., c. 30, s. 68, whereby railway companies are bound to maintain suflScient fences for the protection of the cattle of the " owners or occupiers" of land adjoining their line, and that the defendants were therefore liable. Damson v. Midland By. Co. (Exch.), IV, 418. 17. for unsafe crossing. Where a railway company construct their line across a highway on a level, under the sanction of an act of Parliament, it is their duty to keep the crossing in a proper state for the passage of carriages across the rails ; and if a carriage is damaged in consequence of the rails being too high above the surface of the roadway the company are liable. Oliver v. North-Eastern By. Co. (Q. B.), IX, 350. 436 RECEIVBE. 18. Liability of connecting companies. Where two companies used the same track, and only one was guilty of negligence, held, that the latter only was liable therefor. Wright v. Midland By. Oo. (Bxch.), V, 333. 19. Where baggage or proijerty is lost or injured by one of several con necting railways, the presumption is that it was so lost or injured by the com- pany to which it was delivered, and in whose possession it was last seen, and that company will te held responsible therefor unless it shows that it was not in fault. Kent v. Midland By. Co. (Q. B.), XI, 138. 8ee Cakkiebs ; Compensation ; Eminent Domain ; Pektxjebs ; Mabtek and Servant; Negligence. JIAPE — See Cbiminal Law. RATIFICATION — 8ee Fbaud ; Infant ; Municxpal Coepobation ; Power. REAL ESTATE — See Conversion into Pbbbonaltt ; Executors, etc.; Will. RECEIVER. 1. Appointment pendente lite. The court may appoint a receiver of per- sonal estate pending the grant of probate, which has been delayed on account of a caveat having been entered, where a suit in the Probate Court has not been actually constituted. Parkin v. Seddons (Eq. C), VI, 635. 2. The court will, also, under the same circumstances, appoint a re- ceiver pendente lite of the rents of real estate, if neither the devisee nor the heir at law is in actual possession. lb. 3. Pending disputes of directors. The existence of disputes between dif- ferent members of the governing body of a company, which prevent its affairs being carried on properly, is a ground for the intervention of the court by in- junction and receiver to protect the property of the company, but the inter- ference of the court will be continued only until a governing body is duly ap- pointed. Feathersione v. Cooke and Trade Auxiliary Co. v. Vickers (Eq. C), VI, 764. 4. To work coal mine. In a suit by the purchaser of a coal mine to rescind the contract on the ground of fraudulent misrepresentations, it being essential that the mine should be kept in a going state, the court, upon the application of the purchaser, who was in possession of the colliery, appointed a receiver and manager until the hearing. QiUbs v. David (Eq. C), XV, 379. 5. Title of, when accrues. Where, on a motion for a receiver, an order is made that a named person, on giving security, be appointed receiver, the ap- pointment takes effect from the date of the order ; and, therefore, where, after such an order and before the receiver so appointed perfected his securities, certain execution creditors who had not received notice of the appointment put the sheriff in possession of the goods over which the receiver was ap- pointed, held, that, immediately on notice being given of the appointment, the sheriff ought to have been withdrawn. Edwards v. Edwards (Chan. Div.), XV, 846. EECEIVEE. REDEMPTION. 437 6. Where a receiver of a bankrupt's property has been appointed by the Court of Bankruptcy, it is a contempt of court for the holder of a valid bill of sale of goods of the bankrupt to oust the receiver from possession which he has taken of such goods. Mc pti/rie Cochrane; In re Mead (Eq. C), XIII, 803. 7. The only person who may interfere with the possession of a receiver is a landlord distraining for a year's rent. Any other person who claims a better title than the receiver ought to apply to the Court of Bankruptcy for leave to enforce his rights. lb. 8. Discharge of. Testator, who died in 1844, devised to trustees a moiety of his real estates upon trusts for his son for life, with remainder to his grand- son for life and his sons in tail, and to pay all his debts and sums of money as he should owe at the time of his decease, whether by way of mortgage, bond or otherwise, including a sum of £8,000 charged upon the estates'; and he directed that the rents and profits of the estates should be received by the trustees and be applied in liquidation of the debts until the whole, including the £8,000, should be paid ; that no person to whom any estate for life or in tail was limited should be entitled to the rents and profits until the estates were totally disincumbered and clear of debts ; and that the trustees should invest the moneys which might come to their hands upon good security, at interest, until the same should be applied in payments under the trusts. A receiver had been appointed. The whole of the debts had been paid, except- ing the £8,000, by sales of parts of the estates under orders of the court, and there was an accumulation fund in court sufficient to pay the £8,000. On ad- journed summons, held, that the receiver must be discharged, and the tenant for life be let into possession of the estates. Tewart v. Laioson (Eq. C), X, 805. See Bankbuptcy ; Jueisdiction. RECEIVING STOLEN GOODS— See Cbiminai Law. REDEMPTION. 1. From mortgage. An estate subject to a mortgage was vested in C. upon trust, to set apart out of the rents a fixed yearly sum, out of which he was to pay the interest on the mortgage and accumulate the residue as a sinking fund to pay off the principal. In June, 1864, the interest being in arrear, the mort- gagees advertised the property for sale. C. thereupon applied to P. to pay off the mortgagees and take a transfer, which he agreed to do. The mortgagees would not stop the sale unless the whole arrear of interest and their costs were paid them, which P. at once did ; and he subsequently paid them the in- terest down to September, 1864. The transfer was not made till August, 1866, and it purported to transfer the principal sum with interest only from Sep- tember, 1864. A contemporaneous deed was executed, by which C. purported to charge the estate with the payment of a principal sum made up of the pay- ments by P. in 1864, and the costs and interest thereon. It was admitted that this deed was invalid, as being beyond the powers of the trustee. A bill for redemption having been filed by the beneficial owners, held, that P. was en- titled to charge in his accounts, and to have paid to him upon redemption from the mortgage, the sums paid by him in 1864 for interest, notwithstanding the 438 REFOEMATION OF INSTRUMENTS. form of the deeds of 1865, and the fact that C. was guilty of a breach of trust in allowing the interest to be in arrear. Oottrell v. Mnney (Chan. App.), X, 576. 2. Dismissal of bill for. The rule that the dismissal of the bill in a redemp- tion suit operates as a foreclosure of the mortgage, does not apply to an equi- table mortgage by deposit of title-deeds. A mortgagor filed a bill for the redemption of a legal mortgage. The mortgagee, by his answer, alleged that he had advanced another sum of money on the deposit of the ' title-deeds of another estate, and he claimed to hold both estates till both debts were paid. The plaintiff amended his bill by stating the allegations made by the defend- ant, but before the bill came to a hearing he obtained an order.^a; parte, dis- missing the bill with costs. The mortgagee afterward contracted to sell both the estates, and then filed a bill for the administration of the estate of the mortgagor, who was dead, praying for permission to carry out the sale, and for payment of his whole debt out of the mortgagor's estate. Seld, that the equitable mortgage was not foreclosed, and that the plaintiff was entitled to the relief prayed for. Marshall v. Shrewsbury (Chan. App.), XII, 719. See Pledge ; Tbustb, etc. REFORMATION OP INSTRUMENTS. 1. When decreed. A deed was executed purporting (by mistake) to convey a moiety only of real estate, the intention of the parties having been to pass the whole. Infants were interested. Upon bill for rectification, held, that a conveyance of the other moiety by another deed was not necessary, and order made declaring that the deed was, in the particulars after specified, executed by mistake, that it was intended to pass the entirety, and that the deed ought to be rectified ; ordering rectification by words and figures accord- ingly, and directing a copy of the order to be indorsed on the deed. WJdte v. TrAife(Eq. C.),V,8.34. 2. A testator, who died in 1760, made a general devise of freeholds and copyholds to his daughter in tail. His grandson was, in 1783, admitted to the copyholds as tenant in tail, and was proved to have been in 1833 in possession of the copyholds and of certain freeholds then held therewith. He made a will purporting to devise these freeholds and copyholds, and died in 1840. His brother and heir, in 1841, executed a deed purporting to be for the purpose of barring any estates tail in the freeholds, whereby he conveyed the freeholds to the devisee under the will, and covenanted to surrender the copyholds. This deed was not enrolled, but the devisee was admitted to the copyholds. The devisee died intestate, and his brother succeeded him as his heir, and made a will purporting to devise the freeholds and the copyholds in fifths, the plaintiff taking one-fifth and the defendant another fifth. The defendant afterward agreed to buy the plaintiff's one-fifth, and a conveyance was made by her conveying to the defendant her one-fifth and all her estates and shares in the land, neither of them being aware of the earlier title. Four years after- ward the deed purporting to bar the estate tail was found, and thereupon the defendant requested the plaintiff, who was heir in tail of the original testator, to confirm the sale, and sent to her the draft of a deed reciting that the origi- nal testator was seized in fee of the freeholds and devised them, and that she was tenant in tail. She then filed a bill to have her conveyance set aside and EEFOEMATION OF INSTEUMBJSTTS. 439 to be declared tenant in tail of the freeholds. Meld, that the conveyance by the plaintiff of the fee in the whole when she had intended to convey one- flfth only might embarrass her in proceeding Sit law, and that this court must determine the question ; but lield, that the plaintiff was bound to show that the original testator was seized in lee of the freeholds claimed by her, and that, as she had not done so, her bill must be dismissed. Bvltley v. Bulley (Chan. App.), X, 706. 3. Held, that, under the circumstances, the sending by the defendant of the draft deed stating that the original testator was seized in fee was not an admission by the defendant of the fact which would bind him. lb. 4. The defendant had conveyed his estate to mortgagees. Held, that they were purchasers for valuable consideration without notice, and their rights could not be interfered with. lb. 5. Of marriage settlement. By a marriage settlement executed in pursu- ance of articles made under the order of the court on the marriage of a lady, an infant and a ward of court, personalty of the wife was limited on death of the husband and in default of children, both which events happened, to the wife, as she should by will appoint, and in default to her next of kin. Upon her uncontradicted evidence that this was not in accordance with her intention, held, that she was entitled to have the settlement rectified by limiting the property, in the events which had happened, to herself, her executors and administrators, absolutely; and declaration to that effect ordered to be in- dorsed on the settlement. Bnith v. lliffe (Eq. C), XV, 536. 6. A lady, possessed of about £12,000 consols, being engaged to be married, a draft settlement in the usual form was submitted to the intended husband, who objected to some of its provisions, and insisted that if there should be " no children," and he should survive his wife, the fund should belong to him. Articles embodying this provision were hastily signed before the marriage ; and after the marriage, the fund having been transferred to the trustees, » draft settlement, in execution of the articles, was prepared, but objected to by the husb9,nd, and, as ultimately executed, contained limitations to the husband and wife and the survivor for their lives, and as to the capital to the children of the marriage absolutely, not to such as should attain twenty- one or marry, and without any limitation over, in the event of the death of a son or of an unmarried daughter under twenty-one. There was also a pro- vision that " if there should be no child " of the husband and wife, and the husband should survive the wife, the fund should belong to him ; but the deed contained no alternative limitation in the events of there being no child, and- of the wife surviving the husband. The husband brought no property into settlement. In the event, one child was born, but died an infant in the life- time of both parents. The husband died ; and his representative claiming the fund, subject to the widow's life interest — upon bill by the widow for rectifi- cation of the settlement, and for a declaration that she was entitled to the fund, held, that the transfer of the fund to the trustees was not a reduction into possession by the husband ; that the settlement was not in accordance with the articles, and that it ought to be rectified ; and that, in the events which had happened, the plaintiff was entitled to the fund. Cogan v. Buffield (Eq. C), XV, 607. 440 EELIGIOtJS MEETINGS. EENTS. 7. Held, also, that the plaintiff was entitled to arrears of income due at the death of the husband. lb. 8. Laohea, efiect of. The conveyance made in 1866, upon a sale of land by S. t6 B., contained a reservation to S. of minerals. Four years subsequently B. filed a bill against S., alleging that the reservation was inserted in the con- veyance under a mistake common to both parties, and recently discovered by him, and praying for the rectification of the conveyance by the omission of it. S. put in an answer denying the mistake, and claiming the benefit of the reservation; and afterward died before he could be cross-examined. Held, that although, in the opinion of the court, a mistake common to both parties had been made, of which S. sought to take an improper advantage, yet a sim- ple decree for rectification could not be made after the lapse of time and against the oath of one of the parties ; but that the defendants, the represent- atives of S., were entitled to the option of having the conveyance rectified, or the whole transaction set aside ; and in the event of the plaintiff not choosing to accept the latter alternative, the bill must be dismissed without costs. Bloomer v. SpittU (Bq. C), II, 372. RELEASE — See Compkomisk; Bankruptcy; Pabtkbrship; Principai AND Surety. RELIGIOUS MEETINGS. Disturbance. It is the duty of the chairman of a meeting, where a large body of people are gathered together, to do his best to preserve order, and it is equally the duty of those who are acting as stewards or managers to assist him in so doing ; but there is no such relationship of master and servant between the chairman and such managers as will make him liable for their tortious acts in attempting to remove disturbers, if done in excess of any authority derived from him. Lucas v. Mason (Com. PL), XIII, 379. RELIGIOUS SOCIETIES — 5ee Church Decorations. REMAINDER — Sse Estoppel; Life Estate; Limit AtroNS, Statute op; Will. RENEWAL NOTE. Secured. A renewal note is secured by a mortgage given to secure the orig- inal indebtedness. Fenton v. Blackwood (Priv. C), VIII, 132. RENTS. 1. Action for rent. Since the abolition of real actions by 3 & 4 Wm. 4, o. 27, B. 36, an action of debt will lie for the recovery of a rent charge in fee. Tliomas v. Sylvester (Q. B.), VI, 103. 2. Declaration, that the plaintiff, being seized in fee of certain messu- ages, granted them by indenture to C, subject to the payment to the plaintiff, his heirs and assigns, of a rent charge, and 0. covenanted to pay the rent charge ; that afterward all the estate of C. vested in the defendant, who did not pay the rent charge. Meld, on demurrer, that the declaration was good. RENTS. EBVBNUB. 441 for that the reason why an action of debt would not formerly lie for a rent charge in fee was, that there was a higher remedy by real action ; but that higher remedy having been abolished by 3 & 4 Wih. 4, c. 27, s. 36, the present remedy by action of debt was maintainable. lb. 3. Apportionment. A testator seized in fee devised real estate by a will dated before the Apportionment Act, 1870, and confirmed by a codicil dated after the act. Held, that the rents were apportionable between the executor and the devisee. Semble, that the result would have been the same without the codicil. Gapron v. Owpron (Eq. C), VII, 833. See Bankruptcy ; Landlobd and Tenant. RES ADJUDICATA— See Former Adjudication. RESCISSION — See Contract; Sale. RESERVATION — See Deed ; Mines. RES GEST^ — See Criminal Law; Evidbnce. RESIDENCE. Voter. The claimant, a freeman of a borough, was an oflBcer in the army, serving with his regiment. When he obtained leave of absence, which he usually did for three months in the year, he used to reside at the house of his mother, within seven miles of the borough,, occupying apartments there which were always reserved for his use. He was unmarried, and had no other homer than his mother's house. Held, that, in the case of an officer subject to the will and pleasure of the Queen, and who was, therefore, not sui juris, there could not be such an intention of returning as to constitute a constructive resi- dence, and, consequently, that the claimant was not qualified. Ford v. HaH (Com. PI.), IX, 400. See DOMioiLB. RESTITUTION - See Criminal Law. RESTRAINT OP MARRIAGE. Second marriage of man. A condition subsequent in a bequest to husband and wife, in restraint of the second marriage of the husband in case he sur- vives his wife, is not void. Allen v. Jaekaon (Chan. Div.), XV, 815 ; reversing S. C, XIII, 564. REVENUE. Coal dues. By the Tyne Coal Dues Act, 1873 (35 Vict., c. 13), the old coal dues are abolished, and the commissioners are empowered to levy dues, inter alia, one penny per ton on " coals exported from the port." Held, that, in the absence of any thing in the act to the contrary, " exported from the port " must be taken to be used in its ordinary meaning of " carried out of the port," and, therefore, included coals taken out of the port in a steamer, to be consumed on board during a distant voyage. Mutter v. Baldwin (Q. B.), IX, 389. See Customs. REVERSION — See Legacy; Will. 56 4A2 BIPAKIAN OWNEE. SALE. REVIVOR — S«6 Abatement and Revivor. REVOCATION — See Will. RIGHT, PETITION OF — See Petition of Right. RIPARIAN OWNER. 1. Rights on tidal river. The owner of land on the bank of a tidal river has only a right of access to the river as one of Her Majesty's subjects, and has not the game easements or private rights as those of the owner of land on the bank of an inland stream. Lyon v. Fishmonger^ Co. (Chan. App.), XIV, 837. 2 Under the Thames Conservancy Act, the conservators had power to grant to the owner of any wharf a license to make an embankment into the body of the river, and by sect. 179 the rights of owners of land adjoining the river were saved. Held, that the conservators had power to grant a license to embank, although the embankment would cut off all access to one side of the adjoining wharf, the right interfered with not being a ^private right, and not being saved by sect. 179. lb. 3. Diversion of water. An upper riparian owner has a right to use the water of the stream for all ordinary purposes, such as washing and drinking, and other uses connected with his tenement, and under certain circumstances and to a reasonable extent he may divert it for a time for purposes of irriga- .tiou or manufactures, but subject to such use the lower riparian owner i.s entitled to its accustomed flow for the ordinary purposes for which he can use it. Swindon Waterworks Co. v. Wilts and Berks Canal Co. (H. of L.), XIV, 86; modifying S. C, IX, 546. RIVERS — See Navigable River ; Wateh-couksb. ROBBERY — See Criminal Law. SALE. 1. Construction as to quantity. A. M., on behalf of the firm of M. & Co., merchants, in Q., of which he was a member, entered into the following con- tract with R. M. ; "R. M. sells, and Messrs. M. & Co. buy, all of the spars manufactured by R. M., say about 600 red pine spars, averaging by culler's measurement in Q., 16 inches, at the sum of, etc., delivered free of charge in Q. The above spars will be out of the lot manufactured by J. B., the lengths of which, according to his specifications, I am satisfied with." The lot manu- factured by J. B. was found to consist of 603 spars, of which only 496 aver- aged 16 inches. Held, upon the construction of the contract, that M. & Co. were bound to accept the 496 spars at the rate agreed on, the words, " say about 600 red pine spars," being words of expectation and estimate only, and not amounting to a warranty. MeCcmnell v. Murphy (Priv. C), VIII, 164. 2. As to risk of loss. The plaintiffs, sugar refiners, were in the habit of selling to brokers the whole of each filling of sugar, consisting of from 300 to 300 loaves or " titlers " each, the terms always being " prompt at one month ; goods at seller's risk for two inontha," the " prompt " day being the Saturday SALE. • 443 next after the expiration of one month from the sale. The titlers in each fill- ing were stored on the plaintiffs' premises, and were from time to time fetched away by the purchasers or their sub-vendees, being weighed on their removal, each titler weighing from thirty-eight to forty-two pounds. If the whole of the lots contained in one sale-note had not (which was frequently the case) been taken away on the " prompt " day, payment was made by the purchaser (by bill or cash) at an approximate sum calculated on the probable weight, the actual price being afterward adjusted on the whole filling being cleared. The defendant, who was an old customer of the plaintiffs, had bought four fillings consisting oi specific titlers, each marked, on the above terms, and had paid the approximate price of the four lots, and had fetched some of each lot away. A fire occurred on the plaintiffs' premises after the expiration of the two months from the date of sale to the defendant, destroying the whole contents of the warehouses. At the time of the fire the plaintiffs had floating policies of insurance which covered goods on the premises " sold and paid for, but not removed ; " but they had no agreement or understanding with their customers as to any insurance; and the amount insured, which the plaintiff received from the underwriters, was not sufiicient to cover the loss of their own goods, exclusive of the titlers undelivered which they had sold to the defendant. Held, (by COCK- BUKN, C. J., on the ground that the property in the titlers undelivered had passed to the defendant; by Blackbuhn, Lush and Quain, JJ., whether it had passed or not), that, by the terms of the contract of sale, the risk after the lapse of the two months was in the buyer, and the loss was, therefore, his. Secondly, that, as there was no coutmct between the plaintiffs and their customers, as to insurance, the plaintiffs were under no obligation in the matter, and were entitled to appropriate to their own losses the whole sum received from the insurance oflSces. Martineau v. Kiteking (Q. B.), II, 539. 3 Semble, by Blackburn and Lush, J J., that the property in the titlers undelivered had passed to the defendant. lb. 4. When title passes. Where the terms of an auction sale were that " each lot shall be paid for immediately after the sale and previously to its removal," and that " each and all lots shall be taken to be delivered at the fall of the hammer, after which time they shall remain and be at the exclusive risk of the purchaser," the title passes immediately upon the goods being struck off to the purchaser, notwithstanding they may still be liable to be distrained for rent due to the landlord of the previous owner, and the purchaser takes sub- ject to that risk. Sweeting v. Turner (Q. B.), II, 72. 6. The plaintiffs agreed with the defendant to ship on board a vessel a cargo of fresh-water ice, and to dispatch the vessel with all speed to any ordered port in the United Kingdom, " the vendors forwarding bills of lading to the purchaser, and upon receipt thereof the purchaser takes upon himself all risks and dangers of the seas ; " and the defendant agreed to buy and receive the ice on its arrival, and pay for it in cash on delivery, at the rate of 30«. » ton of 20 cwt., weighed on board during delivery. The vessel was lost during the voyage by risks and dangers of the seas, within the meaning of the agree- ment, and after the receipt by the defendant of the bills of lading. The plaintiffs having brought an action against the defendant to recover the value of the cargo at the time of the loss, held, that the title to the cargo passed to the defendant on delivery of the bills of lading, and it was thenceforth at his 444 SALE. risk, and that the plaintiffs were entitled to recover. Oaatle v. Playford (Exch.), I, 204. 6. The defendants bought from one M. all the ore of a certain mine in. Spain, to be shipped by M. at Cartagena on ships to be chartered by the de- fendants or by him. The ore was to be paid for by bills against biljs of lading, or by longer bills on the execution of. a charter-party, and on a certificate that there was enough ore in stock to load, the vessel chartered. On being so paid for, the ore was to be the property of the defendants. Several vessels had been loaded, and others chartered, and several payments made up to March, 1872, when the T., one of the chartered ships, arrived at Cartagena. The pay- ments which had been made at that time exceeded in amount the price of all the ore shipped and to be shipped in all the vessels chartered and not loaded, so that had M. shipped ore on the T. he would have been entitled to no pay- ment in respect of it. He had ore which he could and ought to have shipped, taking bills of lading to the order of the defendants. Instead of doing this before any ore was put on board the T., he telegraphed to the defendants that he would not load the T. on their account, arid though they telegraphed to him, threatening him if he did not, he loaded the T., taking bills of lading, making the shipment to be by one S., and the cargo deliverable to S.'s order. No certificate in relation to this ore was ever given to the defendants. Bj the terms of the charter-party the captain was to sign bills of lading as presented. S. was a fictitious person, and M., after indorsing the name of S. on the bills of lading and then his own, indorsed them for value to the plaintiffs. Held.ihaX the plaintiffs, as against the defendants, were entitled to the cargo ; by Bbam- WBLL and Cleasby, BB., on the ground that though M. acted in breach of his agreement, yet the manner in which the ore was put on board the T., and the form in which the bills of lading were taken, showed that the property in the ore did not pass to the defendants before or after shipment ; by Kelly, C. B., solely on the ground that the charter-party justified the master in signing biUs of lading, which gave the plaintiffs a title. Qabarron v. Kreeft and Kreeft v. Thompson (Exch.), XIV, 563. 7. In an action on a charter-party by Messrs. K., the former defend- ants, as charterers, against the ship-owner for not delivering a cargo on board the M. to the plaintiffs according to the charter-party, it appeared that the charter-party of the M., which was one of the vessels chartered for carrying ore under the contract above mentioned, did not authorize the master to sign bills of lading as presented, but the ship-owner, by the charter-party, agreed to deliver the cargo to the plaintiffs. This cargo had also been fully drawn against, but M. obtained from the master bills of lading, as in the former case, and indorsed them for value to G. , to whom the master delivered the cargo. Meld, by the majority of the court, that the defendant was not liable, on the ground that the master performed his contract by delivering the cargo accord- ing to bills of lading. By Kelly, C. B., dissenting, that the defendant was liable, as the property in the ore drawn against had passed to the plaintiffs, the purchasers, and as the master was not justified under the charter in giving bills of lading which were inconsistent with the rights of the plaintiffs. lb. 8. Where W. bought goods in bond from C, to remain in bond awhile to C.'s order, and paid for them, and afterward wrote C. to forward to him a SALE. 445 part, and incloaed a check sufficient to pay duties, but C. retained the check, not paying the duty nor forwarding the goods, and soon afterward became in- solvent ; held, that such part of the goods did not pass to the trustee of the vendor, but his rights were determined by the demand of possession though no notice had been given to the warehouseman. Matter of Ward (Chan. App.), IV, 822. 9. Vendor's lien. Where an unpaid vendor shipping goods under a con- tract of sale takes a bill of lading making the goods deliverable to his order, and retains such bill of lading in his own or his agent's hands for his own pro- tection, he not merely reserves the vendor's lien, in case of the purchaser's making default in payment of the price, but reserves a right of disposing of the goods so long at least as the purchaser continues in default. Ogg v. Shuter (C. P. Div.), XV, 231 ; reversing S. C, XI, 316. 10. B. & Co. sold some iron rails to the A. company by a written con- tract, stipulating that payment should be made by buyers' acceptances of sellers' drafts against inspector's certificate of approval and wharfinger's cer- tificate of each 500 tons being stacked ready for shipment. As the wharfin- ger's certificates were delivered, the A. company accepted the drafts of B. & Co. , according to the contract, which B. & Co. negotiated ; but the rails remained in B. & Co.'s possession. The plaintiff advanced money to the A. company on the security of some of the wharfinger's certificates which were handed over to him with a written memorandum. Th» A. company became insolvent, and their acceptances were consequently not paid. The plaintiff filed a bill against B. & Co. and the receiver of the estate of the A. company, claiming a lien on the rails in the hands of B. & Co. in priority to their lien as vendors. The bill alleged that according to the custom of the iron trade, the wharfinger's certificates were in fact " warrants." The plaintiff having moved for an injunction to restrain B. & Co. from parting with the rails, or with the money which they might receive in respect of them, the Vice-Chan- cellor ordered B. & Co. to pay the value of the rails into court, to be kept i» medio till the decision of the case. Held, fifst, that the giving of the accept- ances in pursuance of the contract was not an absolute payment, but con- ditional on the acceptances being met ; that upon the insolvency of the acceptors the vendors' lien on the goods revived ; and that the fact of the vendors having negotiated the bills made no difference. Q-unn v. Bolckow (Chan. App.), XIV, 739. 11. Secondly, that the wharfinger's certificates were not documents of title, and their delivery passed no right to the goods ; and that no custom of trade could give them the effect of " warrants " or documents of title as against the vendors. lb. 12. Stoppage in transitu, when right ends. Where goods purchased are shipped by the vendor by railroad as directed by the purchaser, addressed to one whom he states to be his agent at L., and such consignee on arrival of the -goods.at L. arranges with the railway company to hold them for him as ware- housemen, before notice to stop them in transitu is received there, the right to so stop them is terminated ; but the vendor still has the right to avoid the contract on the ground of fraud discovered after the sale ; and in an action by such consignee for the value of the goods after they have been retaken by the 446 SALE. vendor, he may set up the fraud and that the plaintiff was privy thereto as a defense. Clough v. London and Northwestern By. Co. (Exch.), 1, 148. 13. Cotton was shipped at Charleston, in America, for carriage to Liver- pool. The purchaser resided at Luddenden Foot, in Yorkshire. The cotton was consigned to the vendor's agent at Liverpool, to whom the bills of lading were also sent by the vendor, together with a bill of exchange for the price of the cotton, drawn by the vendor on the purchaser. On the arrival of the cot- ton at Liverpool, the bill of exchange was sent by the vendor's agent to the purchaser, and upon its return accepted by him the bill of lading was seat to him. He then indorsed the bill of lading and sent it to the manager of a railway company in Liverpool, who paid the sea freight and obtained pos- session of the cotton, which was then forwarded by the railway to Luddenden Foot Station. The invoice of the cotton which was sent to the purchaser described it as shipped by the vendor to Liverpool, consigned to order, for account and risk of the purchaser, Luddenden Foot. The bill of lading pro- vided for the shipment of the cotton into the port of Liverpool, there to be delivered to order or assigns, he or they paying freight immediately on landing the goods. Held, that the transitus prescribed by the vendor ended at Liver- pool, and that after the cotton had been delivered there to the railway com- pany, as agents for the purchaser, the vendor had no right to stop it in transitu; Mc parte Oibbes ; In re Whitwwtli (Chan. Div.), XV, 667. 14. Rescission for non-conformity to sample. Where goods were sold by sample, and the bulk was foand by the purchaser, on inspection after delivery, not to be equal to Sample, held, that the purchaser might reject the goods by giving notice to the vendor that he would not accept them, and that they were at the vendor's risk, and was not bound to send back, or offer to send back, the goods to the vendor, or to place them in neutral custody. Qrimoldby v. Wells (Com. PI.), XII, 451. 16. Tlie purchaser of goods by sample ought to examine them without delay, and if he finds that they are not conformable to the sample he may reject them and rescind the contract — giving immediate notice that he does so, and that the goods are at the risk and disposal of the vendor. Gouston v. Chapman (Scotch & Div. App.), Ill, 187. 16. Where in such a case certain purchasers had omitted to rescind the contract, and neither returned nor offered to return the goods, they were held liable for the price. Per Lord Chelmsfokd : As I understand the law of Scotland, although the goods have been accepted by the purchaser, yet if he find that they do not correspond with the sample, he has an absolute right to return them. In England, if goods are sold by sample, and they are delivered, and accepted by the purchaser, he cannot return them ; but if he has taken the delivery conditionally, he has a right to keep the goods for a suiScient time to enable him to give them a fair trial, and if they are found not to correspond with the sample, he is then entitled to return them. In England, if a horse is sold with a warranty of soundness, and it turns out to be unsound, the pur- chaser cannot return it, unless there is a stipulation that if the horse does not answer to the warranty the purchaser shall be at liberty to return it. But in Scotland, as I understand the law of that country, there would be an absolute SALE. 447 right to return the horse upon the discovery of its unsoundness, without any specific stipulation to that effect. lb. 17. for breach of warranty. The plaintiff, on Monday, bought a horse of the defendant, warranted to have been hunted with the Bicester hounds. By a condition of the contract he was to be at liberty to return the horse, if it did not answer its description, up to the Wednesday evening following the sale. Previous to removing it from the defendant's premises he was told by the groom who had charge of it, but who was not in the defendant's employ- ment, that it had not, nor had it, in fact, been hunted with the Bicester hounds. The plaintiff, nevertheless, took the horse away. While it was in his possession, though not through any neglect or default on his part, it met with an accident which depreciated its value. He returned it before the Wednesday evening, and brought an action to recover the price he had paid for it. Held, first, that the plaintiff's conduct in removing the horse after the information given him by the groom did not deprive him of his right under the contract to returnthe horse ; and, secondly, that his right to return it was unaffected by such accident. Mead v. Tattersall (Exch.), I, 140. 18. for breach of contract. The defendants agreed to supply the plaintiffs with from 6,000 to 8,000 tons of coal, to be delivered into the plain- tiffs wagons at the defendant's collieries, in equal monthly quantities during the period of twelve months, at 5». 6(i. per ton. Duritg the first month the plaintiffs sent wagons to receive only 158 tons. Immediately after the first month had expired, the defendants informed the plaintiffs that, as the plain- tiffs had taken only 158 tons, the defendants would annul the contract. The plaintiffs refused to allow the contract to be annulled, but the defendants declined to deliver any more coal. Ileld, that the breach by the plaintiffs in taking less than the stipulated quantity during the first month did not entitle the defendants to rescind the contract. Simpson v. Crippin (Q. B.), IV, 200. 19. for concealed defect. The defendants, being shoe manufacturers, contracted with the plaintiffs to supply 30,000 black army shoes as per sample, to be delivered free at a wharf, to be inspected and quality approved before shipment, and payment to be made in cash at the time of each delivery. It was well known to the defendants that the shoes were required for the French army, for a winter campaign. A sample shoe was deposited, and a large num- ber of shoes having been inspected and approved by the plaintiffs' agent under the contract, invoices for such shoes were made out and signed by the plain- tiffs' agent, and the shoes were then sent to Fenning's Wharf, London, which had been named by the plaintiffs as the place for delivery. On the inspection of the shoes the soles were not opened, and without opening them it was im- possible to tell what the " fillings " of the soles consisted of. The shoes were paid for by the plaintiffs and forwarded by them to Lille for the purpose of meeting a contract entered into with the French government for the supply of shoes for the French army. Circumstances had in the meantime occurred which gave rise to suspicions on the part of the plaintiffs that the shoes so forwarded might contain paper in the soles ; and the defendants, knowing at that time that the shoes were intended to be sent to Lille under a contract for the supply of shoes to the French army, and would have to be passed by the Freneh authorities there, signed a letter to the plaintiffs, ag;reeing to take back 448 SALE. the shoes that might be thrown on their hands in consequence of paper being found in them, it being understood that they would not take back any large number of shoes if paper should be found in only a few pairs. The shoes were tendered to the French authorities at Lille and rejected, because a great number of pairs were found, on bein^ opened, to contain paper. A consider- able number of the shoes being afterward opened, a very large proportion of those so opened were found to contain paper in tlie soles. Shoes with paper in the soles are not fit for army shoes. A small quantity of shoes, which had been inspected and approved under the contract, and the price of which had been paid, had been delivered at Fenuing's Wharf and not forwarded to Lille. The plaintiffs gave notice to the defendants that they rejected the shoes deliv- ered, and refused to receive any more, and brought an action against the de- fendants for breach of contract, claiming to be entitled to throw the shoes already delivered under the contract upon the defendants' hands at Lflle and at Fenning's Wharf, and to recover {inter alia) the amount of the price of the shoes. The jury found at the trial that the defects in the shoes could not have been discovered by any inspection which ought reasonably to have been made. Helcl^ that the letter of the defendants must be treated as a new and additional contract between the parties, adding fresh terms to the original contract with reference to the difficulties that were likely to arise with the French authorities at Lille ; and upon the proper construction of the whole contract, including the letter, the plaintiffs were entitled to throw the shoes on the defendants' hands at Lille and at Fenning's Wharf, and recover the price of them. • Per BovrLL, C. J., and Btles, J. • But for the letter, and under the contract as it originally stood, the plaintiffs coftld not have rejected the shoes and re- covered the price of them, having accepted them and dealt with them as their own property. Per Brett, J. : Apart from the special agreement contained in the letter, the plaintiffs would have been entitled to return the shoes on the defendants' hands at Lille, and to recover the price of them, inasmuch as the inspection in London was ineffectual by reason of a latent defect for which the defendants, as maniifacturers of the shoes, were responsible, and the shoes were rejected immediately upon opportunity occurring for the discovery of such defect. Seilbutt V. Hickson (Com. PL), III, 328. 20. for fraud. A vendor of goods may, after notice that a fraud has been practiced upon him in the purchase, elect to rescind it, and so long as he has made no election he retains the right to do so or not, subject to the con- dition that, if in the meantime an innocent third party has acquired an inter- est in the property, or if in consequence of his delay the position even of the wrong-doer is injuriously affected, he cannot then rescind. Lapse of time without rescinding is evidence of an election to affirm the sale ; but the mere fact that the wrong-doer has commenced an action on the contract will not preclude the defrauded party from exercising "his election to rescind, and he may do so by plea setting up the fraud, and claiming back the property on that ground. Glougli v. London & Northwestern By. Go. (Exch.), I, 148. 21. Although, in an action by the wrong-doer himself against the ven- dor, it might be necessary, in setting up the fraud as a defense, to bring into court the money paid to him on the sale, yet it is not necessary in an action SALE. 449 by a third party either to bring in the money or to aver readiness and willing- ness to return it. lb. 22. ^ for insolvency of purchaser. The defendants had, on the 5th of February, sold to the plaintiflFs 200 tone of iron, to be delivered twenty-five tons monthly at £5 per ton, net cash, or by four mouths' bill with 2s. Qd. per ton added. By the usage of trade no delivery was due under this contract till the 1st of April. On the 12th of March the plaintiffs found themselves to be insolvent, and they gave notice of the fact to the defendants. On the 16th of March they filed a petition in the Bankruptcy Court for liquidation by arrange- ment or composition. The usual course of business under previous contracts between the parties of a similar description was for the defendants to deliver upon such contracts without further demand of delivery. No delivery, how- ever, was made by the defendants or claimed by the plaintiffs in April. On the 5th of April, at the first meeting of the creditors, a resolution was passed to accept a composition of five shillings in the pound. Though the existence of the contract was mentioned at the meeting, no mention was made of it in the written statement of the plaintiffs' affairs. No step was, taken in relation to the contract by either party until the 13th of May, when, the market for iron having risen, the plaintiffs claimed the delivery of iron in fulfillment of the contract, offering and being ready to pay cash for it. The defendants replied, stating that the plaintiffs having failed to perform their part of the contract there was an end of it. The plaintiffs thereupon brought an action against the defendants for non-delivery of the iron. Held, that the effect of the facts was that there had been a rescission of the contract before the 13th of May, the conduct of the plaintiffs having been such as to justify the defendants in the belief that the plaintiffs intended to abandon the contract upon their insol- vency, and there being evidence that the defendants in such belief had like- wise abandoned it. Morgan v. Bain (Com. PL), XI, 220. 23. Where there is a contract for the sale of goods to be delivered by installments, the price of each installment being payable on delivery, and the buyer does not pay for one installment, under such circumstances as to give the seller reasonable ground for believing that he will be unable to pay for the installments to be delivered in future, and that he does not intend to go on with the contract, the seller is justified in repudiating the contract. Bloomer v. Bernstein (Com. P1.),X, 819. 24. Excuse for non-delivery. The defendant contracted to sell to the plaintiffs 250 tons pig-iron at 56«.per ton, half to be delivered in two, remainder in four weeks ; payment, net cash fourteen days after delivery of each parcel. The market was rising, and, notwithstanding urgent demands by the plaintiffs, the delivery of the first 125 tons was not completed for nearly six months. The plaintiffs refused to pay for the -first parcel, claiming a right to set off the loss they had sustained from being obliged to procure other iron in conse- quence of the defendant's default ; but they still urged the delivery of the second parcel. The defendant, treating the refusal to pay as a breach and an abandonment of the contract by the plaintiffs, declined to deliver any more. There was no suggestion of inability on the part of the plaintiffs to pay, and the price of the first parcel was ultimately paid. Held, that the mere refusal to pay for the first parcel did not, under the circumstances, warrant the de- 57 450 . SALE. SEA-SHOEE. fendant in treating the contract as abandoned and refusing to deliver the re- mainder, and that the plaintiflFs were entitled to damages for *he breach. Freeth v. Burr (Com. PI.), IX, 393. 25. The defendants in October, 1870, contracted to sell to the plaintiffs 3,000 tons of iron " delivery in monthly quantities [of 166 3-3 tons] over 1871, or sooner if required ; " payment by four months' acceptance from the 10th of the month following delivery. In January, 1871, 101 tons were delivered, but the plaintiffs did not then demand the delivery of the balance of the monthly quantity. In February, 1871, and at several periods between that date and December, 1871, the plaintiffs requested the defendants to forbear from delivery of more iron under the contract, and the defendants accordingly only made partial deliveries during the several months of 1871, up to and including November. In December the plaintiffs required delivery of the residue of the whole 3,000 tons. The defendants refused it, and denied that they were liable to deliver any more iron under the contract, except what was due on the monthly balance. The plaintiffs then brought an action for non-delivery. Held, by the Exchequer Chamber, reversing the j udgment of the court below, that, without deciding whether the defendants could be required to deliver in December at once the whole balance of the 3,000 tons, they remained liable to deliver it at some reasonable time, atd not having asked for such reasonable time, but having repudiated their liability, they had no defense to the action. Tyers v. Bosedale, etc.. Iron Co. (Bxch.), XII, 631 ; reversing S. C, VII, 373. 26. The plaintiff and defendant entered into an agreement in March, whereby defendant agreed to sell and plaintiff" to purchase " 300 tons of regent potatoes grown on land belonging to defendant in W., at rate of £3 10«. 6(Z. per ton, to be delivered in September or October, and paid for as taken away.'' In March defendant had sixty-eight acres ready for potatoes, which were sown, and were amply sufficient to grow more than 300 tons in an average year ; but in August the potato blight appeared and the crop failed, so that the defendant was able to deliver only 80 tons. The plaintiff having brought an action for the non-delivery of the other 130 tons, held, that the contract was for a portion of a specific crop, and the contract must be taken to be sub- ject to the implied condition that the parties shall be excused, if, before breach, performance becomes impossible from the perishing of the thing with- out default in the contractor. Howell v. Goupland (Q. B.), X, 110. See Contract ; Fhatjds, Statute of ; Vendor and Vendee. SALVAGE — See Ships, etc. SEA-SHORE. 1. Title. A possessory title sufficient against a trespasser may be estab- lished by persons claiming foreshore, without producing evidence sufficient to displace the title of the Crown. Corporation of Hastings v. Ivall (Eq. C), XIII, 501. 2. In a suit against a trespasser" by persons claiming title to foreshore and giving evidence of acts of ownership in support of their title, it is not open to the defendant to prove any acts of ownership by the Crown, except such as can be shown to have been done with the knowledge of the plaintiffs. lb. SALE. SEDUCTION. SEPARATION DEED. 451 • 3. Queen Elizabeth, by royal letters patent, granted to the Corporation of Hastings certain lands in and about Hastings, which were liable to forfeit- ure, as being affected by superstitious uses, and had been previously con- cealed, and " all that her parcel of land and her hereditaments called the' Stone Ueache with the appurtenances in Hastings aforesaid, in her said county of Sussex, and all messuages, houses, edifices, and buildings whatsoever, with their appurtenances, in and upon the aforesaid parcel of land called the Stone Beache." Held, (1) that there was no presumption from the language of the grant against the extension of the grant to the part of the beach below high-water mark ; (2) that inasmuch as it appeared that the expression " Stone Beache " was now applied to the entire part of the beach covered with shingle, which extended below as well as above high-water mark, and that the inferior boundary, called the " Stone's Foot," was liable to vary according to the state of the wind and tide, the whole present foreshore, whether now shingle or sand, must, as against a person not claiming any title in himself, be presumed to be included in the grant ; and an injunction granted accordingly to restrain the deposit of earth' on the sand below the Stone's Foot. lb. See Alluvion ; Fishbkt ; Jurisdiction. SEAL — See Cobpokation. SECURITY FOE COSTS. Return to reside. Pending a reference, the plaintiflF, a foreigner, whose domicile was in Holland, but who for some years had occasionally resided at a furnished lodging in London, went abroad. During his absence from this country, the defendant obtained an order for security for costs ; the court re- fused to rescind the order, upon an affidavit that the plaintiflF had returned to England, and intended to remain there until the final settlement of the action Westenberg v. Mortimore (Com. PL), XIII, 335. SEDUCTION. Loss of service essential to right of action. The plaintiff's daughter was in service as a governess, and was seduced by the defendant whilst on a three days' visit, with her employer's permission, to the plaintiff, her mother. Dur- ing her visit she gave some assistance in household duties. At the time of her confinement she was in the service of another employer, and afterward returned home to her mother. In an action for her seduction brought by the mother, held, that there was no evidence of service at the time of the seduction, and that, therefore, the action was not maintainable. Held, also, that the action must also fail on the ground that the confinement did not take place whilst the daughter was in the plaintiff's service. Hedges v. Tagg (Exch.), n, 679. SELLING LIQUORS — See Criminal Law. SEPARATION DEED. 1. Annuity, provision for. By a separation deed, reciting that differences existed between the defendant and his wife, and that they had agreed to sepa- rate, the defendant covenanted with trustees to pay them an annuity for his 453 SEPARATION DEED. SET-OFF. wife's support " during their joint lives and so long as they should live sepa- rate and apart." The deed contained clauses which indicated that the parties to the deed contemplated that the marriage relation would continue to exist •between the defendant and his wife. In an action by the trustees for arrears of the annuity, held, that a plea setting forth the deed and alleging the wife's subsequent adultery, and the dissolution of the marriage in consequence, was bad, there being no express words limiting the defendant's obligation tp the period during which the marriage tie subsisted. Cha/i'lesworth v. Holt (Exch.), VII, 315. 2 Quare, whether 32 & 33 Vict., c. 61, s. 5, applies to deeds made before the passing of the act ? lb. SET-OFF. 1. Equitable. To a declaration for money lent and paid and commission, the defendant pleaded for a defense on equitable grounds, that it was agreed between the plaintiffs and himself, in the following terms, viz., that he should consign certain rice to the plaintiffs' firm at Buenos Ayres and Monte Video, for sale by the plaintiffs for him upon commission : that the plaintiffs should make certain advances against the rice and pay the expenses of the consign- ment ; and that the plaintiffs should sell the rice, and satisfy out of the pro- ceeds the said advances, expenses, and commission, and pay to the defendant the balance remaining out of such proceeds. The plea further stated that the rice was duly consigned to the plaintiffs, under the agreement ; that the claims in the declaration were the advances, expenses and commission con- templated by the agreement, and that the plaintiffs were guilty of such negli- gence and improper conduct in the care of the rice and the management of the sale of it, that it fetched much less than it ought to have done, and insufficient to satisfy the advances, expenses and commission, whereas it would but for their negligence and misconduct, have realized sufficient, and much more than sufficient, to have fully paid and satisfied the same ; and the deficiency arising upon the sale, which was the claim for which the action was brought, had, therefore, entirely arisen from the plaintiffs' negligence, default, and misconduct. Held, that the defendant's claim could not be set off against the plaintiff's demand, because it was for unliquidated damages, and because the cross-claims are not connected in the sense in which they must be for the pur- poses of an equitable set-off. Best v. Sill (Com. PI.), IV, 390. 2. Accounts at branch bank. The plaintiff having an account at the L. branch of the defendants' bank, which showed a balance to his credit exceed- ing £33, drew checks to that amount on that branch. At the same time he was indebted to the bank at their B. branch in an amount which, having regard to his whole account, reduced his assets in the bank's hands to a few shillings only. The bank, without any notice to him, transferred the B. debt to the L. branch, and refused to pay the checks on presentment. There was no special contract between the parties that each account should be kept separate. Seld, that the bank was entitled at any time to combine the accounts, and to charge the L. account with the B. debt. Garnett v. McKewan (Exch.), IV, 419. 3. Debt against share of estate. An administrator is entitled to set off against the share of one of the next of kin in the intestate's estate, the whole SET-OFF. 453 of a debt of which part had become baired by the Statute of Limitations, White V. OordweU (Eq. C), XV, 525. 4. Debts in different rights. N. and C. were executors of a will and trustees of the residuary real and personal estate of a testator who died in 1859. N. and F. were tenants for life of the residuary estate in equal shares. In Janu- ary, 1873, C. was residing abroad, and N., being about also to go abroad, gave to P. (the solicitor of the executors and trustees) an authority on behalf of both trustees to receive the rents of the real estate and pay the out-goings. Under this authority P. received the rents ; and at his death a considerable sum was due from him in respect thereof. P.'s estate proved insolvent, and the usual creditor's decree was made for administration. Subsequently to the decree P. assigned to N. all P.'s interest in the sum due from P. N. was in- debted to A. and B. as trustees for P. in a sum, the repayment of which was secured by a mortgage of real estate belonging to N.; and this sum was paid into court in the suit to a separate account, under an order made without prejudice to any question as to set off. N. afterward presented a petition claiming to be entitled to set off the debt due from P, against the mortgage debt, and seeking to have the amount of the debt due from P. paid out of the fund standing to the separate account. Held, that as regards P.'s interest there could be no set off, inasmuch as it was not assigned to N. until after the decree. Held, also, that the debt due from P. being either due to both trustees and executors, or, if due to N. alone, due to him in his character of trustee and executor, could not be set off against a debt due from him individually. Mid- dleton V. Pollock; Ex parte Nugee (Eq. C), XIII, 588. 5. A debt due to the administrator of an intestate in his own right from one of the next of kin may be set off, in a suit by the next of kin for adminis- tration of the estate, against a sum due from the administrator in respect of the next of kin's share of the intestate's estate. Taylor v. Taylor (Eq. C), XIII, 692. 6. Debt of agent. In order to constitute a valid defense to an action by a principal for goods sold by his agent, the plea should show that the contract was made by a person whom the plaintiff had intrusted with the possession of the goods ; that that person sold them as his own goods, in his own name, as principal, with the authority of the plaintiff; that the defendant dealt with him as, and believed him to be, the principal in the transaction, and that, be- fore the defendant was undeceived in that respect, the set-off accrued. Barries Y. Imperial Ottoman Bank (Com. PI.), VII, 138. 7. It is not necessary, in such a plea, to negative " means of knowl- edge " that the seller was dealing as an agent. lb. 8. To a count for goods sold and delivered the defendants pleaded that the goods were sold and delivered to them by S., then being the agent of the plaintiffs, and intrusted by them with the possession of the goods, as apparent owner thereof ; that S. sold the goods in his own name and as his own goods, with the consent of the plaintiffs ; that, at the time of the sale, the defendants believed S. to be the owner of the goods, and did not know that the plaintiffs were the owners of, or interested therein, or that S. was agent ; and that, be- fore the defendants knew that the plaintiffs were the owners of the goods, or that 8. was agent in the sale thereof, S. bera,me indebted to the defendants, 454 SET-OFF. etc., claiming a set-off. Replication, that, before the sale by S., tlie defendants had the means of knowing that he was merely apparent owner of the goods, and that the same were intrusted to him as agent, and that S. was agent, and as such sold the goods to the defendants. Held, that the plea was good, and the replication no answer to it. lb. 9. Debt of cestui que trust. To a declaration by the holder against the acceptor of several bills of exchange the defendant pleaded, by way of equit- able defense, that the drawers became bankrupt, and that the plaintiff received £425 as a dividend from their estate on account of the bills, and as to that sum was suing only as trustee for the drawers ; and the plea claimed to set off a debt due to the defendant from the drawers. Held, a good equitable defense pro tanto. Thornton v. Maynan-d (Com. PI.), XIV, 523. 10. General balance. The 0. bank kept three accounts at the A. bank, namely, a loan account, a discount account, and a general account. They, from time to time, received advances from the A. bank, which were entered in the loan account, and to meet which they deposited securities with the A, bank. In the course of the transactions the 0. bank deposited three bills of exchange with the A. bank, accompanied by a letter stating that they proposed to draw upon them for £10,500, but that, as their credit would not afford a margin to that extent, they sent these bills as a collateral security. The 0. bank became insolvent and was wound up. Held, that there was nothing in the course of dealing or in the terms of the letter to exclude the general rule that a banker has a lien on the securities deposited by a customer for the cus- tomer's general balance, and that, the balance of the loan account being satis- fied, the A. bank might retain the bills for the balance of the general account. Matter of European Bank (Chan. App.), IV, 745. 11. Mutual acceptances. The plaintiff bank sold acceptances of theirs to C. & Co., partly in consideration of acceptances of C. & Co. The firm of C. & Co, consisted of two partners, both of whom, in 1866, executed assignments for the benefit of their separate creditors, one of which assignments was reg- istered under the Bankruptcy Act of 1861, but the other was not ; and the partnership affairs were afterward wound up in a chancery suit. At the time when these assignments were executed, the acceptances of C. & Co. were not due, and were in the hands of third parties, who afterward re-assigned them to the plaintiff bank, in order that it might establish a set-off against C. & Co. ; and it was agreed that any moneys recovered by means of the set-off should be divided between the plaintiff bank and the holders of the acceptances in certain proportions. Held, that, as there was no bankruptcy of the firm of C. & Co., the plaintiff bank were not entitled to set off the acceptances of C. & Co. against the acceptances of the plaintiff bank. London, etc., Bank v. Narraway (Eq. C), V, 736. 12. Senible, that the plaintiff bank were only in the position of trustees of the acceptances of C. & Co., and on that ground also, were debarred from claiming a set-off. lb. 13. Profits. In an action for breach of a contract for the quick discharge of a ship made with several persons jointly, where some of the plaintiffs had made profits by reason of such breach of contract which they would not other- wise have made, through another ship in which they were interested having SET-OFF. SETTLEMENT. 455 l>een substituted for the purpose for which the former ship was required ; held, that the amount of the joint damages could not be reduced by the profits HO made by some of the plaintiifs individually. Jebsen v. East, etc., Dock Go. (Com. PL), XII, 358. 14. Sum received for insurance. A railway company cannot, in an action against it for injuries sustained by a passenger through its negligence, set oflP a sum received by the plaintiff on an accidental insurance policy in reduction of the damages. Bradburn v. Great Western By. Go. (Exoh.), XI, 330. 15. Joint against separate debt. There is no rule that a debt due to joint creditors, which has been contracted by fraud, can be set oflf against a separate debt due from one of the joint creditors. Middletonw. Polloch ; Knight, Ex parte (Bq. C), XV, 467. 16. P., the solicitor of K. and R. (who were trustees of a marriage set- tlement), received on their behalf the sum of £4,000, and represented that he had invested the whole of it on mortgage. He did invest on mortgage two sums of £2,200 and £850, part thereof; but he never invested the balance of £950. The debt of £3,300 was (with the knowledge of K. and R.) paid off and received by P. , and retained by him for reinvestment, but no reinvestment was ever made. P. died insolvent. Held, that neither of the sums of £3,200 and £950 due from his estate could be set oflF against a separate debt due to the estate from K. lb. 17. Unliquidated damages. Under the Bankruptcy Act of 1869 the right of set-off is extended to unliquidated damages. Booth v. Hutchinson (Eq. C), V, 697. 18. Where a person from whom rent is due to an estate in course of administration under the Bankruptcy Act, 1869, has a claim against the estate, he may set off his claim against all rent due down to the close of the bank- ruptcy, lb. See Bakkbuptct ; BrLL op Lading ; Estoppel ; Pbincipal and Surety. SETTLED ESTATES. Improvement of. Under the Settled Estates Act (19 & 30 Vict., c. 130), s. 33, money arising from timber cut under an order of the court was ordered to be expended in erecting new farm buildings and other permanent improve- ments of the property. In re Newman's Settled Estates (Chan. App.}, X, 666. SETTLEMENT 1. Covenant for. Where a covenant to settle after-acquired property is limited to funds of a specified amount which shall at any time be acquired, a condition is implied that the amount shall be made up of funds derived from the same source. Hood v. Franklin (Eq. C), VI, 836. 2. Where a party, having entered into such a covenant, becomes entitled in possession to property which would be subject to the settlement if sufficient in amount, and which has been reduced below the specified amount by the exercise of powers of advancement, the amount received by anticipation must 456 SETTLEMENT. be included for the purpose of determining whether the fund is large enough to be brought into settlement. lb. 3. Validity ; illegal consideration. A court of equity will not, at the in- stance of a settlor or his legal personal representative, adversely set aside a settlement by which the settlor confers on a stranger the absolute beneficial interest in property legally vested in trustees, although such settlement may have been made for an illegal consideration not appearing on the face of the instrument. Ayerst v. Jenkins (Eq. C), VI, 756. 4. A widower, two days before going through the ceremony of mar- riage with his deceased wife's sister (which ceremony was known to both parties to be invalid), executed a deed by which it was recited that he was desirous of making a settlement and provision for the lady, and had trans- ferred certain shares into the names of trustees upon the trusts thereinafter declared, being for the separate and inalienable use of the lady during her life, and after her deathas she should by deed or will appoint ; and they after- ward lived together as man and wife until the widower's death. Ten years after such death, and some time after the lady had married, the legal personal representative of the settlor instituted a suit to set aside the settlement, as being founded on a bad and illegal consideration. Held, that the suit could not be maintained. lb. 5. Repugnant limitations. A fund was settled in trust for W., the illegiti- mate daughter of the settlor, for life, and in the event, which happened, of her not at her death being under coverture, for her absolutely, with a proviso that if a,ny estate, interest, or benefit should, under the powers and provisions of the settlement, be undisposed of, or in the events which should happen would, but for the proviso, be held in trust for the Crown, or belong bene- ficially to the Crown, then and in every such case the estate, interest, or bene- fit should belong to and be held in trust for her father for life, and after his death, for her mother. W. having died intestate, the Crown claimed the fund. Held, that the fund vested absolutely in W. at her death, and that the gift over was repugnant and void ; and consequently that the Crown was entitled to the fund. Matter of WUcock's Settlement (Chan. Div.), XV, 708. 6. No power of revocation. The absence of a power of revocation, and the fact that the attention of the settlor was not called to that absence, do not make a voluntary settlement invalid ; they are merely circumstances to be con- sidered in deciding on the validity of a voluntary settlement. Hall v. Hall (Chan. App.), V, 645 ; reversing S. C, III, 783. '• A widow instructed a solicitor to prepare a deed settling certain houses and buildings on herself for her life, and after her death, for the bene- fit of her children. The deed, as prepared, did not exactly correspond with the instructions, but was read over to and executed by her. There was no suggestion made to her that the deed ought to contain a power of revocation. Some years afterward she burnt it, and expressed satisfaction at having got rid of it. She executed a mortgage of part of the settled property, after ask- ing the consent of a son who was both beneficially interested and a trustee of the settlement, and made a will purporting to dispose of the whole property. Held, that, under the circumstances, the deed of settlement was valid, and SETTLEMENT. 457 not affected by the want of a power of revocation or by the divergence from the instructions. lb. 8. Construction; proceeds of sale. Under a settlement real estate was limited to such uses as A. and B. should by deed jointly appoint, and subject thereto to the use of A. for life, with remainder to the use of B. for life, with remainder to the first and other sons of B. in tail, with divers remainders over ; and there was a power of sale vested in four trustees and exercisable at the request of A. and B., and the survivor of them. By a deed (which contained a recital that A. and B. were desirous of selling part of the settled property, and with a view to facilitate the sale and conveyance thereof to the respective pur- chasers, had agreed to execute the deed), A. and B., in exercise of the joint power of appointment, appointed part of the settled property to trustees upon trust for sale ; and it was declared that the trustees should stand possessed of the proceeds upon the trusts intended to be declared by a deed of even date. No deed declaring the trusts was ever executed, and there was evidence to show that the deed of appointment was executed with the view of avoiding the trouble and expense of an application to the trustees to exercise the power of sale. Held, that the disposition of the proceeds of sale was a question of intention ; and that, both on the terms of the deed of appointment (independ- ently of the evidence) and also having regard to the evidence, the proceeds of the sale remained subject to the trusts of the settlement. Biddulph v. Wil- liams (Chan. Div.), XV, 694. 9. Survivor. The word " survivor " in one of the clauses of a settlement may be read " other," in order to effectuate the clear intention of the parties, notwithstanding that the same word may require to be read in its natural sense in other clauses of the same settlement referring to the same fund. Mat- ter of Palmer's Trusts (Eq. C), XI, 854. 10. Succession under. The only son of a, marriage cannot succeed to an estate which had been limited to A. and his heirs in tail male, " except an eldest son," and does not come in under a proviso giving the estate to A. and " all and every other the sons of the body of A., save and except an eldest son." Faite v. BermingTiam (H. of L.), XIV, 26. 11. H. T., who was possessed of an estate called S., married, in 1793, Elizabeth C, who was possessed of an estate called B. They had three chil- dren, H. M. T., G. G. T., and Melesina T. On the marriage of H. M. T., in 1836, the estate of S. was settled on H. T. and Elizabeth (father and mother) for life, with an annuity to H. M. T., and on the death of the father and mother the estate of S. was to go to H. M. T. for life, and then to his sons in tail male, in default, etc., to Gt. G. T. and his sons in tail male. On the marriage of G. G. T., in 1834, the estate of B. was settled on H. T. (the father) for life, then on Elizabeth his wife, then on G. G. T. for life, then to his sons in tail male, and in default, etc., to Melesina for life, then to the use of H. M.'T., then to the use'of the second son of H. M. T. and his heirs male, and in default, to the use of the third, fourth, fifth, and of " all and every other the son of the body of H. M. T., save and except an eldest son, severally, successively, and in re- mainder one after another," etc., the elder of such son and sons, other than an eldest son, as aforesaid, to be preferred," etc., " and in default or failure, etc., to the use of Henry Arabin, his heirs and assigns forever." And in case, un- 58 458 SETTLEMENT. SHERIFF. der the deed of 1836, any person of the issue of G. G. T., other and except a youngest or only son, or the heir male of his body, should become entitled to S., then the use of the estate of B. should thereupon cease, and the lands of B. should thereupon go over to the person next entitled. H. M. T. had one only son. G. G. T. had no issue. Melesina had been in possession of the estate B., and was dead. Held, that on her death the ultimate remainder in the estate of B. given to Henry Arabin took effect under the words which ex- cluded an eldest son of H. M. T. holding S,, from succeeding to the possession of B., and that an only son of H. M. T. had no title to B., and was not to be treated as other than an eldest son under the clauses which gave B. to the sec- ond, third, fourth, fifth, and all and every other son of H. M. T., save and ex- cept an eldest son. lb. 12. False recital in. A trustee executed a settlement, declaring trusts of a sum of £2,000 belonging to the settlor (a married woman), which sum was thereby untruly recited to be in his hands, upon the faith of a promise by the married woman to pay the sum to him out of her separate estate. The sum was never paid. Held, that neither the trustee of the settlement, nor a, volunteer under it, could enforce the promise. Marler v. Tom/mm (Eq. C), VII, 636. 13. Mistake in. A family settlement will not be supported if founded on a mistake of either party to which the other party is accessory, although such mistake may have been innocently made. Vane v. Vane (Eq. C), XV, 553. 14. Revocation by ■mill. By a settlement dated the 6th of January, 1858, the settlor declared that a sum of money should be held on trust as he should by deed or will appoint, and in default of appointmeat, in trust as therein mentioned. A will made by the settlor five weeks before the settlement con- tained a general residuary bequest. Held, that although a general residuary bequest would operate as an execution of a power in a subsequent settlement, still the court had power in consitruing both instruments, to consider the sur- rounding circumstances, which showed that the settlor never intended the settlement to be revoked by a prior will, and that consequently the will was not an execution of the power. In re Ruding's Settlement (Eq. C), III, 736. See Fbaud ; Markiage Settlkmbnt. SEWERS — See Emiitbkt Domain ; Negligence ; Nuisance. SHERIFF. 1. Liability for false return. The plaintiff', an execution creditor, delivered a writ of fi. fa. to the sheriff", who proceeded to execute it by seizing goods upon the premises and apparently the property of the execution debtor, but which were then, in fact, in possession of the holder of a bill of sale to whom they had been previously assigned. The sheriff remained on the premises until dismissed by the plaintiff''s attorney, and, being directed to return the writ, made a return, that he had seized goods of the debtor and kept, them until ordered by the plaintiff"s attorney to withdraw from possession. To an action brought by the plaintiff' against the sheriff for not levying under the writ, and for a false return, the defendant pleaded {inter alia), nulla bona, and at the trial, set up, as his sole defense, the bill of sale, which the jury found SHERIFF. SHIPS AND SHIPPING. 459 to be valid, and a verdict was entered for the defendant. Meld, that actual damage was necessary to support the action ; that the defendant was not estopped by his return from proving that the goods seized did not belong to the debtor ; that, as they were found to be the property of the assignee, they were not available for sale under the execution, and that, therefore, the plain- tiff had sustained no damage from the conduct of the sheriflF, and could not maintain the action. Stimson v. Farnham (Q. B.), I, 60. 2. In an action against the sheriff for a false return of nuUa bona to plaintifE's writ of fl. fa. for £125, it appeared that the defendant had not levied at all. There were goods of the execution debtor of the value of £50 upon which he might have levied. There were two writs of fi. fa. against the execution debtor for more than £50 lodged with the sheriff prior to the plaintiffs writ ; but these prior writs were proved to be fraudulent as against creditors ; the sheriff had, however, no information as to this. Held, that the plaintiff was entitled to recover the £50 ; that it was the sheriffs duty to have levied, and the plaintiff might then have disputed the validity of the prior writs, and so obtained the proceeds of the levy. Dennis v. Whetham (Q. B.), Vni, 380. 3. In an action against the sheriff of the colony of New South Wales, hdd, that he was liable, without proof of malice or want of probable cause for a false return of rescue made by him upon a writ of capias ad respondendum, . for the damage which resulted to the plaintiff therefrom. Such return was conclusive at that stage of the proceedings as to the truth of the alleged res- cue by the plaintiff, and rendered him liable to attachment for a contempt of court without being allowed to show that the facts returned were untrue ; and, it being false, constituted a misfeasance by n public ministerial officer in the discharge of his duties. Brasyer v. Maclean (Priv. C), XIII, 223. SHIPS AND SHIPPING. I. ToifNAGE , 459 n. Master, powbes oi' 460 ni. Freight 461 IV. DEMtTKRAGE 462 V. Collision 463 VI. Pilots and Pilotage 467 VII. Salvage 468 Vin. Average 471 I. Tonnage. 1. Tonnage, measurement of. Where over the main deck of a ship there was a covering or awning open at the sides, and unfit for the carriage of cargo, passengers^. or crew, it was held by the House, affirming the decision appealed from, that tonnage was not chargeable in respect of such covering or awning as if it were a third deck. Held, that the ship in this case had not a third deck, available for cargo, or for the berthing or accommodation of passengers or crew. Lord Advocate v. Clyde Bteam Nav. Oo. (Sc. App.), XII, 104. 2. The measurement of the ship's tonnage should be in accordance with her carrying capacity. lb. 460 SHIPS AND SHIPPING. II. Master, powbes of. 3. To pledge credit. Where the owner of a ship had an agent at the port where she was lying, authorized and ready to supply the ship's requirements, held, that the master had no implied authority to pledge the owner's credit at such port for necessaries supplied for the ship's use. Chmn v. Roberts (Com. PI.), IX, 432. 4. To sell goods. The authority of the master of the ship to sell the goods of an absent owHer is derived from the necessity of the situation in which he is placed ; and, consequently, to justify his selling, he must establish (1) a necessity for the sale, and (3) inability to communicate with the owner. Under these conditions, and by force of them, the master becomes the agent of the owner, not only with the power, but under the obligation (within certain limits) of acting for him ; but he is not, in any case, entitled to substitute his own judgment for the will of the owner in selling the goods, where it is pos- sible to communicate with the owner. Australasian Steam, Na/B. Go. v. Morse (Priv. C), III, 100. 5. The possibility of communicating with the owner depends on the circumstances of each case, involving the consideration' of the facts which create the urgency for an early sale, the distance of the port from the owner, the means of communication which may exist, and the general position of the master in the particular emergency. lb. 6. Such a communication need only be made when an answer can be i obtained, or there is a reasonable expectation that it can be obtained, before the sale. Where, however, there is ground for such an expectation, every en- deavor, so far as the position in which he is placed will allow, should be made by the master to obtain the owner's instructions. lb. 7. Liens for necessaries. A master and part owner of a foreign ship ordered necessaries for the ship. The necessaries were supplied, and the master be- came liable for the payment of the same. Held, that the persons who supplied the necessaries were entitled to be paid for them out of the proceeds of the ship and freight, in priority to a claim of the master for wages and disburse- ments. T}ie Jenny lAnd (Adm. & Eccl.), II, 606. 8. The jurisdiction conferred on the High Court of Admiralty by s. 3 of the Admiralty Court Act, 1861 (24 Vict., c. 10), " over any claim for necessaries supplied to any ship elsewhere than in the port to which the Ship belongs,'' does not create a maritime lien, or render the ship chargeable for necessaries, until a suit therefor is commenced. Johnson v. Bla^k; The Two Ellens (Priv. C), II, 516. 9. A British colonial vessel was mortgaged by her owners to B, The mortgage was duly registered under the Merchant Shipping Act, 1854. In February, 1868, while lying in the port of London, the appellants, on the order of the master, did work and furnished supplies to the ship necessary to put her in a seaworthy condition. In July, 1868, B. executed an instrument, trans- ferring the mortgage to the respondent, which was without valuable consid- eration, and was not registered, being made to enable the respondent to take charge of the ship for B. In the same month the respondent took possession of the ship. The appellants having instituted a suit against the ship to re- cover the amount due to them for the work and supplies, the respondent inter- SHIPS AND SHIPPING. 461 vened. At that time the ship was under the arrest of the court, at the instance of two of her crew, who had instituted a cause of wages. ' The owners were domiciled in Nova Scotia. The ship having been sold, the proceeds were found insufficient to satisfy the claim of the appellants and the mortgage debt. Held, that the respondent was entitled to have his mortgage debt satisfied be- fore the appellants were paid the amount of their claim. lb . III. Fbbight. 10. When earned. PlaintiflF's ship, with a general cargo, sailed from Lon- don for Havre with some petroleum on board. Under the bill of lading the plaintiff was to deliver the petroleum at Havre, and it was to be taken out by the defendant within twenty-four hours after arriving at Havre, or ten guineas a day was to be paid for demurrage. On the ship's arriving at Havre the authorities of the port made the captain take her away, in consequence of the petroleum being on board. Thereupon, he went to neighboring ports, but was not allowed to stay there. Returning to Havre, he discharged his general cargo, and no bill of lading having been presented to him, and no application having been made to him for the delivery of the petroleum, he brought it back to London. On the shipowner claiming freight, back freight, demurrage and expenses, it was Md, that he was entitled to freight, back freight and expenses. Freight is earned by the carriage and arrival of the goods, ready to be delivered to the merchant ; and although the petroleum could nflt be landed at Havre, it was in the port a reasonable time, during which the owner might have received it, and the freight was accordingly earned. Oaudet v. Brown; Owrgo ex Argos (Priv. C), VHI, 103. 11. In a case where no application for delivery is made, the captain may land and warehouse the cargo .at the expense of the merchant ; and where that is forbidden by the authorities of the port, he is not justified in destroy- ing the cargo. But in the absence of advices he may take it to such a place as, in his judgment, is most convenient for the merchant, and may charge to the merchant all expenses properly incurred; consequently, here the ship- owner was entitled to back freight and expenses. The demurrage and the expenses incurred in the ineffectual attempt to land at the neighboring ports were not allowed, but were looked on as part of the expenses of the voyage. lb. 12. Lien for. The defendants shipped coals on board the ship Pitho for ■Buenos Ayres, under a bill of lading making them deliverable to the consignees on payment of freight, and containing a memorandum : " The coals to be taken from the ship as soon as the master is ready to deliver, or to be landed at the expense and risk of the consignees." The Pitho arrived at Buenos Ayres on the 28th of November, 1869, and the master was ready to deliver the coals on the 33d of December ; but, no consignees appearing to claim them, he waited until the 30th of January, 1870, and then landed them. In an action against the defendants for damages for the detention of the ship at Buenos Ayres, it was left to the jury to say whether the defendants were responsible for the detention, and what would be a reasonable compensation for it. The jury found that the defendants were responsible for the detention, and they assessed the damages at £56. But the judge having, in answer to a question from one of the jury at the close of his summing-up, stated that, there being 462 SHIPS AND SHIPPING. no evidence there were warehouses at Buenos Ayres, such as existed at Liver- pool and other places, into which goods might be placed and kept subject to the ship-owner's lien for freight; under the Merchant Shipping Act, 1863, the Owners would lose their lien by landing the coals. Held, that, inasmuch as this answer was too general in its terms, and might have to some extent affected the assessment of damages, the defendants were entitled to a new trial. But, semMe, that alihough there was no " statutable " warehouse at Buenos Ayres, the master might still have landed the coals there without losing his possession and control over them (placing them in a warehouse belonging to or hired by his owners), and so have preserved his lien for freight. Mors-le-BlancTi v. Wilson (Com. PL), V, 386. 13. Right to, after abandonment of ship. A bark laden with a cargo shipped at Charleston, under bills of lading whereby the cargo was to be delivered on payment of freight at Bremen, while prosecuting her voyage to Bremen, was run into in the English Channel and damaged by another vessel, which was alone to blame for the collision. The master and crew of the bark abandoned her, and in her abandoned state she was taken possession of by salvors, who brought the bark and her cargo into Dover. The cargo was damaged by sea-water, and was alleged to be deteriorating. In a suit insti- tuted by some of the salvors against the bark, Jier cargo and freight, the court, on an application made on behalf, of the plaintiffs, without notice to the own- ers of the bark, ordered the cargo to be sold. The owners of the bark after- ward hearing of the order, and wishing to have the cargo transhipped and carried on to its destination, applied to the court to rescind the order, and offered to give bail for the cargo. The court, being of opinion that it was for the benefit of all parties that the cargo should be sold, refused to prevent the sale, but reserved all questions of freight. _ Afterward the cargo was sold, and the proceeds brought into court, and the owners of the bark then applied to the court to order the payment out of the proceeds in court of a sum of money in respect of freight. Meld, that, by the abandonment of the bark, the con- tract to pay freight had been dissolved, and that the owners of the bark were not entitled to any payment in respect of freight. The Kathleen (Adm. & Eccl.), XII, 645. IV. Dkmueragk. 14. Delay in loading. By charter-party the master of the plaintiff's vessel, the D., engaged to receive on board and load a cargo of coal at the port of L., " to be loaded with the usual dispatch of the port, or, if longer detained, to be paid 40s. per day demurrage," and the defendants engaged to load upon the above terms. The loading was to take place at the B. docks, and by one of the regu- lations of the docks no coal agent was to be allowed to have more than three vessels in the B. docks loading and to load at the cranes at one time. The defendants acted as their own coal agents, and when the charter-party was entered into they had three ships loading in B. docks, and ten other charters in their books having priority over the plaintiffs. In consequence of these engagements the D. was not allowed to go into the B. docks until thirty days after she was ready to do so. Seld, that the contract by the defendants was absolute to load with the usual dispatch of the port of L.; that the D. had SHIPS AND SHIPPINa. 463 not been so loaded ; and that the defendants were, therefore, liable to pay for the delay. Ashcroft v. Crow Orchard Colliery Go. (Q. B.), X, 167. 15. By a charter-party made by defendant's agent in France, defendant chartered plaintiff's ship, and it was stipulated that the ship should load a cargo of pressed hay at T., in France, and proceed direct to London ; and all cargo was to be brought and taken from ship alongside. Defendant's agent verbally told the master that the consignees would require the hay to be de- livered at a particular wharf in the port of London, to which the master as- sented. On arriving in that port the master was unable to land the hay at the wharf by reason of an order in council under the Contagious Diseases (Ani- mals) Act, 1869, forbidding hay from a French port to be landed in the United Kingdom. The order had been made before the charter-party was entered into, but neither party knew of it. After some delay defendant received the hay from alongside the ship into another vessel and exported it. There was no legal obstacle to doing this, but eighteen days were allov^ed by the defend- ant to elapse beyond the lay days. The plaintiff having brought an action for this detention of his ship, the defendant contended that the contract was for an illegal purpose, and therefore void. Held, that, although it was the in- tention of the parties, when the charter-party was entered into, to land the hay at London; yet as the contract was not made knowingly with the intention to violate the law, and as it could be carried out (as it ultimately was) without violating the law, it was not void ; and defendant was, therefore, liable for the demurrage. Waugh v. Morris (Q. B.), V, 197. 16. Delay in unloading. Under a charter-party from Riga to London the charterers were to " load and discharge as fast as the ship can work, but a minimum of seven days to be allowed merchants, and ten days on demurrage over and above the said lying days at £25 per day." Held, that the lying days from the context meant " working " and not ' ' running " days, and consequently that Sunday was not to be counted. Commercial Steamship Co. v. Boulton (Q. B.), XIII, 288. 17. The ship got into dock in London on a Tuesday evening at 5 P. St. She could not get to her berth till 8 A. M. on the Wednesday, when she began unloading, and continued till 8 P. M. She began again at 4 A. M. on Thurs- day, and finished at 8 P. M. All the lay days had been consumed at the port of loading. Held, that in the case pf demurrage a fraction of a day counted as a day, and consequently that the charterers were liable for two days' de- murrage, lb. 18. Detention by suit. No claim for demurrage or detention of a ship under warrant of arrest, issued by the unsuccessful promoters of a salvage suit, can be allowed in the absence of 'mala fides or malicious negligence. Turnbull v. The Straihnaver (App. Cas.), XV, 19. V. Collision. 19. Which in fault. The 17th section of the Merchant Shipping Act Amend- ment Act, 1873, enacts : " If in any case of collision it ig proved that any of the regulations for preventing collision contained in or made under the Mer- chant Shipping Acts, 1854 to 1873, has been infringed, the ship by which such regulation has been infringed shall be deemed to be in fault, unless it Is 464 SHIPS AND SHIPPING. stown to the satisfaction of the court that the circumstances of the case made departure from the regulation necessary. Held, that this section applies only to cases of collision where there has been a material infringement of the regu- lations which by possibility might have caused or contributed to the collision. The Magnet ; The autherUnd; The Carmll (Adm. & Bccl.), XIV, 670. 20. Article 16 of the Admiralty Regulations for preventing collisions at sea only applies when there is a continuous approaching of two steamships. The Jesmond and the Ea/rl of Elgin (Priv. C), II, 64. 21. When two ships under steam " are meeting end on, or nearly end on, so as to involve risk of collision," as provided for in article .13, and one of them at a proper distance ports her helm suflB.ciently to put her on a course which will carry her clear of the other, and enable her to pass on the port side, she thereby determines the risk, and is not approaching another ship so as " to involve risk of collision " within the meaning of article 16, and is not bound to slacken speed or stop. lb. 22. Inevitable accident. Two sailing vessels approaching stem on in such a manner as that, under the sailing rules, each would be bound to port, being in a dense fog, only sighted each other at a distance of about two hundred yards. The defendants' vessel having been close hauled on the port tack, was then preparing to go about, and had eased off her head sheets. Both vessels immediately ported, but came into collision. Only one minute elapsed between the time of sighting and the collision. The plaintiff's petition alleged that the defendants' vessel neglected to port, and it was stated, in answer to a question by the judge of the Admiralty Court, that the head sheets of the defendants' vessel were not again hauled aft. On this evidence that vessel was held to blame by the Admiralty Court, on the ground that she had not executed all the proper manceuvres which she might have executed after sighting the other vessel. Held, that the collision was the result of an inevit- able accident, the defendants' vessel having done all that could be effected by ordinary care, caution, or maritime skill in the short space of time that elapsed ; and that the plaintiffs, if they meant to rely upon the fact that the head sheets had not been again hauled back, ought to have alleged that fact in their petition as the cause of the collision, the allegation of neglect to port not sufficiently indicating the nature of such omission. The Marpesia; The America (Priv. C), III, 92. 23. A vessel in port was moored to a buoy, the use of which was sanc- tioned by the authorities, and, a storm being expected, she also had her anchor ready to drop. The mooring buoy broke and the vessel drifted. She attempted to cast anchor, but was prevented by inevitable accident. She came into collision with another vessel which was properly moored. Held, that the first vessel had not contributed by negligence to the collision. Doward v. Lindsay (Priv. C), VIII, S61. 24. Where the master of a ship takes all such precautions as a man of ordinary prudence and skill, exercising reasonable foresight, would use to avert danger, his owners are not held responsible because he may have omitted some possible precaution which the event suggests that he might have re- sorted to. lb. SHIPS AND SHIPPING. 465 25. When the authorities of a port permit vessels to moor, take in and discharge cargo at a certain buoy, it must be assumed that they sanction the use of the buoy and treat it as proper and sufficient mooring place, lb. 26. No light. A lighter of sixty tons burthen was proceeding under sail in the river Thames, above Gravesend.at night without any light being exhibited on board her, and came into collision with a steam vessel. In a suit instituted on behalf of the owners of the' lighter to recover in respect of the damage done to the lighter by reason of the collision, it was proved that the lighter was ordinarily employed in the river, and was not a sea-going vessel. Held, that the " Regulations for Preventing Collisions at Sea " did not impose upon the lighter any obligation to carry any light, and that the lighter was not to blame for having no light. The (J. 8. Butler (Adm. & Bccl.), XI, 406. 27. In a case where a sailing vessel under way, with her regulation- lights properly exhibited, was overtaken and run down by a steamer at night, it was held that no blame attached to the sailing vessel for not exhibiting a light over her stern. The Spencer (Adm. & Eccl.), XIV, 684. 28. Ijights not seen. When a vessel, casting off from moorings in a navi- gable river, places herself at night partly athwart the fairway, so that her regulation lights cannot be seen by vessels astern of her coming up the river, she is bound to make use of some conspicuous signal to warn them of her position. The John Fenwick (Adm. & Bccl.), II, 15.4. 29. Steamship, duty of. A steamship seeing a sailing vessel at a distance of two or three miles ought not, even if the lights of the sailing vessel are not visible, to take a course which will carry her across the bows of the sailing vessel. Bealy. Marchais; The Bougainville ; The Stevenson (Priv. C), VIII, 342. 30. In a case of collision, even if the light of one vessel was invisible, the vessel will not on that account be held to have contributed to the collision, where the other vessel has pursued a course which of itself would suffice to produce the collision. lb. 31. A manoeuvre, made too late to affect the collision, doe's not make the ship liable as having contributed to the collision, even if the manoeuvre was erroneous. Itf. 32 Where a steamship is approaching a sailing ship, and does not know what course the other ship is pursuing, it is her duty (whether the lights of the other vessel are visible or not) 1;p take no decisive movement until she can ascertain it. lb. 33 The law does not appoint any particular place at which the lights should be fixed, but they ought to be placed so as to be properly visible. SmMe, The fact that the lights of one ship are invisible to the other does not make the former ship contributory, when the course pursued by the latter is not in itself prudent and judicious. lb. 34. Art. 16 of the Rules and Regulations for preventing collisions at sea provides, that " Every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse ; and every steamship shall in » fog go at a moderate speed." A Btearuship navigating in a fog at a moderate speed hearing a, whistle sounded 59 466 SHIPS AND SHIPPING. many times, indicating that a steamer was approaching her, and had come very, near to her, so near that if the vessels had then been stopped they woul'd have been within hailing distance, is bound under the 16th Article not only to stop the motion of her engines, but to reverse them, so as to stop the motion of the vessel, and ought not to wait -until the vessels sight each other, when such a manoeuvre may be too late ; and is liable for a collision caused by its not doing so. Morton y. HutcMnson(Pnir . C), IV, 191. See order explanatory of shipping rules, lb. 641. 35. A screw steamship had just come out of the Regent's Canal Dock in the river Thames, about 3 A. M. on a December morning, when she came into collision with a dumb barge which was drifting up the river with the flood tide, and without having any light exhibited. Ileld, that the steamship might, under the circumstances, have kept out of the way of the barge, and that she ought to have done so, and that she was alone to blame for. the collision. The OwenWallis (Adm. & Eccl.), VIII, 653. 36.- In a dense fog it is the duty of a steam vessel to anchor as soon as circumstances will permit. A steam vessel proceeding, though at a moderate speed, under steam in a dense fog, after she reached a proper anchorage ground, held to blame for so doing. The Otter (Adm. & Eccl.), VIII, 674. 37 A steam ferry-boat started in a dense fog to cross a navigable river, those in charge of her having been informed that vessels were anchored in or near her track. The ferry-boat, although navigated with all ordinary care, ran into and damaged a ship at anchor. Held, that the ferry-boat was to blame. The Lancashire (Adm. & Eccl.), VIII, 669. 38. The steamship A. found at a foreign port the 8., a screw steamship, totally disabled in her machinery. Both vessels belonged to the same owners, and the A. took the S. in tow and" towed her into the English Channel. Both vessels were upwards of 1,000 tons net register, and owing to the disabled condition of the S. the towage was of a difficult character. Whilst the A. was proceeding with the S. in tow in the English Channel at night, a collision occurred between the A. and a sailing ship close hauled on the starboard tack. The damage done by tlie A. caused the sailing ship to sink, but before she sank, the S. ranged up alongside of her and came into contact with her. The sailing vessel had seen on her starboard bow a light at the mast-head of the A. three or four miles ofT and had kept her course. Those on board the A. had seen the green light of the sailing ship about three-quarters of a mile oif and about four points on the port bow of the A., and this was the first they had seen of the sailing ship ; on this light being seen, or shortly after, the helm of the A. was put hard aport. It was found as a fact that the A. had not a proper look-out, and that the A., if she had adopted proper measures in time, might have avoided the collision. Held, that it was the duty of the A. to keep out of the way of the sailing ship, and that she was to blame for the collision. The American and Tlie Syria (Adm. & Eccl.), XI, 395 ; afllrmed by Privy Council, S. C, lb. 75. 39. Held, also, that, having regard to the exceptional circumstances under which the towing was undertaken, the governing as well as the motive power being wholly with the A., the S. was not liable to be condemned in SHIPS AND SHIPPING. 467 damages occasioned by the collision. The S. cannot be deemed, in Intendment of law, to be one vessel with the A., or liable for her negligence. lb. 40. — — It is the general practice for steam vessels going down the river Thames to keep on the north side. If, therefore, a vessel rounding a bend on the north side, under a port helm, on her way up the river, sees the red light of one rounding the same bend on her way down, over her starboard bow, and nearer the north side than she is herself, she is not justified in supposing that the vessel coming down will cross her north and pass her on her port side ; but is bound to' keep out of the way, and is liable for a collision caused by her not doing so. Vessels, under these circumstances, are not crossing vessels within the meaning of the 14tli article of the Steering and Sailing rules. McUcomson v. General Steam Navigation Co. (Priv. C), IV, 183. 41. A schooner, close hauled on the starboard ta,ck at night, saw the starboard light and the two towing lights of a steam tug three points on her port 'bow about a mile off. The schooner, kept her lufiF. The steam tug had a fully laden ship in tow, and was steaming against a head wind in the open sea. The steam tug kept her course until it was too late to gfet out of the way of the schooner, and the steam tug and the schooner came into collision. Meld, that the schooner was right in holding her course, and that the steam tug was alone to blame. TJie Warrior (Adm. & Eccl.), IV, 608. 42. In a case where a collision occurred between a sailing vessel and a steam tug hove to with her engines stopped, held, that it was the duty of the steam tug to have kept out of the way of the sailing vessel. The Barker ; The Spindnft (Adm. & Eccl.), XIV, 699. VI. Pilots and pilotage. 43. Compulsory. A large steamship, bound for a foreign port and fully equipped for her voyage, left dock in the port of Liverpool about 11 p. M. She had a pilot on board, and those in charge of her intended, to take her out to sea at once. But after she got into the river it was determined that she should anchor there for the night and cross the bar in the morning. The pilot remained on board, and by his direction the vessel was brought up by her port anchor and sixty fathoms of chain. The ebb tide began to make soon after the vessel was brought up, and the pilot remained on deck until she was three- parts swung to the ^bb. He then went into a house on the deck under the bridge, and left orders that he was to be called if he was wanted. Whilst he was in the deck-house the vessel partfed her cable ; the pilot came on deck almost immediately afterward, and under his directions eflforts were made to bring the vessel up by her starboard anchor, but it did not hold, and although her fires were banked and steam was up, the vessel was allowed to drift down the river until she came into collision with a ship at anchor. Held, that the pilot was to blame for the collision, and that the vessel was " proceeding to sea " within the meaning of the Mersey Docks Consolidation Act^ 1858, so as to render the employment of the pilot compulsory by law. T}ie City of Gam- hridge (Adm. & Eccl.), VIII, 640. 44. When the employment of a pilot is within the provisions of s. 139 of the Mersey Docks Consolidation Act, 1858, such employment is compulsory. Wood V. Smith ; The City of dmhridge (Priv. C), IX, 256. 468 SHIPS AND SHIPPING. 46. The object of the master, when the vessel left the dock, was to get to sea as soon as he could, and he arranged with the pilot that the vessel should anchor in the Mersey for the night, but should go so far on the way as would enable her to cross the bar on the next morning's tide. Hdd, that the ship was proceeding to sea within the meaning oi s. 139 at the time she left the dock, and that the anchoring was not a discontinuance of her progress to the sea, but an act proper and reasonable to be done in the course of it. lb. 46. The 138th section of the act does not relate to the giving of extra remuneration j.o those pilots only who are voluntarily engaged. lb. 47. It may happen that a pilot who is cbmpulsorily engaged under the 189th section of the act by a ship proceeding to sea, may, by the ship's deten- tion in the river, become entitled to extra remuneration under the 138th sec- tion, lb. 48. By the Merchant Shipping Act, 1854 (17 & 18 Vict., c. 104), s. 353, the employment of pilots shall continue compulsory in all districts where it is compulsory at the time the act passed. By a. 379, ships (inter alia) employed in the coasting trade of the United Kingdom, when not carrying passengers^ ' shall be exempted from compulsory pilotage in " the Trinity House outport districts," which, by s. 370, comprise any pilotage district for the appointment of pilots within which no particular provision is made by an act of Parliament or charter." By the Ipswich Dock Act, 1853 (15 Vict., c. 116), b. 3, a former act, by which special provision was made for the appointment of pilots in the port of Ipswich, is repealed, and s. 91 enacts as to the appointment of sub-com- . missioners for examining pilots, etc., in the words of s. 5 of 6 Geo. 4, c. 135,- except that they are described as persona " resident within " the port of Ipswich, instead of "2X"held, that s. 91 was not a '■ particular provision," and that Ipswich was therefore a Trinity House outport district, and a coasting vessel not carrying passengers navigating that port was exempt from compulsory pilotage. Uadaraft v. Eewith (Q. B.), XIII, 393. VII. Salvage. 49. Suits for. Salvage suits may be conaolidated on the motion of the plain- tiffs and without the consent of the defendants. The Melpomene (Adm. & Bccl.) VII, 366. ' • ft 50. Who entitled. A steam tug attempting to render assistance to a ship exhibiting signals of distress may, in a case where such ship is afterward salved by means of other assistance, be entitled to salvage reward, even though her efforts have been practically unavailing. lb. . 51. By the improper navigation of a steam tug, B., a vessel at anchor, was sent adrift and placed in jeopardy. A steam tug, W., rendered assistance to the drifting vessel. Held, that the owners of the W. were entitled to re- cover salvage reward for the services rendered, notwithstanding that some of them were also owners of the vessel which occasioned the mischief. The Olengaher (Adm. & Eccl.), Ill, 486. 52. A steam vessel laden with a general cargo became disabled at sea in consequence of her machinery breaking down. Her cargo had been shipped under bills of lading which contained, among the excepted perils, " accidents SHIPS AND SHIPPING. 469 from machinery." Another steam vessel belonging to the same owners fell in with the disabled vessel and towed her into safety. Meld, that the owners of the vessel rendering the service were entitled to recover salvage remunera- tion against the cargo laden on board the disabled vessel, and that the master and crew of the vessel rendering the service were entitled to recover salvage remuneration against the disabled vessel, her freight and cargo. Tlis Miranda (Adm. & Eccl.), IV, 615. 53. A steam vessel incurred serious damage by a collision, and her master ordered her boats to be got out. Some of her crew, without leave from the master, got into one of the boats and rowed away. Tlie boat's crew were afterward picked up at sea and rescued from a position of danger by a smack. In a salvage suit instituted on behalf of the owners and crew of the smack against the steamship, held, that the plaintiffs were entjtled to recover, in such suit, salvage for^ the service they had rendered. The Cairo (Adm. & Eccl.), VIII, 660; 54. Two vessels came into collision on the high seas. One of the ves- sels (a bark) received damage, and all her crew, except her mate, escaped on board the other vessel. The mate of the bark remained on board her, and navigated her until he obtained assistance from a steam vessel. The steam vessel then took the bark in tow and brought her into port in safety, the mate still assisting in her navigation. Held, that in awarding salvage to the owners, master and crew of the steam vessel, the right of the mate of the damaged ship to claim salvage reward for his services should be taken into considera- tion, and that the mate, upon his claim being brought before the court, was entitled to rank as a salvor. The Le Jonet (Adm. & Eccl.), IV, 611. 55. — ■ — A ship fell in, on the high seas, in the winter season, with a brig in distress for want of sufficient hands to work her. The master of the ship sent two of his crew, who had volunteered to go on board the brig, and by their assistance the brig was navigated safely into a British port. In conse- quence of the absence of the two men, the ship was exposed to risk, and the remainder of her crew had to undergo extra labor. Held, that not only the two men who went on board the brig, but the master and owners of the ship and the rest of the crew of the ship, were entitled to salvage reward for the services rendered. The Charles (Adm. & Eccl.), Ill, 487. 56. The captain of a Queen's ship, lying at anchor in a foreign port, received intelligence that an English steamer was outside the port disabled, and in a position of great danger, and communicated with the master of a , screw steamer which was under charter to the Lords of the Admiralty as a transport, and was then coahng in the port. In consequence of this commu- nication the transport, after taking on board one officer and a party of petty officers and seamen from the Queen's ship, proceeded to the disabled vessel and succeeded in placing her in safety. As salvage remuneration for the ser- vices so rendered a sum of £1 ,000 was tendered and accepted in a cause of salvage instituted on behalf of the owners, master and crew of the transport, and the captain, officers and crew of the Queen's ship. On an application to apportion this sum, the court awarded £400 to the owners, master and crew of the transport, £400 to the captain of the Queen's ship and the party of petty 470 SHIPS AND SHIPPING. officers and seamen who went on board the transport, and £200 to the officer who accompanied them. The Nile (Adm. & Eccl.), XIV, 693. 57. Salvage and damage. A screw steamer fell in with a disabled bark in the English Channel, and, in answer to signals of distress, approached her to render assistance. In rendering salvage services to the bark damage was caused to that vessel by the negligent navigation of the screw steamer, the two vessels coming into collision on three occasions. To recover for the dam- ages sustained in these collisions, the owners of the bark promoted a cause of damage against the steamer, and subsequently an action for the recovery of salvage remuneration was brought by the owners of the steamer against the bark. On the two causes coming on to be heard together, the court held, that the owners of the bfirk were entitled to recover in the damage cause, and that the owners of th'e" steamer were entitled to recover in the salvage cause. fThe Butler and The Baltic (Adm. & Eccl.), VIII, 655. 58. Who not entitled. In a salvage suit promoted in respect of certain services whereby the defendant's vessel, which at the time such services were rendered was in neither actual nor imminent probable danger, had been safely towed into port, AeM.that such services must be regarded as towage, and not as salvage services. No tender of the amount thereof having been made such amount could not be recovered in a salvage suit. TurnbvM v. The Strath- naver (App. Cas.),-XV, 19. 59. A Dutch bark was riding at anchor off Deal, and waiting to pro- ceed down Channel, and a waterman who, though not a licensed pilot, was in the habit of piloting vessels, was taken on board her, under an arrangement whereby he was to receive 7s. a day, with £5 in addition, for navigating the ves- sel as pilot until she arrived off Beachy Head. The day after the waterman came on board, and while the' bark was still at anchor, a gale came on, and the tempestuous state of the weather caused the vessel to drive, and rendered it necessary to slip the chain, when, under the direction of the waterman, the vessel was taken through the Gull Stream and brought up in safety in Mar- gate Roads. In a salvage suit instituted on behalf of the waterman and other persons who had rendered services to the vessel, the court held, that the ser- vices rendered by the waterman were within the scope of his contract, and that he was not entitled to claim as a salvor. The ^olus (Adm. & Eccl.), V, 565. 60. Allowance for. A ship on a voyage from Melbourne to London fell in with a derelict brigantine 330 miles to the westward of the Lizard, in the month of February, and put an officer and three hands on board her, who, under circumstances of great difficulty and danger, and after much hardship, brought her in safety to Liverpool. In a salvage suit instituted on behalf of the own- ers, master and crew of the ship, the court, after directing expenses incurred by the salvors to be paid to them out of the proceeds of the salved property, awarded more than a moiety of the residue as salvage reward. Tli£ Basehe (Adm, & Eccl.), VII, 364. 61. Correction as to amount. Salvage services having been rendered to a ship laden with cargo, a salvage suit was instituted against ship, freight and cargo. Separate appearances were, entered on behalf of the owner of the ship SHIPS AND SHIPPING. SLANDER. 471 and the owner of the cargo. The owner of the cargo filed an affidavit of valua stating tlie value of the cargo, and the owner of the ship filed an affidavit of value stating the value of the ship and freight. At the hearing, the court, taking these values as accurate, hy its decree awarded to the salvors a certain sum as salvage. Some time afterward, the owner of the cargo discovered that he had, by mis- take, included in his valuation of the cargo the value of the freight, and that the freight was of more value than appeared by the affidavit of value filed on behalf of the owner of the ship, and he made application to the court to reduce the value of the cargo, and to reduce the amount it had previously decreed as salvage. On the mistake being proved, held, that the court had power to correct the mistake and to make the necessary alterations in the decree. The Armstrong (Adm. & Bccl.), XIV, 663. 62. Although the giuintum of remuneration to salvors is, to some extent, to be affijcted by the value of the property salved, it must not be raised to an amount altogether out of proportion to the services actually rendered. Where the court below had awarded an exceptional and excessive amount of remun- eration solely from regard to the value of the property salved, their Lordships, notwithstanding their, general rule of non-interference ftpon a question of mere discretion, reduced the said amount by two-fifths. The Amerique (Priv. C), XIII, 230. VIII. Average. 63. General. Plaintiff shipped bark on board defendants' general ship, under a bill of lading, from Santa Martha to London, by which average, if any, was to be adjusted according to British custom. When the ship was about to sail a fire broke out in the forehold, and a hole was cut in the side of the ship, and her fore compartment being thereby filled with water, the fire was extinguished. If this course had not been adopted the cargo on board would in all probability have been destroyed, and the ship seriously damaged. The plaintiff's bark was destroyed by the water poured into the ship. In an action for general average contribution in respect of the destruction of plain- tiff's bark, it was found, in addition to the above facts, that it is the practice of British average adjusters to treat a loss so caused as not a general average loss. Seld, that whether or not the loss was, according to the gennral law of England, the subject of general average contribution, plaintiff, by the terms of the bill of lading, had made the admitted practice of British average ad- justers part of the contract, and he was bound by it, even if different from British law . Stewart v. West India and Pacific Steamship Go. (Exch.), VI, 103 ; affirming S. C, IV, 229. See Admiralty ; Bottomry ; Bill op Lading ; Carrier ; Charter-party. SLANDER 1. What actionable. A statement false and malicious, but not in itself de- famatory, made by one person in regard to another, whereby that other may probably, under some circumstances, and at the hands of some persons, suffer damage, will not, even though damage- has resulted in fact, support an action for defamation. Miller v. Bmid (Com PI.), VIII, 434. 472 SPECIFIC PEEPOEMANCB. 2. A declaration alleged that the defendant falsely and maliciously spoke of the plaintiff, a working stone mason, " He was the ringleader of the nine-hours system," and " He has ruined the town by bringing about the niue- hours system," and " He has stopped several good jobs from being carried out by being the ringleader of the system at L.," whereby the plaintiff was pre- vented from obtaining employment in his trade at L. Meld, that the words not being in themselves defamatory, nor connected by averment or by implication with the plaintiff's trade, and the alleged damage not being the natural or reasonable consequence of the speaking of them, the action could not be sus- tained, lb. See Injunction ; Libel ; Witness. SLAVE SHIP— /Sse Extradition. SMUGGLING — See Customs. SODOMY— See Criminal Law. SOLDIERS — See Wills. SPECIFIC LEGACY— See Legacy; Willb. SPECIFIC PERFORMANCE. 1. Discretionary. The exercise of the jurisdiction of equity, as to enforcing specific performance of agreements, is not a matter of right in the party seek- ing relief, but of discretion in the court. Lama/re v. Dixon (H. of L.), VIII, 35. 2. Concurrent remedy. The court will not refuse to decree specific per- formance of an agreement, although the plaintiff may have a concurrent remedy in damages, or may have entered into a negotiation for a money com- pensation which has failed. Greene v. West Cheshire Railway (Eq. C), I, 546. 3. An agreement was entered into between a railway company and a land-owner, part of whose land had been, under another agreement, taken by the company, whereby, in consideration of the previous withdrawal by the land-owner of a petition to Parliament against the company's bill, the company agreed to construct and forever maintain at their expense a siding of speci- fied length alongside the line, upon land belonging to the land-owner, and to be provided by him for that purpose, for the use and to the reasonable satisfac- tion of the land-owner. Held, that this agreement was not incapable of being enforced by a court of equity. lb. 4. In what cases decreed. In a redemption suit against the mortgagee in possession of business premises, a comproiliise was agreed upon, under which the mortgagor was to pay a fixed sum on a certain day, and the mortgagee was to carry on the business in the meantime, and give up possession on pay- ment, and all proceedings in the suit were to be stayed. The mortgagor failed to pay the money at the time appointed. Held, that the agreement for com- promise could not be enforced on motion in the suit, but a fresh bill must be filed for specific performance. Pryer v. Oribble (Chan. App.), XIV, 776. SPECIFIC PEKFOEMANCE. 473 5 Semble, 11 an agreement for compromise relates simply to the prose- cution of the suit, the court will enforce its performance on" motion in the suit. lb. 6. Agreement for lease. A., a tenant in possession, filed a bill agafnst B. for the specific performance of a parol agreement for a lease of thirty years. A. had contracted to 'sub-let, and his sub-lessee had expended money in alterations and repairs with the knowledge and approval of -B. Held, that the outlay by the sub-lessee was as much a part performance of the agreement as if made by A., who was, therefore, entitled to specific performance. Williams V. Beans (Eq. C), XIII, 490. 7. to mortgage. The court will decree specific performance of an agreement to execute a mortgage with an immediate power of sale. Hermann V. Hodges (Eq. C), VI, 615. 8. to underlease. Where a builder contracted to build a house and take a lease thereof, and before he had received his lease agreed to underlet to another and gave him possession, but afterward made an equitable mort- gage to a third party who had no notice of the rights of the person entitled to such underlease, held, that specific performance of the contract to underlet would be granted, notwithstanding the equitable mortgagee had after notice of such rights taken a legal mortgage. Mumford v. Stohwasaer (Eq. C), XI, 533. 9. for valuation. Where an agreement has been entered into for the sale of a house at a fixed price, and of the fixtures and furniture therein at a valuation by a person named by both parties, and he undertakes the valuation, but is refused permission by the vendor to enter the premises for that purpose, the court will make a mandatory order to compel the vendor to allow the entry to enable the valuation to proceed. Smith v. Peters (Eq. C), XV, 463. 10. Execution of mortgage. Where the defendant had agreed to execute to the plaintifl^ a mortgage of certain leasehold premises in the usual form, containing an absolute power of sale, in consideration of money due, and had, when requested to do so, failed to execute such mortgage, the court made a decree for specific performance. Ashtctn v. OorHgan (Eq. C), I, 565. 11. Sale of land, doubt as to title removed. Where the decision of the court removes the doubt as to ,title, specific performance will be enforced against the purchaser. Bell v. Holtby (Eq. C), V, 793. 12. Contract for transfer repudiated. The plaintiffs agreed to purchase an estate from the L. Society, and to pay a deposit on the signing of the contract. Before it had been signed, the plaintiffs verbally agreed with B. to make it over to him on certain terms. In order to enable B. to deal with the L. Society, the plaintiffs signed and gave to him a memorandum, making over the contract to him in consideration of his paying to the L. Society the deposit, and engag- ing to pay a certain sum to the plaintiffs; the other terms of the bargain be- tween the plaintiffs and B., which were in favor of the plaintiffs, being at B.'s request omitted from' the memorandum. On the same day the contract between the plaintiffs and the L. Society was signed, and the part signed by the L. Society was given to B., who paid the deposit. B. afterward repudiated all the stipulations in favor of the plaintiffs which had not been inserted in the 60 474 SPECIFIC PERFOKMANCB. memorandum. The plaintifiFs then filed their bill against B and the L. So. ciety, asking to have the memorandum between B. and the plaintiffs canceled, and for a conveyance from the society on payment of what was due to them. Held, that a demurrer by B. was not sustainable on the merits, for that the memorandum was only ancillary to the verbal agreement between the plain- tiffs and B., and any use of it by B. for a purpose inconsistent with that agree- . ment was fraudulent. Jervis v. Berridge (Chan. App.), V, 581. 13. Held, farther, that if the plaintiffs could have maintained a bill for specific performance of the parol agreement b'etween them and B. on the ground that it had been in part performed, as to which qumre, they were not bound to do so ; but that, as B. had repudiated that agreement, they were entitled to fall back on their original rights under the agreement with the L. Society. lb. 14. Held, farther, that the bill was not demurrable for want of an offer to repay to B. what he had paid to the society. lb. 15. Sale of ship. A ship-owner of Hamburg made, at Hamburg, an agree- ment with a domiciled Englishman for the sale to the Englishman of a Ham- burg ship whenever she might return from the voyage on which she then was. The ship returned and was hy the owner ordered to proceed to Sunderland. The master of the ship, who was authorized by the ship-owner to act as his agent in the sale, refused to deliver the ship except on certain terms. The purchaser filed a bill against the owner and the master for specific perform- ance. He obtained leave to substitute service on the master for the owner, and moved for an injunction to restrain the defendants from removing the ship out of the j urisdiction. Held, that substituted service on the master was effectual and proper; and that the court had jurisdiction to restrain the defend- ants from removing the ship, and inj unction granted. Hart v. Herwig (Chan. App.), Vn, 434. 16. Agreement to arbitrate no bar. By an agreement dated the 26th of February, 1866, and afterward confirmed by act of Parliament, the plaintiff company agreed to construct a line of railway between certain termini, and the defendant company agreed to work it, and during the continuance of the agreement to develop and accommodate the local and through traffic thereon, and to carry over it certain traffic particularly specified ; and it was agreed that all differences under the agreement should be determined by a standing arbitrator to be named by the companies in January in each year, or failing Buch nomination by the board of trade on the application of either company in February in each year ; and that all such clauses of the acts of Parliament for the time being in force in regard to railways as should relate to the settlement of disputes by arbitration should, so far as applicable, and except as therein otherwise provided, be deemed incorporated with the agreement, and that the agreement should continue for 999 years from the date thereof. The plaintiff company constructed the line, and the defendant company entered into pos- session thereof, but carried a large proportion of traffic which ought to have passed over the plaintiffs' line by other lines belonging to' the defendant com- pany, and a bill was filed to restrain the defendant company from so doing. Held, on demurrer, first, that inasmuch as no standing arbitrator had been ap- pointed in accordance with the agreement, the jurisdiction of the court was SPECIFIC PEEFORMANCE. 475 not ousted ; secondly, that tlie case was one in wliich the court could interfere by injunction. Wolverhampton, etc., By. Go. v. London, etc.. My. Co. (Eq. C), VI, 793. n. A land-owner, through whose land a railway company proposed to pass, agreed in May, 1864, to withdraw his opposition to their bill on the terms that the company would vary the course of their line and make certain bridges, works, and approaches. The company gave a notice to treat, and on the 20th of March, 1867, they went into possession. On the 27th of May a. further agreement was come to that the company should pay £3,250 for purchase- money and compensation, and should construct the bridges asked according to an agreed plan. The company constructed the line as agreed upon, but did not complete the works, nor pay the purchase-money, nor the interest, though completion of the works was demanded in July, 1868, and payment of interest in December, 1868. On the 6th of February, 1869, a substituted agreement was made between the land-owner and the company, whereby it was agreed that an estimate should be made by the company's engineer of the cost of completing the road, and submitted to A., the laud-owner's agent, " for ap- proval ; in case of difference the amount to be determined by B.;" the amount, " when agreed or determined," to be paid to the land-owner, " in discharge of all obligations " as to the road, and " the purchase to be completed forthwith." In December, 1871, A. died ; and In May, 1873, the company, for the first time, sent in an estimate for the cost of completing the road. The purchase had not been completed, and neither the purchase-money nor any interest had been paid. B. was living. Held, that the submission of the estimate to A. for ap- proval was of the essence of the agreement of the 6th of February, 1869 ; and that, inasmuch as by hia death the agreement was incapable of being per- formed in the manner and form therein specified, the court could not enforce performance of it. Firth v. Midland By. Co. (Eq. C), XIII, 651. 18. Specific performance decreed of the works according to the agree- ments of 1864 and 1867, and the company was ordered to pay interest on the purchase-money from the date of their taking possession ; but no inquiry was directed as to damages. lb. 19. Delay iirhen a bar. Where a suit is instituted for specific performance of a contract, and the defense set up is, that the contract was made in con- sideration of certain promises which the plaintiff had not fulfilled, a delay,' to defeat that defense, must be such as amounts to an acquiescence in the non-fulfillment of the alleged promises. Lamare v. Dixon, (H. of L.), VIII, 35. 20. Where the subject of the contract was an agreement to take the lease of a house, and the proposed tenant went into possession at once, and occupied for two years, but, while continuing in occupation, from time to time called on the landlord to fulfill promises which the tenant alleged to have been the inducement for the contract, and paid rent, but always paid it under pro- test. Meld, that these circumstances did not amount to such acquiescence as to prevent the tenant from ultimately refusing to perform the contract, but that the payments were to be treated as merely made in respect of the actual use and occupation and in no other character. lb. 21. At the expiration in July, 1857, of a lease under which by assign- 476 SPECIFIC PEEFORMANCB. ment he was in possession of property, B. signed an agreement to accept from A. a new lease for thirty-one years, at the same rent as was reserved by the old lease, and payment of £600 on the day fixed for completion (1st August, 1857), with interest if the lease should not be completed on the day fixed. A draft lease was sent to B. for his approval but was not returned, and no steps were taken by A. to press for completion. B. remained in possession and paid rent, but no payment of the £600 or interest was ever made or demanded. In 1871 A. died. On bill by her legal personal representative, held, that as B.'s possession and payment of rent must be referred to the new agreement, and not to a holding over after the expiration of the former lease, the lapse of time did not operate as a bar to specific performance, which was accordingly decreed, with interest on the £600 from the 1st of August, 1857. Shepheard V. Walker (Eq. C), XV, 530. 22. Mistake of lavr, when defeats. The court will not refuse to decree the specific performance of an agreement on the ground that one of the contract- ing parties has mistaken its legal effect. Powell v. Smith (Eq. C), III, 654. 23. Accordingly, where a lessor's agent had contracted to grant a lease for seven or fourteen years, which the lessor understood to mean a lease deter- minable at the lessor's option, and alleged that the agent had acted witTiout authority, Jield, that the lessee was entitled to have the agreement specific- ally performed, and to have a lease for fourteen years, determinable at his own option at the end of seven years. lb. 24. Held, also, that the lessee having been put into possession of the farm under the agreement, the lessor was precluded from disputing the agent's authority. lb. 25. When not decreed. Where the vendors of land, in a lease acknowl- edging the receipt of an offer by intending purchasers, wrote as follows : " Which offer we accept, and now hand you two copies of conditions of sale," and therewith inclosed a formal agreement with conditions of a special character, /t«H, that the acceptance was only conditional, and that there was no final agreement of which specific performance could be enforced as against the purchasers. Croasley v. Maycock (Eq. C), IX, 737. 26. Plaintiff, the owner of six leasehold houses, agreed in writing to let one of them, numbered 737, to a tradesman, the agreement saying nothing about a restrictive covenant. On the same day he also agreed to let another of the houses, numbered 735, to a grocer, and as he (plaintiff) alleged, agreed with him that the business of a grocer should not be carried on in any of the other five houses. Afterward he contracted to sell the house No. 737 and a third house, numbered 739, to G. T., also a grocer, and the agreement, which was in writing and dated the 6th of July, 1870, contained nothing about a restrictive covenant, but an underlease was prepared and engrossed which did contain a covenant that the premises should not be used for a grocer's busi ness. An appointment was made for the execution of the underlease and counterpart on a certain day; but on the previous evening, G. T. died sud- denly, intestate. It was stated, but on the plaintiff's evidence only, that after the written agreement of the 6th of July, and before G. T.'s. death, Q-. T. verb- ally agreed to the insertion of the restriction, and there was other evidence that he was prepared to execute a counterpart of the engrossment. It having SPECIFIC PERFORMANCE. 477 been shown that the insertion of such a restriction would considerably dimin- ish the value of the property, held, that the defendant, the administrator of the intestate, could not be compelled to execute a counterpart of a lease con- taining such a restriction. SneUing v. Tlwmaa (Bq. C), VII, 839. 27. The written agreement of the 6th of July stipulated that the prop- erty should be bought "subject to the existing tenancies." The plaintiff alleged that on the 6t.h of July the lessee of the house No. 737 was under an agreement to consent to a restrictive covenant, and in proof of this the counter- part of a lease, bearing date the day before the agreement of the 6th of July, was produced, containing such a covenant. It having been shown that the lease was antedated and was not in fact executed till after the 6th of July, 1870, held, that the administrator was not by this clause bound to execute the counterpart of a lease containing the restriction. lb. 28 Circumstances under which acceptance of a verbal alteration in a written agreement will not be inferred. lb. 29. Continuous act. A railway company having refused to allow the plaintiffs to run engines • and carriages over part of their line under the powers of the Railway Clauses Act, 1845, s. 92, the plaintiffs filed their bill for an injunction to restrain the company from preventing their exercise of the righti Held, that, inasmuch as the plaintiffs conldnotrun over the line unless the points and signals on the line were properly worked by the railway com- pany, this court could not grant relief, as it does not order the performance of a continuous act like working signals, the doing of which requires continuous attention, and cannot be seen to by the court. Powell, etc., Coal Go. v. Taff Vale By. Go. (Chan. App.), VIII, 888. 30. Covenant with exception. A railway company covenanted with the builders of refreshment rooms at a station on the line of railway that all trains which should pass the station carrying passengers, not being goods trains, or trains to be sent express, or for special purposes, and except trains not under the control of the company, should stop for a reasonable period of about ten minutes. The Postmaster-General, proceeding under an act of Parliament which was passed before the covenant was made, required the company to run a train carrying mails at a certain hour, and stopping at the station for five minutes only. Held, that such a train was a traJh " not under the control of the company " within the meaning of the exception, and the railway company could not be compelled to stop it for ten minutes at that station. PMUips v. Oreat Western Mail-way (Chan. App.), II, 316. 31. Defect of title. A sale was made by the Court of Chancery under conditions which precluded the purchaser from objecting to the title prior to the document chosen as root of title, and made recitals in deeds more than twenty years old conclusive. A recital covered by this condition was so framed as to conceal a defect of title prior to the date fixed for commencement of title. The purchaser inquired into the prior title, and refused to complete on the ground that the prior title was bad ; and -the court being of opinion that such objection was well founded, held, that, the sale being by the court, the purchaser was not precluded by the conditions from raising the objection, and ought to be discharged from his purchase. Whether a similar decision 478 SPECIFIC PERFORMANCE. would be given in the case of an ordinary sale, qiLmre ? Else v. Else (Eq. C), I, 645. 32. On a petition presented under the Leases and Sales of Settled Estates Act, an order was made for the sale of an estate to which A. B., a per- son of unsound mind, but not so found by inquisition, was entitled for life in re mainder. A. B.'s brother had been previously appointed, under the 36th sec- tion of the act, the guardian of A. B. and of certain infants, for the purpose of consenting on their behalves to the application, and he was to be at liberty on behalf of the infants to consent . The order for the sale was made upon hear- ing counsel for A. B. by his guardian, and the guardian by his counsel con- senting. The purchaser objected to the title on the ground that only a com- mittee properly appointed could consent on behalf of A. B. Sdd, that the objection was well founded ; and a summons, taken out by the vendors to com- pel the payment of the balance of the purchase-money, interest, and the costs, dismissed. Matter of Clough's Estate (Eq. C), V, 850. 33. False suggestion by vendor. Upon the sale of an estate one of the conditions was that the title to the beneficial ownership should commence with the will of A. C, and the purchaser must assume that A. C. was at his death beneficially entitled to the property in fee. simple free from incumbrances. A. C. had contracted before his death for the purchase of the property, but it was not till many years after his death that the title was made out, the property conveyed, and the purchase-money paid. Held, that the purchaser was not bound by the condition of sale, and, the vendor declining an open reference as ■ to title, his bill for specific performance was dismissed with costs. Harnett v. Baker (S.Qi. C), XIII, 598. 34. Memorandum of sale insufEcient. Where the memorandum of sale of land does not name or describe the vendor as required by the statute of frauds, but merely calls him " the vendor," specific performance will not be decreed in favor of the purchaser. Potter v. Duffield (Eq. C), IX, 664. 36. Misdescription. The conditions of sale of a, public house stated that it was in the occupation of a tenant. A brewer, intending to use the public house for the sale of his beer, agreed to buy it. He afterward learned that it was under lease to another brewer for a term of which eight years were unex- pired. .HeM,*that the purchaser was not bound to ascertain from the tenant the terms of his tenancy ; and that in such a case the vendor could not enforce specific- performance. Oaballero v. fiera<^(Chan.App.), IX, 543. 36. Non-performanoe by plaintiff. The law implies that a person who takes possession of premises before the agreed works to render them fit for occupa^ tion are at an end, does so without prejudice to his rights under the agree- ment. Lamare v. Dixon (H. of L.), VIII, 35. 37. Where the owner of land, being about to build on it, agreed with a wine merchant to put vaults under his building, and to make them dry and suitable for wine vaults, and rent them to him, and the latter took possession of the vaults before they had been made dry and continued to occupy them, paying rent under protest, held, that the taking possession of the vaults and the payment of the rent, which payment must be attributed to the actual use and occupation of the premises, did not prevent B. from setting up as a de- SPECIFIC PERPORMANOE. 479 fense the non-performance of the promise which had been the inducement to the contract. lb. , 38. Payment of money. The agent of a railway company made a verbal agreement with the contractor for the line, that if he would build on land of the company certain cottages more substantially than would be required for his own purposes, and would leave them for the use of the company, then the company would pay him £5,000 pounds. The cottages were accordingly built, and when the railway was completed the contractor left them on the land, and the agent of the company made an agreement with the contractor that he should be paid £500 a year for the cottages by way of rent, with an option to the company to purchase them for £5,000. This agreement was confirmed by a resolution of the board of directors. The company paid the £500 a year for some years, and then refused to pay. Held, that the claim of the contractor being simply for payment of money could not be enforced in the Court of Chancery, and that, though the contractor was unable to sue at law because the agreement was not under seal, he did not thereby obtain an equity to enforce a claim for nioney. Grampton v. Varna Railway Co. (Chan. App.), Ill, 509. 39. Held, also, that inasmuch as the contractor did not act in ignorance of the rights of the company, he could not claim compensation for having built on the land of the company. lb. 40. Void reservation. Contract for the sale of an estate, vendor reserving " the necessary land for making a railway " through the estate to P. In a suit by the purchaser for specific performance, held, that the reservation was void for uncertainty, and that as the intention of the parties could not be carried out, the contract could not be enforced. Pearce v. Watts (Eq. C), XV, 457. 41 Held, also, that, though Jtbe defense was raised by answer and not by demurrer, the bill must be dismissed with costs. lb. 42. The decree. A decree for specific performance of a contract cannot be accompanied by directing an inquiry whether a matter which was a considera- tion for entering into the contract has been, or can be, properly performed. Lamn/re v. Dixon (H. of L.), VIII, 35. 43. A', was the owner of some land, on which he was about to erect buildings. B. wished to have cellars there for wine vaults. A promised that they should be made dry, but would not introduce that promise into the written agreement. B., however, confiding in the promise, signed the agree- ment by which he undertook to accept from A. a lease of the vaults for a cer- tain term and at a certain rent. B. was to pay down £100, and was to pay another £100 on the execution of the lease. B. paid, the first £100, and, for his own convenience, before the day fixed, took possession of the vaults, and placed therein a large quantity of wine, but soon complained that the vaults had not been made dry. These complaints he constantly renewed, and every time he paid the rent paid it under protest ; and, finally, after more than two years' actual occupation of the cellars, refused to sign the lease on the ground that the cellars had not been made fit for his occupation, and he did not pay the second sum of £100, but removed his stock of wines to another place. On a bill for specific performance, the court below granted a decree against B., but 480 SPECIFIC PEEFOKMANCE. accompanied It with a direction that there should be an inquiry whether a cer- tain thing suggested by B. in the course of the long correspondence between the parties, but neglected by A., should not be done. Held, that the decree in this form was erroneous. lb. 44. When granted as to part. C. agreed to let to W. several plots of ground for ninety-nine years, at one given rent, to be apportioned as there- inafter mentioned. W. agreed to build on plot _P twenty houses, on plot B eight, on plot G ten, and on plot Y five ; and it was agreed that a separate lease of plot B, at a given rent, should be granted as soon as four of the houses on that plot and two of the ten houses on plot G were covered in, and that a separate lease of plot G should be granted as soon as five of the ten houses on that plot were covered in. W. mortgaged this contract to the plain- tiff, and afterward became insolvent. The plaintiff covered in the requisite number of houses on plots B and G, and applied for leases of them, denying at the same time his liability to take upon himself the other parts of the agreement, upon the performance of which the granting of leases of plots B and G did not by the terms of the contract depend. Held, that the contract was separable, and as by its terms the right to have leases of plots B and G depended only on conditions which had been fulfilled, the plaintiff, as assignee of W., was entitled to have leases of those plots granted to him, without assuming W.'s obligations under the entire contract. Willeinson v. Clements (Chan. App.), IV, 7a3. 45. Abatement for defect of title. Vendors agreed to sell the entirety of cer- tain freehold property for the sum of £6,000, and to make out a good marketa- ble title. The purchaser, in consequence of delays on the part of the vendors, filed a bill for specific performance of the agreement. It was subsequently discovered that the vendors were entitled to only a moiety of the property. Held, that the purchaser was entitled to a decree for specific performance of the agreement by the vendors of their moiety, with an abatement of one-half of the purchase-money. Hooper v. Smart ; Bailey v. Piper (Eq. C), XI, 608. 46. Compensation for misrepresentation. In suits as to the specific perform- ance of a contract to purchase large colliery works, the purchasers alleged as a defense, misrepresentation by the vendors as to the value. As to several allegations the purchasers were held to have failed, and specific performance was decreed, but with compensation to the purchasers in respect of an alleged misrepresentation as to the amount of stores consumed in the collieries, and a consequent excess in the statement of income. An inquiry was directed as to such compensation, and it was found that there was a large excess in the state- ment of income beyond its true amount. Held, that the purchasers were enti- tled to a deduction from their purchase-money bearing the same proportion to the whole purchase-money as the excess bore to the income stated. Powell v. Elliot (Chan. App.), XIV, 708. 47. Held, that as no direction as to costs was ' given by the original decree in the suits, and that as the purchasers were held to be entitled to a considerable abatement, the vendors must pay the costs of the suits, and could not ou the hearing on further consideration be relieved from payment of any part of the costs, on account of the failure of the purchasers as to parts of their case oa the original hearing. lb. SPECIFIC PEKPOEMANCE. STATUTES. 481 • 48. Relief in damages. A railway company agreed, for valuable considera- tion, with a land-owner to erect, construct and fit up a station on certain lands, which they had bought from him. The agreement contained no further description of the station, nor any stipulations as to the use of it. The com- pany having refused to erect a station in the specified place, and substituted one at a distance of two miles, held, that inasmuch as the court could not pre- scribe the degree of convenience and accommodation to be given at such station, so as to do complete justice, the case was one in which justice could be better done by giving damages than by a decree for specific performance. Wilson V. Northampton, etc.. By. Co. (Ghan. App.), VIII, 866. 49. — '- — Though the Supreme Court of Gibraltar may be bound, in admin- istering law, to follow the principles which govern English courts of law, and in administering equity, to follow the principles which govern English courts of equity, yet, where a suit for specific performance is commenced before it, and it is found that the plaintiff ought not to have taken proceedings in equity, but at law, for damages in respect of a breach of contract, the court may, amending the pleadings if necessary, continue the case as if the plaintiff had brought an action for damages. La/rios v. Ourety (Priv. C), VIII, 368. 50. A Gibraltar firm entered into a contract with A. B., of Algeciraa, in Spain, in consideration of certain property having been transferred to them, to open a credit in his favor to the extent of $9,400, and to honor his drafts' to that amount. After advancing him some sums of money, they refused to accept a bill for $1,000 drawn upon them by him, and subsequently refused to make any further advances. Proceedings in equity were thereupon com- menced by him in the Supreme Court of Gibraltar to enforce a specific per- formance of the contract, and to obtain an award of damages under the 21 & 33 Vict., c. 37, for the non-performance of the contract. Held, that a court of equity will not decree the specific performance of a mere agreement to advance money. Moreover, that being so, that it has no j urisdiction to award damages. However, the court of Gibraltar might have proceeded with the case as if it had been commenced as an action at law. lb. 51. On its being contended that the cause of action would be merely the breach of an agreement to pay a sum of money, and that accordingly nothing could be recovered by way of damage but the principal money con- tracted to be paid and interest, it was held, that, inasmuch as the contract was a special one, whereby the firm became bound to honor, out of moneys agreed to be placed by them to his credit, the drafts of A. B., up to a certain amount, he was entitled to general and substantial damages for the breach of it. lb. Bee Vendor ajstd Phechasbb. STATUTES. 1. Construction, in general. Though the preamble of one act may appear to be directed against a particular evil, and though another act may be passed to aid its application, the enactments of the second act are not necessarily to be confined to the special purpose which seemed to be the particular object that the first had in view. Its own words must be considered as explaining and defining its objects and its means. Copland v. Dames (H. of L.), II, 38. 2.' Although the Bankers' Act (33 Geo. 3, c. 14) recites the previous act relating principally to banks of issue (8 Geo. 1, c. 14), and appears to have 61 483 STATUTES. been enacted in aid thereof, yet it in express terms relates to all bankers, and cannot be confined to banks of issue alone. lb. 3. Where it becomes necessary to seek the meaning of a term occur- ring in a statute the true rule of construction is not to limit the latitude of departure so as to adhere to the nearest possible approximation to the ordinary meaning of the term, or to the sense in which it may have been used before, but to look to the purpose of the enactment, the mischief to be prevented, and the remedy which the Legislature intended to apply. Begina v. AUen (C. C. Res.), 11, 243. 4. Inflicting penalty. Where a statute inflicts a penalty for not doing an act provided for, the penalty enacted implies tljat there is a legal compulsion to do the act in question, and this principle is not affected by the fact that the penalty has a particular destination. Bedpath v. Allan (Priv. C), IV, 176. 5. The Canadian Statute, 37 & 28 Vict. , c. 13, entitled " An act to amend the laws respecting the navigation of Canadian waters," enacts, by sec. 14, that " No owner or master of any ship shall be answerable to any person what- ever for any loss or damage occasioned by the fault or incapacity of any quali- fied pilot acting in charge of such ship within any place where the employment of such pilot is compulsory bylaw ;" and the Canadian Statute, 27 & 28 Vict., c. 58, s. 9, enacts " that the mastfer or person in charge of each vessel exceed- ing 125 tons, coming from a port out of the Province of Quebec, and leaving the port of Quebec for Montreal, shall take on board a branch pilot, for and above the harbor of Quebec, to conduct such vessel under a penalty equal in amount to the pilotage of the vessel, which penalty shall go to the decayed pilot fund." Held, on appeal, affirming the judgment of the Vice-Admiralty Court of Lower Canada, in a cause of damage by collision, that these statutes are to be read and construed together as being in pari materia, constituting a compulsory pilotage, and exonerating the owner of a, vessel having such pilot on board from liability for damage inflicted on another vessel. lb. 6. Priority of paj^ment. A Turnpike Act, 4 Vict., c. 35, after reciting that the principal sum borrowed on the credit of the tolls, under former acts, still remained unpaid, together with arrears of interest thereon, and that such sums cannot be paid, nor the interest thereon discharged, nor the road kept in repair, without further powers, by s. 18, enacted that all moneys received by the trustees " shall be applied in the first place in paying and discharging any interest which may from time to time be owing in respect of any money bor- rowed on the credit of the tolls ; secondly, in maintaining and keeping the roads in repair ; and thirdly, in reducing and paying off the principal sums borrowed." On an application under 4 & 5 Vict., c. 59, for an order for con- tribution from the highway rates, Jteld, that the act did not authorize the pay- ment of arrears of interest before repairing the road. Q0AIN, J., doubting. Trustees of Market Harborough, etc. , v. Kettering Highway Board (Q. B.), V,'351 . 7. Unjust weights. By s. 3 of 23 & 33 Vict., c. 56, it shall be lawful for every inspector of weights and measures, at all reasonable times, to inspect all beams, scales, and balances, and weights and measures in the possession of any person selling, oflFering, or exposing for sale any goods on any ground or in any public streets ; * * * and if, upon such inspection, any such beams, scales, or balances, or weights and measures shall be found light or unjust, or STATUTES. STIPULATION. 483 otherwise contrary to the provisions of this act . and 5 & 6 Wm. 4, c. 63, or if any fraud be willfully committed in the using thereof, the same shall V>e liable to be seized and forfeited, and the person using or having the same subject to a penalty. The appellant had in his possession a spring balance, which, on inspection, was found to be incorrect and unjust, inasmuch as it gave seven- teen ounces to the pound weight avoirdupois, being one ounce against the seller, and he was convicted on the ground that the balance could have been used for the purpose of buying as well as selling. Held, that the above sec- tion was intended to protect the public against persons selling, and did not apply to the case of a seller using a balance unjust to himself, and that, there- fore, the 'conviction was wrong. Brooke v. Shadgaie (Q. B.), VI, 100. 8. Repeal, effect of. A single woman made application on the 33d of May, 1873, under 7 & 8 Vict., c. 101, ss. 3 and 3, for a summons in bastardy against J. K. The child was born on the 36th of July. The Bastardy Laws Amend- ment Act, 1873, passed on the 10th of August, which repealed ss. 8 and 3 of 7 & 8 Vict., c. 101, and itself applies only to a child born after the 10th of August. On the 3d of September the summons was issued ; on the 11th <3f September J. K. appeared to the summons, and an order was made adjudging him to be the putative father, and ordering him to pay three shillings a week for its maintenance from the birth till it should attain the age of thirteen years. On the 34th of April, 1873, the Bastardy Laws Amendment Act, 1873, was passed, and by s. 8 all orders made (before the passing of this act upon the father of a bastard child born before the 10th of August, 1873, for any payment in re- spect of such child, which would have been valid if the act of 1873 had not passed, shall be and shall be deemed to have been valid to all intents. Held, that the above order must be quashed, for that it was not made valid by s. 8, as it was for three shillings a week, whereas 7 & 8 Vict., c. 101, s. j3, only au- thorizes an order for 3s. Qd., and the order would, therefore, not have been valid if the act of 1873 had not passed. Megina v. Kay (Q. B.), VI, 86. See CurMiNAi, Law; Cokporations. STATUTE OF FRAUDS — See Frauds, Statute of. STATUTE OF LIMITATIONS — >S«e Limitations, Statute of. STAY — See Phactice. STIPULATION. How euforced. A stipulation in a suit for a compromise, relating simply to the prosecution of the suit, might be enforced by the court by an order in the suit ; but one which involves a great number of details, such as the payment of a sum of money by the defendant, the carrying on of business and payment of expenses by him, etc., can only be enforced by bill for specific performance. Pryer v. Gfribble (Chan. App.), XIV, 776. STOCK — See Bbokeb ; Public Company ; W^ill. STOCKHOLDERS— 5e« Public Company, 484 SUCOBSSIOlyr DUTY. SUNDAY. STOPPAGfB IN TRANSITU — ;86e Sale. STREET — See Highway. SUBROGATION — /See Surety. SUBSCRIBING WITNESS — &« Will. SUCCESSION DUTY. i. As affected by domicile. By a marriage settlement executed iu England the husband assigned to trustees (all domiciled and resident iu England) an English policy of assurance, effected on his own life, for £3,000, payable at the expiration of six months after his death, and a sum of £1,047 3«. M. consols, and covenanted to pay to the trustees, within three years, a sum of £1,000 ; and it was declared that the policy moneys and the £1,000 should be held upon trusts for investment and payment of the income to the wife for life, and then to the husband for life, and then for division among the children of the marriage. The husband died within three years, having been, at the time of his marriage, and thenceforth up to the time of his death, domiciled in N ew South Wales. The wife survived only three months, and left one child, the plaintiff, who was also domiciled abroad. At the time of the wife's death neither the policy moneys nor the £1,000 covenanted to be paid to the trustees of the settlement had been paid to them. Held, that succession duty was pay- able by the plaintiff on the funds to which he became entitled under the settlement, hyall v. Lyall (Eq. C), V, 673. 2. By his will the husband appointed trustees and executors in New South Wales to collect his residuary estate (which •was all locally situate iu that country) and transmit the same to trustees and executors in England, who were to invest the funds so transmitted in government funds or real securities, and pay the income to his wife for her life, and after her death to divide the same among the children. At the time of the wife's death no part of the residuary estate had reached the hands of the English trustees, but large remittances were afterward made to them. Meld, that no succession duty was payable by the plaintiff on the funds to which he became entitled under the will. lb. SUNDAY. Keeping open place of public entertainment. The defendants, a company incorporated by an act of Parliament, are the owners of the Brighton Aqua- rium, a building which consists of chambers below the level of the ground, and a terrace above. The chief part is used as an aquarium, filled with glass tanks for the exhibition of marine fish and animals. There is also a reading room with newspapers, and a restaurant and dining hall and conservatories. The whole is open to the public on Sunday on the payment of Gd. each person. A band plays sacred music on the evenings of Sunday, and programmes are issued, stating what music the band will play, and at what time the fish will be fed. An action having been brought against the defendants to recover a penalty under 21 Geo. 3, c. 49, s. 1, for keeping open a place of entertainment and amusement on the Lord's day or Sunday, held, that .the aquariunl, under TAXATION. TENANTS IN COMMON. 485 the above circumstances, was a place of entertainment and amusement within the statute. Terry v. Brighton Aquarium Co. (Q. B.), XIII, 353. See Criminal Law. SUPPORT — See Covenant ; Mines ; Negligbncb ; Patipers. SURETY— See Carrier; Principal and Surety. SURVIVOR — See Executors, etc.; Marriage Settlement; Partner- ship ; Will. TAXATION. Ratability of moorings in Thames. The conservators of the river Thames, who are by statute owners of the river bed, gave permission to the plaintiflfe to lay down certain moorings in the river bed, and place a derrick hulk at them, the work to be done to the. satisfaction of the conservators and under the inspection of the harbor master, and to remain on certain conditions being agreed to and observed by the plaintiffs. These conditions provided that a certain rent should be paid for the moorings, and specified the purposes for, and the manner in which the hulk was to be used, and that in all other respects it was to be worked to the satisfaction of the conservators, under the inspection of the harbor master ; and the permission was expressed to be granted on the full understanding, on the part of the plaintiffs, that if at any time thereafter it should be found inexpedient to permit the moorings for the derrick hulk to remain in that or any other part of the river, the conservators would, under the powers vested in them by the 91st section of the Thames Conservancy Act, cause the same to be removed. That section provides that no mooring chains shall be put down in the river without the permission of the conservators, and that the conservators may at any time, by giving a week's notice in writing, require such mooring chains to be removed ; and if not removed accordingly, may themselves remove them. In pursuance of the permission so given, the plaintiffs procured moorings to be laid down, paying for the necessary labor and materials, and placed a derrick hulk at such moorings, which had continued there for some years, and was used by the plaintiffs for the purposes of unloading and reloading coal in the course of their business as coal merchants. The moorings so laid down consisted of anchors and stones, which were laid down in deep holes, dug in the bed of the river, and covered in with large quantities of ballast. The moorings so formed were of a permanent character, and it would have been impossible for the derrick using them to weigh them in the ordinary way in which ships weigh anchor. Held, that the plaintiffs were the occupiers of the moorings, and were liable to be rated in respect of such occupation. Gwy v. Bristow (C. P. Div.), XV, 337. See Landlord and Tenant; Municipal Corporations. TENANTS IN COMMON. 1. Remedies between. W^here two persons are tenants in common of a field, the merely putting by one of them a, look upon the gate (not shown to be locked) will not constitute an ouster so as to enable the co-tenant in com- 486 TENANTS IN COMMON. TENANT FOR LIFE. mou to maintain trespass. There must, for such a purpose, be other circum- stances attending the act. Jacobs v. Seward (H. of L.), II, 496. 2. In order to enable one tenant in common to maintain trover against another, there must not merely be a carrying away of the property, but such a carrying away of it as will disable the party complaining from having the lawful use or benefit of the property, or there must be the destruction of it. lb. 3 A. and B. were, without the knowledge of C, tenants in common of lands. 0. had held them under A. In March, 1867, C. received from B. notice to quit at the end of six months. He did not quit, but afterward made an agreement with A.'s agent for the renewal of the tenancy, continued the cultivation of the land, and paid the rent under the new lease. While C. was still in possession B. demised the premises to D., as from March, 1868, for six months. In June, 1868, D. entered the land, cut the grass, put a lock on the gate, and carried away the grasa* and stacked it as hay. Held (assuming C. and D. to be tenants in common), that these circumstances did not amount to an ouster, so as to enable C. to maintain trespass against his co-tenant in com- mon, D. , nor to a destruction of the common property so as to enable C. to maintain trover for the grass — but that his only remedy was to be sought under the 4 Anne, c. 16, s. 37, by a proceeding for an account. lb. 4. The court below refused to allow an amendment of the declaration by converting the action into one for an account under that statute. Held, that the refusal was right. lb. 5. Right of one to work mine. It is not destructive waste for a tenant in common of a coal mine to get, or to license another to get, the coals, he, the working tenant, not appropriating to himself more than his share of the pro- ceeds. Job v. Potton (Eq. C), XIII, 630. 6. The plaintiff, a tenant in common of a coal mine, had notice of a negotiation, which was followed by a lease for three years (in which he did not join) by his two co-tenants, dated in December, 1865, of two undivided thirds of the coal with license to work the coal. Under this license some coal, but considerably less than two-thirds of the whole, was raised, and one-third of the royalty was kept by the licensee for the plaintiff. A negotiation for a further license was on foot, when, in October, 1872, the plaintiff filed the bill against his co-tenants and the licensee, praying for an inquiry as to the value of the coals raised ; and an account against all the defendants as trespassers ; for an injunction and receiver, and for damages. Held, that the working was not a trespass ; and the plaintiff electing to dismiss the bill with costs against his co-tenants, that he have a decree, without costs, agains* the licensee for an account of the value at the pit's mouth of the coal raised, less costs of get-, ting and raising, and for payment of one-third to plaintiff. lb. • See Distress ; Fraud ; Will. TENANT BT CURTESY — ,Se6 Estoppel. TENANT FOR LIFE. 1. Iiien for advances. A tenant for life, under a settlement comprising shares, has a lien on the shares for repayment, with interest, of advances made TENANT FOE LIFE. TIMBER 487 at the request of the trustees for the purpose of paying calls on the shares, even though the trustees might, hy exercising powers vested in them, have raised the necessary money otherwise. Todd v. Moorliouse (Eq., C), XI, 680. 2. Restraint on anticipation. Where a fund producing income is given absolutely to a married woman, and the gift is followed by a restraint on ' anticipation, the married woman is prevented from alienating the fund during coverture. In re EUis' Trusts (Bq. C), IX, 611. 3. — . — A testatrix, Serrible, if the testator's estate were being administered by the court, interest on their contingent shares would have been given by way of maintenance. lb. 244. Held, also, that the trustees would be j ustified in increasing the illlowanoe for infant daughters of the testator so as to meet the expenses of education, as included in maintenance and support. lb. 245 . A testator by his will, dated in 1858, gave all his real and J)ersonal estate to trustees upon trust out of the proceeds of his personal estate, or jf and so far as the same should be insuflBlcient, then out of the proceeds of his real estate, to pay his debts ; and as to a certain house belonging to him, to permit his widow to occupy it during widowhood, and on her second marriage or death to sell the same. The usual decree for administration was made by the court, and the Chief Clerk fouudHhat all the debts had been paid out of the personal estate. By an order subsequently made on further consideration of the cause, it was ordered (with the consent of the widow, who was still living), that the said house should be sold ; and a contract for sale was entered into. The purchaser having objected that a good title could not be made, held, that the trustees had no power of sale, and that the objection was valid. Ga/rlyon v. Truscott (Bq. C), XIII, 845. 246. Quantum of estate. Testator, by will made in 1831, after a gift of leaseholds to his daughter E., gave all the remainder of his property whatso- ever to his wife D., the income to herfor life, and at her death, unto E., for her own benefit and her children, or one only child if she should have any (all that was given to E., being for her own benefit and not to be subject to the debts, control, or disposition of any husband she might marry) ; but if E. should die without issue, the leaseholds were to be enjoyed by D. for life, and at her death, to his sister S.'for her iife, and at her death, together with all that was left to D. for her life, to be equally divided between all tl\p grand- children of S. E. died without having had a child. Held, that E. was entitled absolutely both to the leasehold specifically bequeathed to her and to the residue given subject to D.'s life interest, and that the limitations over, if E. " should die without issue," were void for remoteness. Visher v. Webster {Ei Protest, Warranty. Bill of particulars, in crim. con., X, 727. Blank, how far may be filled up, XIV, 587, 588, 589. when prevents bond being negotiable, XIV, 611. Bodies, dead. See Burial. Bona fide holder, officer of bank issued check payable to self, XIII, 89. one taking bill of exchange before due obtains title, XIII, 244. presumption that transfer by corporation legal, IX, 255. purchaser from trustee or personal representative, VI, 168 ; XIII, 595 purchaser of bonds and coupons, VI, 119 ; IX, 115. taking crossed check which has been stolen, XIII, 244. though some of partners entitled to exclude one must do so bpna fide, X, 385. to what extent protected, IX, 115. when purchaser is, and when not, IX, 114. when purchaser of stock may recover against directors, VIII, 34. when the fact that party improperly dealing in own behalf, notice to pur- chaser from him, X, 576. accepted in payment of precedent debt not secured by negotiable paper, XI[, 613. agreement debt shall be applied on purchase price not sufficient to take out of statute frauds, XII, 612. though seems actual application would be, XII, 612. agreement mortgage for $200 shall stand security for more, XII, 616. bank collecting and crediting to remitting bank, XII, 615. delivered as escrow'and sold to bona fide purchaser, XII, 610. deposited as security for stocks purchased, XII, 613. v discharge of precedent debt good as against creditors iflflarge, XIT, 613. 580 DIGEST OF Bona fide holder — Continued. but not one having specific lien, XII, 613. equity enforces agreement to give mortgage, XII, 616. otherwise if no further act intended, XII, 616. exchanging notes, XII, 612. extension of time, however short, makes bona fide, XII, 611. but agreement must be valid and for some definite time, XII, 611. fraudulent vendee sold property to apply on precedent debt, or pursuant to contract, before obtained title, XII, 615. giving own promise to pay does not make, XII, 615. unless negotiable paper and transferred to bona fide holder, XII, 615. holder for value in part, XII, 613. in New Tork, taken as collateral security for existing debt, XII, 614. to secure against indorsements, XII, 614. to secure loan made at time, XII, 614. or loan not due and collaterals surrendered, XII, 614. made loan to be paid out of proceeds is, XII, 613. mere expectation will be used for particular purpose not suflScient to re- strict, XII, 610. mortgage large enough to secure future advances, XII, 616. no restriction as to use ; may use for any purpose, XII, 610. not sufficient that holder might have ascertained equity, XII, 610. note made for specific purpose not so used, XII, 613. note made to take up another, and substantially so used, XII, 613. note third person given up, XII, 614. partial failure of consideration, etc., will not impose burden of showing good faith on holder, XII, 610. payee's laches prevented drawers filing lien, XII, 613. purchaser before due knowing diverted, XII, 615. purchaser must actually surrender note given in payment, XII, 611. seller must actually deliver note claimed on, XII, 611. taken as collateral for existing debt in States other than New Tork, XII, ■ 615. but if such holder transfers to bona fide holder, he gets good title, XII, 615. taking as collateral security does not make, XII, 613. transfer of worthless claim does not make, XII, 613. transferred in payment note, though already due, XII, 611. though maker of surrendered note insolvent, XII, 611. for prevents suit on note surrendered till other due, XII, 611. transferred on usurious or illegal loan, XII, 616. what amounts to parting with value, XII, 616. what must plead and show, XII, 610. what necessary to constitute, XII, 608. when holder shows obtained before due and for value, maker must show had knowledge of defense, XII, 610. when maker shows fraudulently or wrongfully put into circulation, holder must show he is, XII, 60B. /> i j d -=.„~,^ .c ^ , / AMERICAN NOTES. 581 Bona bide holder — Continued. See Alteration, Bonds, Executors and administrators. Negligence, Notice, Payment, Principal and agent. Stock. Bona fide purchaser, creditor piucliasing on execution does not make, XTV, 728. replevin against one not, XIV, 728. See Bona fide. Notice. Bonds, coupons may be sued independent of bond, XII, 535. difference between eminent domain and taxing power, XII, 180. how far indorsement will affect negotiability, XII, 535. bow far negotiable, XIV, 610. if wrongfully sold, maker can recover of seller, XII, 535. purchased third day of grace, XII, 534. what notice of defense and what not, XII, 534. what ratification of illegal, XIV, 611. when afladavits declared " proof " of requisites to issuing, XII, 171, 176, 179. when blank prevents negotiability, XIV, 611. when. bonds are beyond powers granted, XII, 175-180. when held void though valid on face, XIV, 611. when issued by municipal corporations are negotiable instruments, XII, 165. when negotiable and rights of holders though stolen, VI, 119 ; IX, 115. . when negotiable and when not, XII, 534. when officers who issue agents of town, XII, 166. when statute cures irregularities in issuing, XII, 169, 175-180. when town not compelled to issue, XII, 170. when valid though statutory requisites not complied with, XII, 166. who bona fide holder and who not, XII, 534. Breach, if refuses to perform may sue at once, I, 225. Bridge, how far construction of, by railway, etc., controlled, XV, 253. liability of railway to keep in repair, XV, 252. Injunction, Mandamus, Taxation. Broker, acting for both parties, X, 576. rights and liabilities of stockbroker, VI, 809. when cannot sell own property or buy of principal, XI, 118. See Frauds, Statute of. Stockbroker. 582 DIGEST OP Burial, action for injuring tombstones, XII, 666. action for interfering with dead body, monuments, etc., XII, 656. bankrupt's interest in vault does not pass to assignee, XII, 665. casting body into river, etc., XII, 667. church may sell lands in which burials have been made, XII, 665. city ordinances prescribing manner of, XII, 667. consignor cannot maintain action for not delivering corpse, XII, 668. corpse sent in casket C. 0. D. removed and casket returned to sender, XII, 668. disinterring dead body, XII, 667. disposing of for dissection, XII, 667. equity will prqtect right to, XII, 663. Guibord's Case, XII, 668. husband has right to bury wife, XII, 666. if widow purchases lot with funds of estate trustee for children, XII, 666. inj unction lies to prevent removal, XII, 666. lands' may be dedicated for, XII, 665. in such cases ejectment will not lie, XII, 665. law of, and who entitled to select place of, XII, 656. may sue one who mutilates body, XII, 666. owner does not take title to soil, XII, 666. owner may be restrained without joining lot owners, XII, 665. owner of lot in cemetery association cannot be deprived of rights, XII, 666. owner of lot may bury whomsoever he pleases, XII, 665. though colored man, XII, 665. query, where deed taken subject to by-laws, XII, 665. representative liable personally for burial, tombstone, etc. , XII, 666, 668. restraining burials as a nuisance, Xtl, 667. rights as to conducting services at, XIII, 382. rights of lot owner, XII, 665. trust to keep lot, tombstones, etc., in repair, XII, 666. when mortgagee bound by right of burial, XII, 665. Burthen, upon whom is of explaining alteration, XIV, 585, 590. c. Carelessness, resulting in death, X, 511. See Negligence. Carrier, bound to take baggage on same train as owner, XI, 134. cannot set up payment for goods by insurer, IX, 576. consignor cannot maintain action for not delivering corpse, XII, 668. corpse sent in casket, C. 0. D., removed and casket returned, sender no lien on corpse, XII, 668. delivery to fictitious person, X, 37. evidence required where liable only in case of theft, etc. , by employees, XIV, 369, 878. explosives accidentally detonated, XIV, 557. shipper liable, XIV, 557. have a right to assume package is what it seems, IV, 353. AMEEIOAN NOTES. 583 Cakrier — Continued. how far may stipulate for exemption from liability, and efEect, and validity of notice will not be liable, XIU, 153 ; XIV, 618. how far passage tickets mere tokens, XIV, 375. how far parol evidence admissible to vary, XIV, 375. when connecting contract for entire route, XIV, 875. liable until property delivered, XI, 133. liability for goods waiting delivery to next carrier, XI, 138. liability for injuries to animals from own propensities, II, 704. mastic melted and ran into goods, XIV, 557. shipper fwima/acie consignee's agent to make special contract, XIV, 376. upon whom onus qf showing which one of several carriers injured prop;- erty, and how that fact shown, XI, 134. when baggage or property lost or injured by one of several ooimecting railways, 'which liable, and presumption as to which lost or injured the property, XI, 133. when not liable for property destroyed without fault, IV, 879. See Act of God, Animals, Negligenoe, Pass, BaUway company. Case agreed upon, submission to court, V, 735. Chamber, when one has an estate in. III, 259. Charge. See Legacy. Chattel mortgage, mortgage on rolling stock of railway must be filed as, V, 246; X, 606. See Domicile, Fixtures, Frauds, Statute of, Check, when failure of bank loss of owner, XII, 67. when operates to transfer drawer's funds, VII, 69 ; XII, 66. Children, allowance for maintenance of, I, 430 ; III, 725 ; V, 635 . degree of care required from and whether negligence of parent bar to recovery by, IX, 474. negligently abandoning or allowing to starve, XIII, 435. right to custody of, liability for support, etc. , IV, 367 ; VI, 553. when and how unborn barred, VII, 639. when means illegitimate, VII, 30. when parents dealing with amounts to fraud. III, 186. See Murder, Parent and child. Church. See Burial, 584 DIGEST OF Circumstantial evidence. See Quilty knowledge. City, liability for diverting water from river to injury of commerce, IX, 736. ordinance or contract must strictly conform to charter, VI, 18. vchen alderman cannot contract with, IX, 374. when liable on account of ice and snow in streets, II, 575. See Bonds, Oorporations, Municipal corporations, Ordinance, Civil death, how service to be made on convict, XII, 690. V Clergyman, rights of, on disturbance of meeting, XIIJI383. Collateral, See Bona fide holder. Collision, how far want of lights is a defense, II, 156. Common carrier. See Carrier. Compromise, cannot repudiate after suit for fraud, IX, 533. how far admission on competent, XI, 319. See Duress. Condition, devise on condition should not marry except by consent of trustees, one did not qualify, XIII, 736. devise void if contests will, XIII, 739. if one of several broken, statute of limitations begins then to run, XIII, 739. lease -upon condition tenant shall occupy personally, IX^ 333. legacy on condition child shall live with particular person, XII, 126. on condition does not marry, XIII, 737. on condition should not become nun, marry catholic, etc., XIII, 736-9. on condition should not marry without consent, XIII, 736-9. one legatee njay purchase at certain price, others may sell interest and effect of, XIII, 739. to be property of devisee astfgainst creditors, XIII, 737. to widow if does not " marry or misbehave," XIII, 737. trustee to declare trust for children if married by consent, XIII, 737. See Devise, Legacy. Condition precedent. See Lien, Performance. Condonation, when wiped out by conduct not suflBcient for divorce, I, 349. Conductor of railroad, what must allege and prove in defense for assault, III, 3 J 3. Confession, by letters in possession of or written by prisoner, II, 195, 333. evidence of defendant before coroner's jury, V, 167. not excluded merely because under arrest, II, 339. See E Conflict of laws. See Divorce, Domicile. AMEKIOAN NOTES. 585 Oonfiision, article converted into different species, XII, 719. converting corn into wMsky, title in owner of corn, XII, 718. damages in actions for conversion, XII, 719. owner of original article may retake7 XII, 719. right in equity to pursue proceeds of property, XII, 719. when value increased in good faith, XII, 719. Consent. See Assent. Consignor and consignee, former presumptively agent of latter to make special contract, XIV, 276. Consideration, agreeing to pay interest on interest, XI, 46. agreement for forbearance for limited period valid, XI, 793. agreement of son to pay for father's support, II, 674. agreement on past void, XI, 793. agreement to forbear must be with debtor's assent, XI, 793. agreement to keep money due and pay interest without, XI, 48 ; XI, 792. agreement to pay if waited on is without, XI, 792. agreement to take lease of another and to pay back rent, XIII, 500. if A. will pay debt will indemnify him, good if he pays, XI, 792. $50 deducted for security ; subsequent agreement to pay it for forbear- ance, XI, 793. none to agree to keep money due and pay interest, XI, 46. one signing note after made and delivered, XI, 792. one signing note after made pursuant to agreement of maker when deliv- ered, XI, 793. promise to indemnify surety after he signs, XI, 793. . when agreement for forbearance not inferred, XI, 793. when agreement for forbearance to self or another valid, XI, 793. when promises mutual so as to support each other, VII, 134. when recital of sufficient to bind, XI," 793. See Bona fide holder. Parol emdenee. - ^ Consignor and consignee. See Carrier, ^~~^ Consolidation of corporations, XIV, 83. ■ Conspiracy, by workmen, XV, 328. how far acts and declarations of co-conspirators admissible, XIII, 428, 440. what is, how proved, and law of and indictments for, XIII, 440. where venue may be laid in, XIII, 441. See Duress. Construction, with reference to surrounding circumstances, XIII, 698. Contempt, by publication in newspaper, IV, 256. in suing receiver, assignee in bankruptcy, etc., XIII, 809. Contractor, how far liable and when, for acts of sub-contractor, IX, 333. negligence in burning brush, XIV, 547. Contribution. See Indemnity, Tenants in common. 586 DIGEST OF Conversion; one selling for another in good faith. III, 354. when property treated as real and when personal, IX, 743. when refusal to allow to enter lands to take property is, and when not, XV, 230. 7}rmer. Conveyance. See Delimry, Praucis, Statute of. Convict, how service to be made on, Xll, 690. Corporate elections, how conducted, VII, 587. when and how new election ordered, VII, 588. when ordered and how, VII, 585. who entitled to vote at, VII, 585. See Corporations. Corporations, authorized to sell cannot exchange, XIV, 84. borrowing money by building society ultra vires, XIII, 155. cannot purchase for " rigging " market, XIII, 756. cannot transfer all its property and terminate existence, XIV, 81. consolidation of, XIV, 88. directors mere agents to conduct its business ; no power to destroy or give away its funds, XIV, 84. duty of trustees to stockholders on dissolution of, XIV, 82. failure by stockholder to object wiJi*Tifot prevent recovery, XTV, 84. failure to consent and neglect tajstte does not bar, XIV, 85. j urisdiction over, foreign, XI3ff441. majority of stockholders cannot change, XIV, 82. mere failure to object does not estop, XIV, 85. one cannot sell franchise to another, XIV, 83. one shareholder may restrain illegal amalgamation, XIV, 83. no defense that his interest small, XIV, 84. nor that motives improper, XIV, 84. power of legislature to change charter without discharging stockholders, XIV, 81. directors cannot make such change, though authorized by statute, XIV, 81. property cannot be diverted to another purpose, XIV, 83. requiring to agree not to remove to Federal courts, XIV, 441. requiring to appoint agent for service, XIV, 441. rights of majority to dispose of property of, XIV, 83. one stockholder may dissent, XIV, 83, 84. appraising his interest in New York, XIV, 83. rights of stockholders in property of, and remedy against illegal disposi- tion of, XIV, 82-5. right of stockholders to withdraw, and remedy for value of stock, XIV, 83. stock held by or in trust cannot be voted on, XlII, 756. though may take property in pledge or payment of debts and reissue, Xm, 756. stockholder who takes no notice of scrip in new corporation, does not become of new, XIV, 85. AMERICAN NOTES.- 587 Corporations — Continued. trustees cannot exchange assets for stock in another corporation, XIV, 84. trusted carried on business after chatter expired, XII, 155. trustees must see that all stockholders assent, XIV, 83. trustee must sell in ordinary manner, XIV, 84 if not, liable though credit given in good faith, XIV, 84. what ultra vires and what not, XIV, 81. when acceptance note of, novation of claim against promoters, XV, 381. wheii foreign, restrained, XIV, 441. when has power to do act presumption that lawfully done, IX, 255. when it must sue, and when stockholders may, HI, 38 ; XIII, 757, 758. how stockholders to sue, XIV, 85. when not liable upon contracts of promoters, XV, 381. , See Corporate Elections, Corporator, Directors, Injunction, ' ManAamws, Railway companies, . Stock, StocKIiolders. Coxporator, remedy if improperly excluded, IV, 43 ; X, 385. Corpse. See Burial. Costs, when extra allowance made and what the basis of value for, X, 659. when may be recovered as damages, V, 399 ; XII, 507. when one is liable for, to another who prosecutes or defends, XII, 506. when proceedings stayed until payment of in former suit, IV, 316. Counsel. See Attorney, Notice, ■Principal and agent. Counter-claim. See Set-off, Coupons, rights and liabilities of holders of, VI, 120 ; IX, 115. See Bonds, Courts, organization of English, XV, preface. Covenants, when as to light runs with land, XI, 533. Creditor, cannot reach legacy for support, II, 268 ; VII, 604. how far may reach products of wife's farm managed- by husband, XIV, 418. what delivery of timbet cut necessary as against, XV; 338. See Condition, Life estate. Creditor's bill. See Condition, Creditors, Legacy; Life estate. 588 DIGEST OF Cnminal. See Extradition, Jurisdiction. Criminal law, injuiing passer-by with ice thrown from roof, XIV, 947. when may convict of inferior offense, XIII, 456. See Demurrer, JEvidence, Extradition, Former acquittal, Guilty knoifiledge. Intent, Plea, Verdict. Crops, when pass by sale and when not, XIII, 19. See Frauds, Statute of. Custom, when admissible and effect of, I, 41. See Fishery, Parol evidence, Qe. D. Damages, action by tenant against landlord, IX, 164. architect's plans not delivered in time to compete for premium, XIII, 54. court dissatisfied with amount given, XIV, 557. extra expense from delay on failure to perform, XIII, 53. failure to deliver part of map of similar property, XIV, 578. from raising or lowering street, X, 24. how value of life estate estimated, X, 662. import duty took effect from failure to deliver, XIII, 53. in assault and battery, actor could not play with wife, XIII, 53. materials for house attached, so furniture injured and rent lost, XIII, 55. party injured must lessen if can, XIII, 53. party lost employment in consequence of arrest, XIII, 53. property inj ured or lost in consequence of delay, XIII, 53. prospective profits and losses, when recoverable and when not, XIII, 52. right of riparian owner of navigable stream to, X, 34. to property from failure to repair, XIII, 53. ' value of use of property when recoverable, XIII, 55. what sufficient special to maintain action for obstructing street, XIII, 584. when consequential, II, 493; V, 377 ;_X, 35. when costs may be recovered as, V, 299 ; XII, 507. when may be recovered beyond penalty, IV, 343 ; VIII, 431. when new trial granted, in cases of penalty or where too small, XI, 148. when vendor sells real estate in good faith and when does not, IX, 164. wrong-doer or carrier cannot set up payment by insurers, IX, 576. See Confusion, Tenants in common. Dead bodies. See Burial. Death, presumption as to, and when marriage legal after absence, I, 467 ; XIII, 674. when may recover for wrongful though instantaneous IV, 75. AMERICAN NOTES. 589 Death, civil, liow service to be made on convict, XII, 690. DecIarationB. See Pwrol evidence. Dedication, for burial purposes, XII, 655. Deed, delivery to take effect on death of donor, X, 800. when conveys from point to point must run straight line, I, 191. when recording is delivery and when not, XII, 384 ; XIII, 787. See Delivery, Frauds, statute of. Title. Defense, when equities of defendants among themselves cannot be interposed, XII, 333. Defendants, how far judgment estops one as against another, XII, 333. when and how far equities between cannot delfty plaintiff, XII, 333. Deficiency, when made up from ^Mrpus of the estate, XIII, 792. Delivery, as an escrow to take effect on death, XIII, 787. not delivered till after death, XIII, 787. as to wliat is to pass title, XII, 857. by leaving for sheriff in pigeon hole, XIII, 786. causing deed to be recorded, XII, 384; XIII, 787. court of equity compelling custodian to deliver, XIII, 789. effect of custodian delivering without authority, XIII, 788. error as against bona fide purchaser, XIII, 788. husband and wife delivered as escrow, husband consented to delivery, XIII, 789. if in hands of third person presumptively an escrow, XIII, 788. if not delivered, no evidence against party signing, XIII, 788. instrument altered takes effect from alteration, XIII, 789. onus on party delivering to show intended as escrow, XIII, 788. to be completed by others signing, XIII, 788. to determine whether will accept, XIII, 788. to examine, XIII, 788. to party or agent, XIII, 788. to party to deliver to another as escrow, XIII, 788. to person under fictitious name, by carrier, X, 37. to take effect on death of donor, X, 800. to third person when valid, X, 800. what is, in escrow, and effect of, XIII, 787-9. what will constitute, XIII, 786. when instrument delivered as an escrow takes effect, XIII, 789. whether delivered as escrow to be determined from the circumstances, XIII, 788. See Bona flde holder. Deed. Demaad, of two, necessary to be made of each, XIV, 728. « necessary against one innocently obtaining possession, XIV 738. See Conversion, Trespass, Trover.. 590 DIGEST OP Demonstrative, when legacy is, XI, 653. demurrage, when and upon what principle consignee liable for, XIII, 391. Demurrer, proceedings on, in criminal case, XIV, 663. See Multifarioumeaa. Devastavit. See Legacies. Devise, laud devised, sold and mortgage taken on supposition devisee would ' take that, XIII, 699. on condition shall not sell, or shall not sell to particular person, X, 831. who subscribing witness to will; when void and when not, XIV, 536. See Oondition, Legacy, Life estate. Directors, adjournment by, XV, 18. bound to act honestly and with ordinary care, XIII, 757. cannot act as to matter have adverse injierest, XIII, 759. cannot be compelled to act against any class, XIII, 757. cannot issue stock to control election, VII, 119 ; VII, 586. dejacto, XV, 18. for what acts liable and what not, XI, 484. have a right to know acts of co-directors, and may maintain mandamus for knowledge, XIII, 757. • holding over, XV, 18. how far bound to disclose knowledge acquired aa such, XI, 484. • how far one liable for wrongful acts of others, XIII, 757. duty of dissenting in such case, XIII, 757. how far presumed, and how. far bound, to know minutes of proceedings, XIII, 757. lend to firm of which is -member, XIII, 759. liable to corporation if money lost by usury of, XIII, 756. liability for issuing prospectus, VIII,-34. liability of, for illegal acts, and how made so. III, 38. meetings on regular days, XV, 18. must all meet, and how, XV, 18. number required for legal meeting, XV, 18. when and how elected, who entitled to vote for, how election conducted, and when and how new one ordered, VII, 585. when cannot purchase corporate property, X, 576. when liable to one purchasing stock, XIII, 758. when may act and when not, XI, 484. when purchase by, fraudulent, XI, 488. when return of property not decreed, XIII, 758. when stockholders may sue. III, 38 ; XIU, 757, 758-9. when will not be restrained, XIII, 758. who is, and Ijability of one holding over, XIII, 381*. See Corporation, Corporate elections, Stockholders. Discharge, of accused for want of diligence by public prosecutor, XI, 883. AMERICAN NOTES. 591 Discontinuance. ' See Mninent domain. Discovery, attorney may be compelled to disclose residence of client, V, 838. when bin of particulars ordered in erim. con., X, 737. Disorderly person, when and how may be ejected, II, 166. Distance, from point to point to be measured " as Crow flies," I, 191. Distress, when goods of third person not liable to, IV, 229. Diversion. See Bona fide holder. Dividends. See Stochholders. Divorce, after divorce forbidding marriage fraudulently going to another State and marrying, XI, 874. connivance by plaiutifiF a defense, IV, 663. honest belief right to marry, no protection, XI, 874. legislature no right to declare invalid marriage valid, XI, 874. power of legislature to grant against one not a resident of the State, XI, 874. service by publication and not personal, XI, 873. what court may do as to support of wife or children after judgment, XII, 136. when conduct not entitling to, wipes out condonation, I, 249. when insanity not a defense to, X, 77. wife's domicile independent of husband, XI, 873. Domicile, as to attachments, XV, 740. as to domicile under law of taxation, XV, 740. as to filing chattel mortgage, XV, 740. as to holding office, XV, 740. as to voting, XV, 740. as to whether non-resident plaintiflF may attach property of non-resident defendant, XV, 740. as to when may arrest, XV, 740. assignment in Canada passes in States, XV, 740. change of residence merely -insufficient, XV, 739. difference between and " allegiance," XV, 739. difference between and " residence," XV, 739. evidence by old settler don't know, presumed no such person resides there, XV, 740. how far parent may change, XV, 789. how proved, XV, 739. if of choice abandoned, that of origin revives, XV, 789. jurisdiction of admiralty both foreigners, XV, 740. larceny in foreign country, XV, 740. law presumes resides where found, XV, 740. meaning of " inhabitant," XV, 740. meaning of "resident," XV, 740. of seafaring man, XV, 739. once acquired continues till new one gained, XV, 739. once shown presumed to continue, XV, 740. one with no residence not " non-resident," XV, 740. nor is he an absconding debtor, XV, 740. 592 DIGEST OP Domicile — Continued. thougli change of domicile requires no definite time, XV, 739. to govei^n in cases of will, III, 478. transfer personal property governed by domicile of owner, XV, 740. what necessary to create, XV, 739. what sufficient to show and what not, XV, 739. wound in one country, death in another, XV, 740. See Divorce, Lex loci. Sower, how far annuity in lien of, abates, XIV, 237. when widow must elect between, and legacy or devise, XIV, 337. when widow will be put to election between, and orovision in will, VII, 616. See Damages, Election, Husband and wife. Duress, agreement that if will testify truly will procure entry of noUe prosequi, XII, 743. employer obliged to pay more in consequence of conspiracy, XII, 743. facts showing must be pleaded, XII, 743. not necessary threats should be made when compromise made, XII, 743. note in part plan to stifle criminal prosecution illegal, XII, 743. note taken for civil damages from one charged with crime, XII, 743. paying money not due to obtain own property is, XIII, 53. terrifying married woman by arrest of husband, XII, 743. what is, XII, 741. Whether surety may avail of principal, XII, 743. stranger cannot take advantage of, XII, 743. owner may of bailee, XII, 743. E. Easement, adjoining lots with drains, out-houses, etc., on both, XII, 357. when passes as appurtenant, XII, 356. as appurtenant confined to cases where is apparent and visible, XII, 257. benefits apparent when pass and when not, XII, 256. but must be reasonable,.XIl, 357. is not restricted to same purpose, XII, 357. manner of conveying water changed, XII, 357. may pass as to grantor though not as against bona fide purchaser, XII, 357 not restricted to exactly same condition, XII, 357. of drip, may raise walls, XII, 357. of eaves, does not require title to lands under, XII, 357. one tenant in common cannot allow creation of, XII, 258. only essential easements pass, XII, 257. presumed to contract with reference to visible condition, XII, 358. reservation use of well, XII, 257. , right to support, XII, 257. when change of manner of enjoyment does not destroy, IV, 396. AMEEICAN NOTES. 593 Easement — Continued. when dam, flume, reservoir, etc., pass, XII, 258. when easement extinguivshed by unity of title, XII, 257-8. whether to A. passes to heirs and assigns, XII, 359. See lAoense, Way. Xjjectment, against husband of widow on condition should not marry, XIII, 737. for lands dedicated for burial, XII, 665. See Tenants in common. Election, must be made with full knowledge, XIV, 237. peculiar cases as to, XIV, 237. when acceptance of life estate does not bar dower, XIII, 727. when and how widow put to, between dower _and provision in will, VII , 616 ; XIV, 237. where devisee's property given to another, XIV, 236. which party has option, XII, 396. See Way. Election, corporate, directors cannot issue stock to control, VII, 119. effect of presiding oflScer, etc., refusing to act or absenting himself, XV, 400. how conducted, VII, 587. ' when and how new election ordered, VII, 587. when ordered and how, VII, 585 ; XIII, 756. who entitled to vote at, VII, 585. See Corporations, Directors. Election, public, when vote for person ineligible not to be counted, II, 743; ,butsee50N. Y. 451. Elevator, liability of owner of, for not delivering grain from mass, XIV, 578. Embezzlement, agent of insurance company, XII, 644. an auctioneer, XII, 644. assignor of choses in action employed to collect, XII, 644. box of valuables left with married woman, XII, 644. carrier, by statute, XII, 644. but goods must be delivered to as carrier, XII, 644. charged as of money, embezzled check, XII, 644. constable neglecting to pay over money, XIV, 645. deputy of public ofBcer, XII, 644. different sums at different times, XII, 643. land agent of a corporation, XII, 644. may charge servant of different companies, XII, 644. miller's foreman, XII, 643. .though paid out of profits, XII, 643. one employed to sell tickets for excursion, XII, 644. one took note under agreement to get another for it, etc., XIV, 645. 76 594 DIGEST OF Embezzlement — Continued. one to sell goods pay over proceeds as regular business, XII, 644. otherwise if not regular business, XII, 644. one to whom carman by mistake delivered box, XII, 644. one wlio receives watch to trade for wagon, XII, 644. one who takes note to sell to pay another, XII, 644. one with whom money deposited as banker, XII, 644. overseer of township, XII, 644. public officer, XII, 644. question of fact whether servant or agent, XII, 643. so whether woman lived with man not her husband , XII, 643. secretaryof building society, XII, 644. but not guilty of larceny, XII, 644. servant guilty of, though enters money on master's books, XII, 643. servant of a trades union, though rules illegal, XII, 644. sometimes question of fact whether receives money by virtue of i employ ment, XII, 644. station agent is, XII, 648. though master bankrupt, may be charged to be his until adjudication, XII, 643. ticket agent of railroad company, XII, 644. tradesman in good faith receiving goods for manufacture, XII, 644. treasurer of friendly society, XII, 644. trustee of a friendly society, XII, 644. ' warehouseman, XII, 644. who is an agent, XIV, 645. See Jurisdiction. Eminent domain, damages from raising and lowering streets, X, 34. exercise over river and waters thereof, X, 34. how much land railway company entitled to take and " necessity " for, X, 56. remedy of owner, XI, 697. taking water by right of, IX, 556. when bound to pay value, as increased by party taking, from additions, XIII, 17. when proceedings may be discontinued, XI, 697. Endorsers. See Indorser, Protest. Enemy. See Insurance. Equity, remedy in, for interference with water-course, IX, 556. when proceeds of property may be followed in, XIL 719. whether will set aside in, for fraud, XII, 103. See Injunction. Escrow. See Bona fide Twlder, Estoppel, accepting money awarded for land taken, public improvement, XII, 383. AMERICAN NOTES. 595 Estoppel — Continued. accepting surplus on sale does not prevent insisting process was illegal, XII, 382. acceptor sometimes estopped, though contract canceled, XIV, 268. admissions after act not estoppel, though are evidence, XII, 376. admission by one joint contractor not a partner, XII, 885. adult joined infant in petitioning for sale, XII, 382. advised was fall enough for dam, XII, 379. after receiptor delivers to officer may sue, XII, 383. after release debtor presented petition stating debt, XII, 384 agent receiving money as such, XII, 383. agreed to measure land sold by acre within given time, but did not, ^11, 384. agreement to waive or not to insist upon defense, XII, 377. agreement one suit abide result of another will prevent pleading statute of limitations, XII, 378. agreement to waive claim for exemption, XII, 377. amount of evidence required to establish, XII, 385. both parties having equal facilities for learning truth, XII, 380. cannot allege had forgotten had title, XII, 378. cannot make illegal act valid, XII, 375. carrier gave bill of lading "in good order," XII, 384. carrier or messenger estopped from claiming contract on which sent ille- gal, XII, 383. certificate no usury must be aliunde the obligation, XII, 381. certificate no usury mere device, XII, 383. claiming in one suit under one title, and in next under another, XII, 384. collector from denying legally collected taxes, XII, 384. consent founded upon condition, XII, 377. declarations made to third party not, XII, 377. defendant in execution told constable had sold property, XII, 383. defendant in replevin giving undertaking, XII, 384. director not estopped from claiming did not know condition of company, XII, 380. does not arise from justifiable act, XII, 877. doing act to influence another or to derive advantage, XII, 375. dowress who executes tb release not from clairiling any thing else, XII, 379. indorser as to signature of maker, XII, 381. so acceptor, XII, 381. so one contracting with executors, XII, 381. so one recognizing title of trustees, XII, 381. indorser not by declarations of maker, XII, 381. _even though be matter of record, XII, 378. execution creditor in action against sheriflF may avail himself of estoppel in favor of sheriff against receiptor, XII, 385. facts appear upon face of record, XII, 380. failure to deny signature by one whose name forged, XII, 377. former suit when a bar, II, 617. 596 DIGEST OP Estoppel — Continued. grantee in deed not from denying delivery by procuring to be recorded, XII, 384. grantee of one entitled to insist upon may set up, XII, 385. grantor with covenant of warranty, etc. , XII, 383. holder told surety debt paid, so lost opportunity to pay and collect of maker, XII, 382. how far appeal from judgment operates from setting up judgment as, II, 124. how far married woman estopped, XII, 379, 383. how far husband liable for acts of wife, XII, 379. husband conveyed to trustees for wife, from claiming as tenant by cur- tesy, XII, 883. if agrees one suit shall abide result of another, judgment estops, XII, 378. if facts known, certificate " no usury " does not estop, XII, 381. if facts known, declaration as to law not, XII, 380. if facts known, silence does not create, XII, 379. if knows encroaching by building cannot insist upon, XII, 379. if pleads usury cannot insist upon validity in suit upon original considera- tion, XII, 381. indorsee of one in favor of indorser, XII, 385. where insisted answer had been returned cannot afterward insist valid, XII, 381. insurance company accepted abandonment, XII, 383. insured signed application prepared by company's agent, XII, 383. insurer knowing false assertions assessed premium note, XII, 383. inviting law suit, XII, 380. judgment barring persons not in esse, XII, 384. ■ maker certifying is valid, legal, business paper, XII, 381. may prove truth, unless doing so would effect wrong, XII, 376. but if does, estopped, XII, 376. mere delay does not operate by way of, XII, 377. mere license may be revoked, XII, 379. mortgagor in possession as against mortgagee, XII, 385. must be founded upon admission or assertion of fa^t, XII, 377. must be reciprocal, XII, 377. must have admitted fact, mere notice insufficient, XII, 376. # must have been acted and relied upon, XII, 376. must ordinarily have designedly said or done what did, XII, 376. , must ordinarily have intended to mislead, XII; 376. must properly have had influence, XII, 376. not estopped, unless knew facts, XII, 380. unless ignorance result of gross carelessness, XII, 380. officer of corporation executing note cannot insist was not valid debt against corporation, Xll, 381. one became " receiptor " to constable or sheriff, XII, 383. one knowing facts obtained admission from one who did not, XII, 382. one obtaining void divorce, XII, 883. one a party to instrument between husband and wife, XV, 761. AMBEIOAN NOTES. 597 EsTOPPBL — Continued. one present when another purchases estopped, XII, 378. one purchasing pendente lite, XII, 385. one selling as agent, from asserting was not, XII, 383. one sold paper asserting validity, XII, 381. one suing out process from alleging want of jurisdiction, XII, 383. one taking legacy cannot attack will, XII, 379. one who could have restrained sheriffs sale, XII, 379. one who encourages improvement cannot claim nuisance, XII, 378. one who fixes wrong boundary estopped until revokes, XII," 378. one whose property sold by officer not estopped unless misled, XII, 379. only parties and privies can set up, XII, 385. one who does not know facts i^eu makes improvements, but owner does, XII, 379. owner of real estate told one who put in fixtures had no objection to removal but could not consent, XII, 383. owner of way allowed wall to be built, XII, 379. party asserting must be prejudiced by allowing others to gainsay his acts or assertions, XII, 376. parties, each holding contract, purchased title agreeing to divide, XII, 382. payment part of sou's wages to father, not from showing emancipation, XII, 384. promise not per se, sufficient, XII, 377. promise to notify insured when premium due, XII,.378. public officers, not from alleging want of authority, XII, 385. purchaser at sheriffs sale not from attacking prior chattel mortgage, XU, 885. purchaser subject to mortgage for particular amount may insist not so much due, XII, 385. remainderman not by deed of ancestor, XII, 385. second mortgagee consenting to sale discharged of his lien, does not war- rant title and not estopped from setting up under title subsequently acquired, XII, 379. second mortgagee not by j udgment against mortgagor, XII, 384. seller delivered certificates as to quantity, XII, 376. seller on condition gave bill of sale omitting condition, XII, 383. one present at purchase, from interposing set-off or defense, XII, 378. so if stands by cannot assert lien, XII, 378. subscribing witness not, XII, 380. sureties, not from showing appeal without jurisdiction, XII, 384. sureties signing bond of officer, XII, 384. sureties, to release property from attachment, may show issued, without jurisdiction, XII, 383. tenant estopped from denying landlord's title, XII, 385. though deed, full covenant, XII, 385. though officer, ordinarily estopped same as individual, XII, 385. to be used as shield, but not as a sword, XII,.375. waiver of instrument being reduced to writing, XII, 378. when estopped from interposing statute of frauds, XII, 378. 598 DIGEST OP EsTOPPBL — Continued. when judgment does not estop one defendant as against another, XII, 323. when licensor estopped and when not, IX, 349. when mere failure to object is not, XIV, 85. when one estopped by judgment though not a party, V, 398 ; X, 663. when one seeing work done estopped and when not, IX, 349. when party estopped and when not, XII, 375. when and how far infant is estopped, XII, 383. whether by former suit must be pleaded, Xl, 344. widow accepting part purchase price in lieu of dower, XII, 383. wife acting for husband did not know facts, XII, 380. wife claiming dower, grantee may insist husband had no title, XII, 385. See Former suit,» Surety. Eviction. See Tenants in common. Evidence, amount ordinarily required in civil case, XIV, 378. amount required where issue as to guilt of crime, etc., XIV, 378. required in slander, libel, etc., XIV, 378. in such case may defendant show good character ? XIV, 379. amount required on indictment for perjury, XIV, 379. , as to nationality of vessel, XIV, 640. confesb'.on induced by deception, XV, 158. confession to detective, XV, 158. confession to one inducing to drink, XV, 158. confession not excluded merely because under arrest, II, 339. how far acts and declarations of co-conspirators admissible, XIII, 438, 440. how far medical and professional books may be used, XIII, 439. how far offer to compromise admissible, XI, 319. how lost will established by copy, XIV, 586. in action of negligence that purchased of reputable manufacturer, XIV, 558. instrument not delivered, none of facts stated in, XIII, 787. letter sent by prisoner, but opened, II, 333. of other crimes when admissible and when not, X, 513. parol evidence when instrument delivered as escrow, XIII, 788. parol not admissible to contradict or add to will, VI, 631. statement of defendant before coroner's jury, V, 167. unanswered letter in prisoner's possession, II, 195. when declarations of donor admissible, X, 808. when declaration of husband on taking possession of wife's . property admissible, XIII, 715. when letter not received by prisoner admissible, XV, 158. when reduction to possession only proven by wife's admission, XIII, 715. by person acquainted in community that knows no such person presump- tion is none, XV, 741. See False pretenses, Fraud, Chiilty knowledge, AMEEICAN NOTES. 599 See Memoranda, Parol evidence. Presumptions, Record. Exception. See Easement. ^ Execution, leaving in pigeon-liole for slieriff, XIII, 786. how far indorsement of receipt conclusive, XIII, 587. Executors and administrators, authorized to interpret will, XI, 394. authorized to sell to pay debts ; purchaser not bound to know whether debts, XIII, 595. by mistake transferred stock to widow; sold for her debt; purchaser obtains good title, XIII, 596. can trust funds be levied upon or reached to pay personal debts of repre- sentatives-, XIII, 596. court direct business to be carried on, XV, 508. (i carrying on business of deceased, II, 141 ; XV, 508. cestui qiie trust cannot justify tearing down wall on real estate as against trustee, XIII, 596. continued business advancing own funds to be first paid, XV, 508. expenses of burial, what complaint must allege, XII, 667. fraudulently transferred assets, VI, 168 ; XIII, 596. government allowance to children and heirs liable for debts, XIV, 419. how far cestui que trust may follow proceeds of trust property, XIII, 597. how far letters testamentary proof of death, XIII, 678. if continues business liable personally for debt, XV, 508. if survivor charged with interest or profits allowed liberally for services, XV, 508; IV, 927; X, 634. jurisdiction to compel foreign to account, XIV, 441. liable personaUy for burial, tombstone, etc., XII, 666. so for any contract he makes, XII, 666. not liable in representative capacity, XII, 666. liable to third person who pays funeral expenses, XII, 667. liability for delivering property to life tenant without security, XIII, 794. UabUity of purchaser from, XIII, 596. may sell, but must account for good will, though not be compelled to, XV, 508. one lent money to, on pledge of assets, XIII, 595. payment to, before appointment, IV, 493 ; XIV, 419. purchaser from one of two trustees, XIII, 596. receiving current notes of bank which fails, XIII, 563. sold to surviving partner at less than its value, XV, 508. testator directing to carry on business cannot embark new capital, XV, S08. though testator may authorize them to, XV, 508. when dealings with cestui que trust, or trust property void, XI, 113. when foreign may sue and when transfer property, XI, 691. when heir allowed to recover on note, XIV, 419. when must pay for real estate to be conveyed to heir and to whom deed tendered, VII, 736; IX, 743. when one is bona fide purchaser from, VI, 168 ; XIII, 596. 600 DIGEST OP ExEcuTOBs AND ADMINISTRATORS — Continued, when other assets liable, XV, 508. wheli personally liable ou contracts, III, 748 ; XII, 666. when statute of limitations begins to run against, and in favor of, VII, 690. when testator may (Authorize executor to select a co-executor, XI, 394. when widow may recover for husband's property without administering, XIV, 419. when widow can transfer no title as against representatives, XTV, 419. See Frauds, statute of, Legacies, Limitations, statute of. Multifariousness, Bent, _^ Widow, ■ Express. See Title. / Express company. See Carrier. Extinguishment. See Easement, Mortgage, Novation. Extra aUovrance, when made of costs and what the basis of value for, X, 659. Extra compensation, by government to children and heirs may be reached by creditors of deceased, XIV, 419. Extradition, of fugitives from j ustice, VI, 138. F. False pretenses, indictment for obtaining money by check, note, etc., XI, 356. when so obtaining money is, XI, 356. question of fact whether prosecutor exercised reasonable caution, XI, 856. sufficient to prove substance of allegation, XI, 356. that mortgage is first lien, XI, 356. Federal courts. State forbidding removal to, by foreign insurance company, XV, 271. when suit in State court bar to and viee versa, IX, 858. See Jurisdiction. Fence, prescription binding to build, V, 333. when defective a defense, V, 233. Ferry boat, horses became frightened on, XV, 317. Finder, rights and lien of, XIV, 558. when guilty of larceny, II, 191 ; VI, 333. Fire, when contractor liable for negligence in setting fire, XIV, 547 when owner is, XIV, 547. when damages from engine too remote and when not, II, 493 ; V, 377 ; X, 35. when second fire not result of first, XIV, 547. AMERICAN NOTES. 601 Fishery, custom to take fish, XIII, 131. liability of one injaring nets, XIII, 131. one had fish nearly inclosed with net another took them, ZIII, 181. protecting those who inclose fish, XIII, 131. restricting taking at particular seasons, XIII, 131. right of, in owner of shore, XIII, 130. right of one who plants and stakes out oyster bed, XIII, 130. seizing vessel illegally employed in taking fish, XIII, 181. See Trespass. Fixtures, action by representative of tenant, XII, 583. general principle for determining what is, XIII, 14. if tenant owns landlord cannot convey, XII, 583. is rolling stock of railroad fixture ? V, 346 ; X, 606; XIII, 14 remedy for wrongful taking, XIII, 30. remedy of tenant if landlord refuses to allow removal of, XII, 583. rule same as between mortgagor and mortgagee as grantor and grantee, XIII, 14. tenant allowed to remain long time abandons, XII, 583. tenant may remove after term, XII, 583. _ term uncertain as to termination, XII, 583. what are fixtures and what not, XIII, 14. what passes as, under mortgage, V, 346. when apparent from lease to become fixtures, XII, 581. when lessee to pay for, XII, 581 . when nursery of fruit trees planted by tenant not fixtures, XII, 583. when tenant does not forfeit by failing to remove, XII, 581. See Frauds, statute of. Forbearance, when good consideration and when not, XI, 46, 793. See Bonaflde holder, Consideration. Foreclosure. See Mort Foreign executors and administrators, when may sue and when transfer property, XI, 691. See Executors and administrators. Foreign government, when and how far courts obtain jurisdiction of, XII, 65 ; XV, 698. • when may be sued, XII, 65 ; XV, 698. Foreign insurance company, statute requiring appointment of agent and serv- ice on, XV, 371. effect of service on such agent, XV, 371. Foreign judgments, effect of service not personal and nb appearance, X, 503. See Divorce, Federal courts. Specific performance. Trust and trustees. 76 602 • DIGEST OP Foreign law. See Lex loci. Foreign sovereign, cannot be sued abroad for acts as, XII, 65 ; XV, 693. Forfeiture, equity sometimes relieves from, of legacies, X, 839 ; XII, 416. how far courts will relieve tenant from, XII, 417. bow far mortgagor from condition all principal to become due on non-pay- ^ment of part, XII, 417. of legacy by contesting will, X, 74. of stock, XV, 19. of vessel by engaging in illegal fisbing, XIII, ISl. Forgery, bow far failure to deny signature operates as estoppel, XII, 377. bow far ratification binds party, XII, 377. bow far payment of one instrument operates upon another, XII, 377. See Bona fide, Former acquittal or conviction, arson and murder by suffocating by fire, XIV, 657, assault and battery and riot, XIV, 661. breach of peace and assault and battery, XIV, 661. burning several houses by one fire, XIV, 661. each case depends upon its circumstances, XIV, 661. for embezzling overcoats none for same of cloth, XIV, 657. forgery of note and of indorsements, XIV, 661. keeping drinking-house and common seller, XIV, 661. passing four forged checks, XIV, 661. shooting intent to kill person and also horse, XIV, 657. test aa to what is same ofEense, XIV, 657, 658, 661. when record proves prisoner did not do act resulting in death, XIV, 659. where same a£i may constitute two offenses, XIV, 657. Former suit, against life devisee, for board, conclusive, against trustee, etc., XIII, 793. how far appeal from judgment prevents operating as, II, 124. when a bar, II, 617 ; XII, 506. ' when one estopped by, though not a party, V, 398 ; X, 663 ; XII, 506. when party in interest notified of suit and to defend, X, 663. when pendency of, in Federal courts bar to suit in State courts and mce mrsa, IX, 858. whether estoppel by, must be pleaded ? XI, 344. See Estoppel^ Fraud, as to responsibility of another, to whom credit given, XIV, 737. but falsity must be known or must have conveyed impression had knowl- edge, XIV, 737. as against assignee, and one innocently, obtaining possession, demand neoes- sary, XIV, 738. and if two of each, XIV, 738. assignee in bankruptcy, XIV, 738. buying property concealing facts inown to affect its value, XI, 484. director purchasing stock under such circumstances, XI, 484. cannot repudiate settlement after suit for, IX, 533. AMEEICAN NOTES. 603 Pbatjd — Continued. evidence carried goods to another store not admissible if purchaser or assignee honest, XIV, 738. honest attempt to continue business, XIV, 735. in replevin what said to other firms refusing to trust not competent, XIV, 737. nor what said to other firms if no sale, XIV, 737. liability of director for issuing prospectus, VIII, 34. may remain silent, XIV, 735. may vendee be asked whether intended to pay 1 XIV, 736. may vendor be asked whether relied on solvency ? XIV, 736. may prove contemporaneous sales, XIV, 736. may prove contemporaneous representations, XIV, 736. but must be near same time, XIV, 738. but not representations not legally/ fraudulent, XIV, 736. but similar frauds not alone sufficient, XIV, 736. mere omission to disclose insolvency not, XIV, 735. otherwise as to banker receiving deposits, XIV, 735. mistakenly identifying one at bank, XIV, 737. no defense by stockholder to call that subscription of others colorable, XV, 530. not bound to tender vendee's note till trial , XIV, 788. one falsely represented responsibility of another representations long be- fore may be proved if part of scheme, XIV, 738. purchase, preconceived design not to pay, XIV, 735. receipt with such design though none at purchase, XIV, 736. design not to pay may be inferred from circumstances, XIV, 736. replevin against fraudulent vendee and assignee, XIV, 738. or any one not bona fide purchaser, XIV, 738. representations long before inducing credit for term, XIV, 738. representations need not be sufficient to sustain indictment false preten- ses, XIV, 736. right to set aside for, may be lost by laches, XII, 103. sudden change in pecuniary condition, XIV, 735, 736. replevin though parted with goods, XIV, 738. what is undue influence 1 XII, 103. — — when agent acts fraudulently with other party, principal not bound, XIV, 776. when gift by husband to wife is, X, 801. when instrument set aside for, on old person or one of weak mind, XII, 101. when legatee required to explain, XII, 103. when parent dealing with child amounts to. III, 186. when purchase by an agent, attorney, broker, personal representative, tenant in common; trustee of property, or person to which he holds such relation, is fraudulent and void, XI, 113. when purchase by directors, trustees and agents is, XI, 483. when failure to disclose knowledge is and when not, X, 484.' when undue influence amounts to, II, 304 ; iV, 710 ; XII, 101. 604 DIGEST OF Fraud — Continued. will when set aside for, IV, 710; XIV, 101. See Directors, Divorce, Mxecutors and administrators, Htisband and 'wife, Negligence, Pa/rol evidence, Princi'pal and agent. Stock, Tenants in cortvmon. Undue influence. Warranty. Frauds, statute of, agreement to lease for more than year and to pay owner expense of repairs, XIII, 500. agreement to pay or transfer in real estate when valid and when not, and when specifically enforced, X, 468. agreement to sell growing hops, XV, 238. agreement to sell growing potatoes, XV, 238. agreement to sell growing mulberry trees, XV, 338. agreement to sell growing crop peaches, XV, 328. agreement to take lease, and to pay back rent, XIII, 500. applying debt in payment, when sufficient and when not, XII, 613. chattel mortgage on trees, XV, 338. contract cannot be partly in writing and partly by parol, 11, 315 ; XII, 217. contract to clear land, XV, 328. contract to cut and deliver wood, XV, 238. entering after time and removing wood cut within, XV, 330. agreement to pay expenses of litigation, XIII, 501. giving note not a sufficient payment, XII, 573. • grass, etc., property of tenant, XV, 228. how far signature of auctioneer or clerk binds parties, XV, 431. how far of broker, XV, 421. how far of sheriff, master, referee, etc., on judicial sale, XV, 421. one party cannot be agent to sign for other, XII, 573. reservation of trees, II, 348 ; XV, 239. reservation of trees to be cut within certain time, XV, 239. reserving building to be taken off, XV, 230. sale of bark on trees, XV. 328. sale of stones picked and piled, XV, 339. sale timber to be cut within certain time, XV, 329. same person may act as agent for both parties, XII, 573. vendee who acts on license not liable, XV, 328. waiver as to time, XV, 330. what conversion and what not, XV, 230. what delivery necessary as against creditors of vendor, XV, 338. what refusal not conversion, XV, 330. when agreement not to be performed within one year invalid, XI, 172. AMEEICAN NOTES. 605 Fkaudb, statute of — Continued. when agreement to indemnify A. for signing as surety for B. is not within, XI, 791. when agreement to pay for support of another not void though not neces- sarily to he performed within a year, X, 468. when applies to promise to pay for goods furnished to another, I, 78. when may refer to several papers, when all together suflScient, and when not sufficient, memorandum, XIII, 581. when sale of standing trees within, XV, 327. See Consideration. Fugitive, from justice, extradition of, VI, 138. G-. Gas company, liability of, for explosion from leak, I, 204. See Assessment and taxation. Gift, by soldiers and sailors, XI, 382. equity will not carry out intent to give, X, 803. if representative receives property given will be held trustee for donee, X, 803. of donor's check or note, II, 893 ; X, 799. right of donee to sue in name of representative, X, 803. what delivery necessary, X, 800. when declarations of donor admissible, X, 803. when deed by husband to wife valid, X, 801.' when deposit to another's credit operates as. III, 718. when husband held to have made to wife, XIII, 715. when not good as between husband and wife, XIII, 700, 833 ; X, 800 ; XV, 760. when valid and when invalid, and requisites of, X, 799 ; XI, 393. See Advancement. Good will, part of assets of a copartnership, IV, 938. See Executors and administrators. Grandchildren. See Advancement. Grant. See Way. Guaranty, amounts to covenant that makes liable, XI, 349. not necessary to prove signature of maker, XI, 349. when guarantor liable though principal not, XI, 348. See Principal and surety. Guardian. See Bona fide. Infant, Parenf and child. Waste. Guilty knowledge, may be found from circumstantial as well as direct evi- dence, XV, 303. 606 DIGEST OP H. Heir, when allowed to recover on note, XIV, 419. when bound to pay mortgage, VII, 736. when representative must pay for real estate to be conveyed to, and to whom deed to be tendered, IX, 743. Highway, what obstruction of nuisance and who may maintain action therefor, XIII, 584. when founderous, traveler may croes adjoining field, IV, 241. when railway may use, how to restore, etc, XV, 253 . would town be liable to one injured? XV, 252. See Easement, Bminent domain. Injunctions, Mandamibs, Homicide, by carelessness, X, 511. killing of oflBcer who came to make arrest, II, 163. negligence or refusal of injured party to submit to surgical treatment no defense, IV, 606. See Jurisdiction, Manslaughter, Murder. Husband and wife, creditor party to dealings between, estopped, XV, 761. dealings between, to be judged by present circumstances, XV, 761. how far husband estopped by acts of wife, XII, 379. how far wife may hold products of farm managed by husband, XIV, 418. husband may, in good faith, settle difficulties between, and pay wife, XV, 761. not good if clearly disproportionate to means, XV, 761-2. 'settlement done away with if settle and cohabit under agreement shall continue, XV, 761. if husband conveys to trustee for wife cannot claim as tenant by curtesy, XII, 383. if husband conveys to wife, good, though she had another husband living, if known to grantor, XV, 762. if wife relinquishes dower, husband may pay her for so doing, XV, 763. otherwisedf done to defraud creditors, XV, 762. note given to third person payable if maltreats wife good, XV, 762. presumption of coercion, how far liable for each other's acts, how sued, execution against, and when wife relieved from execution against her person, XIII, 453. rights of, where land paid for by husband and deed taken to wife, X, 801-2. what is reduction of her property to husband's possession, XIII, 715. when gift by husband to wife valid, and against whom, X, 801-2 ; XV, 760. when husband's declarations admissible, XIII, 715. when husband had not reduced legacy to possession, XIII, 715. AMEEICAN NOTES, 607 Husband and wife — Continued. when husband held to have made gift to wife, XIII, 715. wheu husband may collect debts due wife after her death without admin- istering, IV, 493 ; XIII, 715. when husband obtains title to wife's property, XIII, 833. when not gift as between, XIII, 700, 833. when reduction to possession only proven by wife's admission, !5tlII, 715. See Delivery, Embezzlement, Gift, Ma/rried ipomen. I. Ice, when city liable for injury from, in streets, II, 575. See Negligence. Ignorance of facts, when excuses, XII, 334. Ignorance of law, how far excuses, XII, 384. Illegal, though rules of society are, servant guilty of' embezzlement, XII, 644. Illegal act, not rendered valid by estoppel, XII, 375. Illegal agreement, debtor on compromise agreeing to pay one creditor more than another, XIII, 633. surety may set up this defense, XIII, 633. in restraint of trade, X, 836. relative to illicit intercourse, X, 663. See Bona fide holder, Duress. Illegal insurance. See Insurance, life. Illegal restraint. See Legacy. Illegal use. See Fishery. Illegality, carrier estopped from setting up of contract on which sent, XII, 383. Improvements, when one who enters under agreement for title entitled to if conveyance refused, X, 468. when tenant in common, etc., entitled to and when not, XIII, 14, 650. Income, when one entitled to, does not take money paid for Ibnd and divided among shareholders, XIV, 430. one entitled to, must pay taxes, VII, 737. Increase, to whom dividends of stocks go, XIV, 419. to whom of animals belongs, XIV, 418. Indecent exposure, what is, II, 160. ~~~ Indemnity, how far contribution enforced among wrong-doers, XII, 333-4. how far principal bound to indemnify agent, XII, 333-4. when and how far a contract to indemnify against act legal, XII, 333-4. when contract to indemnify implied, XII, 333-4. See Consideration. Indictment, may contain counts for different degrees, XI, 362. 608 DIGEST OP Indictment — Continued. on indictment for felony may convict of misdemeanor, XI, 363. on indictment for one degree may convict of lesser, XI, 361 See Accompliee, False pretenses, Indorser, not necessary to prove signature of makSr, XI, 349. warrants validity of bill, XI, 349. when liable, tbough maker is not, XI, 847. See Pwrol evidence. Protest. Infant, degree of care required from and whether negligence of parent bar to recovery by, IX, 474. if one having money of, pays on order before countermand, protected, III, 621. infancy of maker no excuse for non-protest of note, XIII, 73. partnership cahnot avoid acts of, XIII, 73. right of legislature fo order sale of his real estate, VII, 639. what contracts of void and what voidable and effect of, XIII, 73. when and how far estopped, XII, 383. when property treated as real and when as personal, IX, 743. See Master and servant. Parent and child, Inferior offense, when defendant may be convicted of inferior offense, XIII, 456. Inhabitant. See Domicile. Injunction, against bridge company not completing, or not building according to plans, etc., XIII, 691. against nuisance, VI, 440. by shareholder to restrain illegal amalgamation of corporations, XTV, 84. in cases of interference with water-course, IX, 556. may restrain suit in another State, IX, 857 ; XIV, 441. municipal corporation delivered bonds to railway company to build road ; may restrain use for any other purpose, or creditor from reaching, XIII, 597. no defense that interest small, IX, 557-8 ; XIV, 84. restraining actor, and specific performance, XI, 807. to control building bridge, XV, 253. to restrain certain erections, alterations, use of property, etc., XIII, 690. to restrain foreign corporation, XIV, 441. to restrain hanging sign over street, XIV, 547. to restrain use of municipal bonds to purpose for which issued, XIII, 597. when issued to restrain trespass, XI, 502. when issued to restrain public officers, XI, 508. when mandatory will be granted and effect of, XIll, 552. when one tenant in common may have against other, XIII, 646. AMEEIOAN NOTES. 609 iNJtJNCTlON — Continued. when will lie to restrain cutting, or from obstructing view by, trees, IX, 825. when will not lie to restrain mere trespass, IV, 724 ; XI, 502. See Corporations, Di/rectors, Executors and administrators. Landlord and tenant. Negligence. Innkeeper, liability of, for ainimals poisoned at pasture, 1, 16 ; VI, 603. , when lien of, extends to property of third person, II, 699 ; XII^, 268. ■, / Insanity, when not defense to divorce, X, 77. '-^ — - '■ ( Insolvency, how far creditor may reach legacy for support of legatee, VII, 604. provision that legacy shall cease on, II, 268. who is and who not insolvent, XI, 43. See JPraud, Legacies, Lien. Insurance, agent of company making out application and insured signing without reading, XII, 383, 860. company accepted abandonment, XII, 383. credit given for premium, XII, 868. though by printed terms policy not to be binding till payment, XII, 863. eflect of war between country of insurer and insured, XII, 863. if building burned before delivery of policy insured not bound to inform insurer, XII, 864. if credit given only for definite time must pay within, XII, 863. if no part of agreement policy not to be binding until payment of pre- mium, cannot insert such clause, XII, 865. immaterial whether suit for damages or specific performance, XII, 864. insured liable for premium moment agreement made, XII, 862. no part of agreement shall depend upon delivery of policy, XII, 864. one interrogatory not answered, XII, 861. parol agreement to insure, binding, XII, 861-2. otherwise of mere preliminaries for agreement, XII, 861. so where terms not agreed upon though agent told applicant might con- sider himself insured, XII, 861. parol waiver of written terms good, XII, 863. recital " signed, sealed and delivered," sufficient to prove, though not taken by insured, XII, 864. remedy against wrong-doer or carrier in case of, and rule of damages, IX, 576. representations as to purposes building used for, XII, 861. representations as to ownership, incumbrances, ejc, XII, 861. right of representatives of debtor to be subrogated to rights of creditor, IX, 576. sickness no excuse for not paving premium, XII, 863, 77 jI 610 DIGEST OP ■fenmsesiow— Continued. single instance of credit sufficient to send to jury, whether credit given, XII, 864. so any circumstances showing waiver, XII, 864. strictness as to representations for life policies, XII, 860. insured though no policy executed, XII, 863. transfer of one partner to another not within clause forbidding transfer^ III, 375. waiver of payment may be established by custom, XII, 864. so by previous course of business, XII, 864< waiver of payment of premium by clerk, XII, 863. what is agreement for credit, XII, 863. such agreement may be inferred from circumstances or raised by implica- tion, XII, 864. so any agreement, XII, 864. what promissory statements are conditions precedent, XII, 860. what representations are warranty, XII, 860. when failure of insured to do certain acts does not avoid policy, XII, 861. when knowledge of agent no defense to representations, XII, 860. when must state all buildings within ten rods, XII, 860. . when not to take effect until making of policy, XII, 863. when parol evidence of information to agent inadmissible, XII, 860. when policy reformed and effect of delay in asking for, XII, 863. when premium not paid but credit given for may pay within reasonable time- after loss, XII, 863-3. when promise to notify insured when ■premium due estops, XII, 378. when specific performance of agreement for decreed, IX, 361. See Parol evidence. Insurance company. See Jurisdiction. Insurance, fire. See Insurance, life. Insurance, life, hy son upon father's life, XV, 839. by sister upon brother's life, XV, 839. by wife on husband's life, XV, 839. whether assignment to one having no interst in life valid, XV, 837. whether one who has no interest in a life can insure it, XV, 837. as to fire policy, XV, 837. Intent, bad intent does not render legal act actionable, VIII, 313. defendant may testify as to, XII, 835. how far criminal requisite of crime, XII, 334 ; XV, 160. if gist of' offense must be proved as laid, XV, 161. meaning of " intentionally," XV, 160. when evidence of commission of other crimes admissible to show, X, 513. See Action, Divorce, Guilty knowledge. Interest, when owner of life estate bound to keep down, VII, 737. when partner not entitled to, on excess of capital, IV, 718. AMEKICAN NOTES. 611 Interest — Continued. when survivor liable for profits or interest, to representatives of deceased partner, IV, 937; X, 634. International law. See Discovery, Fweign sovereign. Intoxication, how far a defense to contract, IV, 504. See Evidence. Inventory, when remainderman required to famish, XIII, 728, 792. See Life estate. Issue. See PresvmpUon, J. Joinder of actions. See Multifdriousnesa. Joint debtors. See Limitations, statute of. Joint wrong-doers, when liable as, and when not, XII, 514. whether master and servant liable as, XII, 544. Judgments, effect of, where no personal service and no authorized appearance, X, 503. See Appearance, Estoppel, Former suits. Jurisdiction. Jurat, when omission of an affiant or officer to sign vitiates, IX, 443. Jurisidction, actionable under laws of country both citizens of, though not of lex loci, XIV, 440. arbitration clause does not divest court of, VI, 800. bigamy in one county apprehended in another, XIV, 643. conspiracy, one residing in county other than where acts, XIV, 643. courts of nations except that of vessels no jurisdiction, XIV, 640. crime in one county accessory in another, XIV, 643. crime in one State when real offender in another, XIV, 643. effect of attachment Without personal service, XV, 370. no action lies on such judgment, XV, 370. false pretenses personal in one county, goods sent by carrier from another, XIV, 641. Federal courts have, if actionable by State statutes, XFV, 440. foreign insurance company required to appoint agent, XV, 371. effect of service on such agent, XV, 371. removal of such cases to Federal court, XV, ,271. forged paper mailed in one county received in another, XV, 641. how far State statute may give lieu against vessels, XIV, 448. of misdemeanor only, XIV, 641. indictment in county to which taken, XIV, 643. injuries received at sea, XIV, 440. laches, may waive in domestic court, XV, 271. larceny at sea, goods taken into another country, XIV, 641. ei2 DIGEST OP JuBiBDiCTiON — Continued. whether applies to larceny in one State, goods taken to another, XIV, 641. larceny in one county, goods taken into another, XIV, 643. may be indicted in either county, XIV, 643. larceny in one county, property received in another, XIV, 643. letter false pretenses sent one county, goods delivered to carrier in another, XIV, 641. courts may appoint trustee to convey, XIV, 441. so to decree execution of trust, XIV, 441. may restrain suit in another State, XIV, 441. new county formed out of territory after crime, XIV, 643. non-resident plaintiff may have attachment, XIV, 440. nuisance in one county affecting residents of another, XIV, 641. nuisance in one State from lands in another, XIV, 440. of courts injuries received and contracts made in another State, XIV, 440. of offenses on board vessels at sea, XIV, 640. of proceedings against vessel by name, XIV, 443. of State courts in suits by assignee in bankruptcy, IV, 775. offense at sea between different parts of county, XIV, 640. one partner no authority to employ attorney after dissolution to confer, XV, 371. one may be authorized to employ for both, XV, 371. over foreign corporations, XIV, 441. party denying must plead fads showing want of, XV, 371. petition altered after signed by sopie, XIV, 590. proof of nationality of vessel, XIV, 640. registered as of nation, owner alien, XIV, 640. removal of such cases to Federal courts, XV, 371. servant received money in one county demanded in another, embezzle- ment, XIV, 643. specific performance, lands in another State, XIV, 441. though discretionary, XIV, 441. so of country where lands situate, XIV, 441. State courts none of lands ceded to United States, XIV, 440. stolen abroad and brought on American ship, XIV, 641. threatening letters mailed in one county, received in another, XIV, 641. to compel foreign executor to account, XIV, 441.- to partition vessels, XIV, 443. to restrain foreign corporations, XIV, 441. want of, in foreign judgment may be shown, though recited, XV, 371. want of, on certain domestic, XV, 371. .oz ■« y -7 y^< when and how far appearance confers, VIII, 489 ; XII, »fk / HS', ^ ^ ~'^^ when courts of one country may decree specific performance of lands in another, IX, 857, when facts conferring, averred, and evidence given upon question, deter- mination conclusive, VI, 348. when may restrain suit in another country, IX, 857. when may show appearance unauthorized, although judgment recites one, X, 503 ; XII, 371. AMElilOAN NOTES. 613 JuBiSDiCTiON — Continued. when none if no personal service, X, 6C2 ; XII, 371. when party estopped from alleging want of, XII, 383. wound in one country, death in another, XIV, 642. See Divorce, Domicile, Lex loci, Service. K. Knowledge, when evidence of other crimes admissible to show, X, 513. See OuUty knowledge. Iiaches, may lose right to set aside instrument for fraud, XII, 103. of drawee to prejudice of drawer, XII, 613. when bars stockholders, XV, 19. when neither failure to object nor delay in suing no defense, XIV, 85, See Acquiescence. Landlord and tenant, damages in action by tenant against landlord, IX, 164. lease upon condition tenant shall occupy personally, IX, 332. when liable for dangerous condition of premises, VI, 185. when tenant guilty of waste in cutting timber, IX, 835. lease one year privilege of two, VII, 134. bridge company did not complete according to requirements of statute or plans, XIII, 691. remedy in such case, XIII, 691. brick and plastering fell, XIV, 497. building fell, XIV, 497. covenant not to under-let broken, XII, 416. drain out of repair, XIV, 496. — how far tenant estopped, XII, 385. if can take boarders they may not carry on dentistry, XIII, 690. injury while on pier, XIV, 497. landlord consents to once underletting discharges covenant, XII, 416. lease of agricultural lauds cannot work quarry, XIII, 690. lease prohibiting alterations, XIII, 690. lessee or grantee continuing a nuisance, XIV, 498. lessee restrained from using for any except specified purpose, XIII, 690. mere recital sufficient to indicate purpose, XIII, 690. no defense such use no injury, XIII, 690. non-repair gutters, etc., XIV, 498. not to build except certain edifices, XIII, 691. privy out of repair, XIV, 496, 497-8. privy where used by various occupants, XIV, 497, procuring appointment of receiver, XII, 416. servant of lessee of ferry injured, XIV, 498. snow and ice falling from roof, XIV, 498. 614 DIGEST OF Landlord and tenant — Continued. statement certain timber to be left, cutting restrained, XIII, 691. tenant restrained from using premises for prohibited business or purpose, XII, 416. two churches built for " divine service " one restrained from using for Sunday schools, XIII, 690. what underletting, XII, 416. when court of equity will relieve tenant from forfeiture, XII, 417. ' when landlord, when tenant, and when both, liable for condition of premi- ses, XIV, 496. when tenant may work open mines, XIII, 690. when notice to comply not waiver, XII, 416. when receiving rent, waiver of forfeiture, XII, 416. when tenant may assign or underlet, XII, 416. See Mxiures, Frauds, statute of, Injunction, Negligence, Bent, Tenants in common, Water-courses. Lands. Se^ Assessment and taxation. Larceny, by servant charging and receiving more than entitled to, V, 403. in foreign country, property brought to this, XV, 740. when finder guilty of, II, 191 ; VI, 333. when one who elopes with wife, taking husband's property, guilty of, II, 176. when secretary of building society not guilty of, XII, 644. See Jurisdiction. Lease, upon condition tenant shall occupy personally, IX, 333. See Landlord and tenant. Sent. Legacy, creditors, how far may reach, II, 368 ; VII, 604; XHI, 738, 798. eflfect of representative wasting personalty, X, 735. how far abates if in lieu of dower, XIV, 337. how suit brought for legacy, X, 735. law presumes testator does not intend to die intestate, X, 734. on condition child shall be brought up by particular person, XII, 136. on condition legatee shall not marry without consent, or shall marry with consent, shall not marry, or shall marry a particular person, a papist, that shall not marry at all, to be paid at discretion of particular person, to be increased at discretion of executor, X, 839 ; XV, 833. on condition shall not contest will, XI, 74. rules for construction of, X, 731. to " children," when means illegitimate, VII, 30 ; XIII, 90. what is an ademption of, VII, 406. when abates and when not, X, 731. when advancement presumed ademption of, XIII, 697. AMEKICAN NOTES. 615 Legacy — Continued. when carries principal as well as income; X, 733, 830 ; XIII, 90. wlien charged and when not upon real estate, X, 731. when deficiency made up from corpus of the estate, XIII, 793. when marshalled in favor of legacy not changed, X, 735. when specific and when demonstrative, X, 735 ; XI, 652. who subscribing witness to will ; when void and when not, XIV, 536. See AdvaTUiement, Oondition, Life estate. Subscribing witness, Will. Legatee, when takes, though erroneously described, I, 360 ; VI, 630. See LegcLcy, WiU. Iiegislature, power to grant divorce or declare marriage valid, XI, 873-4. Letter, contract by, when consummated, V, 693. unanswered on prisoner and written by him, but opened, II, 195 ; II, 333. See Evidence. Lex loci, foreign laws operate only ex comitatm, XV, 307. not enforced! if could better be at home, XV, 307. when court will send trust fund to another country, VIII, 630. when order of arrest allowed in one State against resident of another, XV. 307. when validity of agreement as to statute of frauds applies, XI, 173. See Domicile, Jurisdiction, Protest. IiifaeL See Evidence. License, how far estops party, XII, 378. remedy for injury received while passing under, XIV, 547. vendee who acts under, not liable, XV, 338. when may be revoked, when licensor estopped and when not, IX, 349. Lien, by attorney, II, 638 ; IH, 635. if seller agrees to accept note of third person, not obliged to if fails before delivery, XIV, 751. unless agreed to assume Ask, XIV, 751. though notes not entirely worthless, XIV, 751. of one protecting property found, XIV, 558. vendor has, for purchase price, though credit given, if has possession- when becomes due, XIV, 751. what are maritime, what not, and where and how enforced, XIV, 443. when party estopped from asserting, XII, 378. See Attorney, 616 DIGEST OF Iiife, presumption as to continuance, etc. , XIII, 674. Iiife estate, how far court will control investment, XIII, 794. how far creditors may reach share of person taking, XIII, 728, 793; II, 268; VII, 604. how value of, determined, X, 662. legacy or devise with power to use all pleases, what becomes of what left, X[II, 792-4. legatee has absolute power, XIII, 792-4. but cannot give away or squander, XIII, 794, remedy of remainderman in such case, XIII, 792-4. liability of executor who delivers to ownpr of, XIII, 794. party to have during life, capital to go to children on death, XIII, 728. two inconsistent clauses as to life estate and fee, XIII, 793. when and how far person holding must make and furnish inventory, XIII, 728, 793-4. and when required to give security, XIII, 793-4. ,when entitled to possession and when not, XIII, 793-4. when court will not compel delivery to owner of, without security, XIII, 794 whan ''.eficiency made up from corpus of the estate, XIII, 792. when gift over void and takes absolute estate, XIII, 793-4, when owner of, bound to keep down interest, VII, 737 when widow takes equally with children, XIII, 728. See Income. Iiight, right and remedies for interference ijVih, XI, 532. when cov nant as to, runs with land, XI, 532. See Bay window. Limitations, statute of, whether coupon barred in less time than bond, XII, -535. ' admission given at time of invalid discharge, XIV, 329. by au assignee, etc., XV, 583. cannot revive lien as against subsequent one, XIV, 329. covenant by vendee to vendor, XIV, 328. efieot of, ond when does not bar collateral remedy, I, 422. executors may plead though testator directs them not to do so, XIV, 328 giving note for interest sufficient, XIV, 329. how far payment by one joint debtor will take out of, or prevent running, XV, 582. if making ratified, XV, 583. if one of several conditions broken, commences to run, XIII, 729. if written promise lost, may be proved by parol, XIV, 329, in some States promise to bar or revive required to be in writing, XIV, 326. such statute does not apply to debts not barred when passed, XIV, 326. otherwise if barred when passed, XIV 327. making new note not accepted, XIV, 327. master's report that is an incumbrance, XIV. 328. mere admission of debt not sufficient, XIV , 327. AMEEICAN NOTES. 617 Limitations, statute op — Continued. parol evidence to identify debt, XIV, 329. promise conditional, XIV, 338. must be to creditor or agent, XIV, 328. or party in interest, XIV, 328. promise need not be signed at end, XIV, 329. promise not implied if circumstances repel, XIV, 337. promise to pay out of particular fund, XIV, 388. surety paying money for principal, XV, 583. what required to revive a debt barred when no express promise proven, XrV, 337 what sufficient and what not, XIV, 337. when does and when not run against reversioner, XV, 551. when it begins to run against and in favor of representatives of deceased, Vn, 690. when runs against tenant in common, XV, 552. whether acknowledgment or payment by personal representatives will revive, XIV, 338. whether general assignment or schedule revives, XIV, 328. Lis pendens, binds purchaser, XII, 385. Iiost 'will, how established by copy, XIV, 586. how loss of will shown. V, 533. Lunatic, when property treated as real and when personal, IX, 743. M. Machinery. See Accident, Negligence. Mail, in whom title of bill of exchange sent by is, VUI, 704. See Jurisdiction, Letter. Maintenance, when parent or guardian allowed for, 1, 436, III, 735 j V, 635. Malice, legal meaning of, I, 408 ; IV, 223. meaning of " maliciously," XV, 160. Mandamus, by one director to obtain knowledge of acts of co-directors, XIII, 757, to compel bridge company to complete bridge according to statute, XIII, 691. to control building bridge, XV, 353. when lies to compel corporate election, VII, 585. when lies to compel restoration of corporator, IV, 43 ; X, 385. Manslaughter, by abandoning or allowing child to starve, XIII, 435. by carelessness, X, 511. Se& Accomplice, Homicide, Jurisdiction, Fa/rent omd child. 78 618 DIGEST OP Manure, when passes as fixture, and wteii not, XIII, 15, 19. Marriage, after absence of former husband or wife, XIII, 678. between Indians, slaves, Mormons, insane persons, and under duress, XI, 713 contract in verba de presenti, XI, 713. contract per verba defuturo, XI, 712. bow proved,' XI, 713. illicit cohabitation, XI, 713.- what proof sufficient to show, XI, 713-3. what sufficient to rebut inference of, XI, 718. when and how proven by circumstances, cohabitation, etc., XI, 711. when attempt to prove at one time precludes showing at another, XI, 713. when may be inferred after impediment removed, XI, 713-3. when secon^ marriage void and innocent party may marry, XI, 713 See Divorce, Lex loci. Presumption Married vroman, how far may hold products of farm managed by husband, XIV, 418. how far she or husband estopped by acts of other, XII, 379, 380.' presumption of coercion by husband, 11, 186 ; XIII, 453. surety of, liable though she is not, XI, 347. to whom property goes on her death and how, XI, 619. when husband takes estate as tenant by courtesy, XI, 619. when not liable for property purchased by husband though used on her real estate, V, 159 Bmbezzlement, Huiband and wife. Marshalling securities, I, 684. on behalf of legatees, X, 735. Master and servant, act of servant not within employment, XII, 339. command of master no justification of wrong, XII, 544. letting bale of goods roll against passer-by, XIV, 547. liability of master for servant throwing ice from roof, XIV, 547. master allowing servant to starve, XIII, 436. when giving servant part of profits does not make partner, XIII, 839. when master liable for acts of servant and when not. III, 813 ; IV, 393 ; IX, 333-5; XII, 339. when servant liable for embezzlement, though charges and receives more than directed, V, 403. when servant may recover of another company guilty of negligence, X, 514. whether liable jointly for tort, XII, 544. See Embezzlement, Negligence, Parent and child. Principal and agent Bodlway company. AMERICAN" NOTES. 619 Medical and professional books, how far may be read and used, XIII, 429. Medical society, when member of, improperly expelled and how restored, IV, 43; X,385. Member, of voluntary society, remedy if improperly expelled, IV, 43 ; X, 385. Memoranda, after witness swears to transaction, cannot corroborate by memo- randa, XV, 372. so if recollects material part of transaction, XV, 873. recollects substantially of in substance, XV, 373. auxiliary to and not substitute for oral testimony, XV, 373. by agent to collect rents, XV, 371. by public officer. XV, 371. embodying only result of different language, XV, 373. entries by discount clerk alive and in State, XV, 373. entries made by deceased persons in course of professional and official engagements, XV, 371. though only evidence as to what did tliemselmes, XV, 371, entry made and read over to other party, XV, 373 entry made, but not read to other party, XV, 373. figuring, XV, 373. how to be used if witness cannot read, XV, 3'''0. if counsel who kept, dead, inadmissible, XV, 371 if used, opposite party may inspect, XV, 370. if witness knew to be correct and cannot remember facts, may read it, XV, 370. inadmissible to prove inference, XV, 371. may corroborate conductor by time table and entry, XV, 371 minutes testimony deceased witness, XV, 371. though if can recollect, may testify, though kept no minutes, XV, 371 must be necessity for referring to it, XV, 370. must verify writing as own, XV, 372. one tells another, who makes, how proven, XV, 371. testimony from bill of exceptions, XV, 371. when and how far witness may refresh memory by, XV, 370. Mines. See Landlord and tenant, Water and water-courses. Misdemeanor, on indictment for felony may convict of, XI, 363, See Indictment. Ifflistake, alteration by, XIV, 588. delivery to fictitious person by carrier, X, 37. devise of land, sold and mortgage taken on supposition devisee would take that, XIII, 699. if so signs wrong paper or will invalid, XIII, 475. in wills cannot be corrected, VI, 631, parol evidence to show m will, XII, 21. sale of property not in existence, X, 115. when specific performance not decreed on account of, IX, 361, See Alteration, Mnbezzlement, Parol evidence. 620 DIGEST OF Money had and received, subsequent assignee when liable to surety for prior debt, XIV, 268. Mortgage, agreed should stand for new loan more than face, XII, 616. equity will enforce agreement to give, XII, 616. otherwise if nothing further intended, XII, 616. cannot be e3;tended by parol nor if paid can it be continued or j-evived by parol, XII, 616 ; XVI, 276. coupons secured by though separated from bond, XII, 536. how far mortgagee in poBsessiou estopped, XII, 385. on real estate, what are not fixtures, V, 246 ; X, 606. remedy if representative improperly pays, VII, 736. to secure future advances, XII, 616. when coupons so far paid that not secured by mortgage, XII, 587 ■ when heir and when representative bound to pay, VII, 786. when mortgagee bound by right of burial, XII, 665 . when several notes, secured by, transferred to different persons, how apportioned, XII, 536. how such mortgage foreclosed, XII, 537. See Arbitration, Cliattel mortgage. False pretenses. Fixtures, Tenants in common Mortgage foreclosure. See Resale. Motion. See Service. Motive, bad motive does not render legal act actionable, VIII, 313. when evidence of other crimes admissible to show, X, 512. Multifariousness, what causes of action may be joined and when personal representative proper party, XI, 672. Municipal corporation, delivered bonds to railway company to build road , may restrain use for any other purpose, or creditor from reaching, XIII, 597. how far liable for acts of contractor, IX, 223. how far liable for acts of oflBcers and agents, IX, 223. how far officers of, liable, IX, 15. liability for diverting water from river to injury of commerce, IX, 726. liability for negligence of firemen, IX, 225. ordinances as to burial, XII, 666. ordinance or contract must strictly conform to charter, VI, 18. when city liable for ice or snow in streets, II, 575. when liable to one injured by falling of ceiling council chamber,- XIV, 497. when officer of, cannot contract with, IX, 374. See Bona fide holder, Bonds, City, Negligence, Ordinances, AMERICAN NOTES. 631 Murder, abandoning or allowing child to starve, XIII, 425. by carelessness, X, 511. negligence of or refusal by injured party to submit to snrgical treatment no defense, IV, 606. " of officer " who came to make arrest, II, 163. wound in one country, death in another, XV, 740. See Accomplice, Homicide, Jurisdiction, Manslaughter. Mutuality, when contract mutually binding, VII, 134. N. Navigable river, right of riparian proprietor in, and to water in, X, 24. right to use, for sewerage, X, 35. See Municipal corporation, Rivers. Negligence, another paper fraudulently substituted, XII, 630. backing car against one, XIII, 348. blanks left in check or other commercial paper, XII, 638. boat lost in storm from not sending soon enough, XIII, 53. iona fide holder negotiable paper may collect, though person procuring, punishable criminally, XII, 639; - byagistorof cattle, XV, 199.^/^, W^ O/^^J. by attorney to whom collection agency sends note, SIII, 560. by child, and whether of parent bars action, IX, 474. by manufacturer of boiler or machinery, XIV, 558. by party injured, or refusal to submit to surgical treatment, no defense to indictment, IV, 606. by trick induced to sign different paper than read, XII, 630, 631. city not liable for falling snow or ice, XIV, 547. nor for sign falling, XIV, 547. nor can hanging of sign be restrained, XFV, 547. owner of building liable in such cases, XIV, 547. so if ice thrown from roof by servant, XIV, 547. as to criminal responsibility for so injuring, .XIV, 547. condition attached to note or obligation which could be and was detached, XII, 639, 630. criminal, resulting in death, X, 511. duty of servants of company to assist lady, XII, 306. exposing poisoned plants to animals, 1, 16 ; VII, 603. fraudulently stated paper to illiterate person, XII, 630. how much proof of, required, IX, 475. in blasting rocks, XIV, 558. injuring ono passing over by license, XIV, 547. • letting bale of goods roll against passer-by, XIV, 547. •money stolen from private agent, XIV, 558. •not protecting from circular saw, XIV, 558, 622 DIGEST OF Negligence — Continued. of contractors in burning brush, XIV, 547. of owner in setting fire, XIV, 547. old lady got off cars, wandered about, returned and fell down steps, XIV, 546. one moving stepped into stove-pipe hole, XIV, 547. one properly on company's grounds injured, XII, 306. one went to collect bill and fell into vat, XIV, 546. one went to inspect sewing machine and fell through trap, XIV, 546. one went to neighbor for oats and while walking about fell through hole, XIV, 546. one injured who went as escort to a lady, XII, 306. owner of vessels not washing cups of poison used by health officers, XIV, 547. paper cut apart to make negotiable note, XII, 639. part of note written in pencil, XII, 638. party injured must lessen damages if can, XIII, 53. party prevented from reading paper, XII, 631. presumption as to which occupant guilty of, XIV, 546. public officer losing money, XIV, 558. relative duty of landlord and tenant, XIV, 545. signature obtained and note written over it, XII, 631. signed note never delivered, XII, 631. signing paper with blanks, XII, 639. signing paper without reading, XII, 638. but holder must be bona fide, XII, 638. and must be commercial paper, XII, 638. unless fraud, etc. , bound to know what signs/ XII, 638. except as against person improperly procuring, XII, 638. trap-door not closed at night, XIV, 546. two bills, one altered and sold, XII, 638. two railways guilty of, V, 343. visitor injured from trap-door being left open, XIV, 545. when one party chargeable with that of another with whom riding, etc., XII, 514. when second fire not result of first, XIV, 547 when servant may recover of another company guilty of, XII, 514. when stepping on or off car in motion is, XII, 306. See Accident, Animals, City, Corporatioris, Directors, Landlord and tenant, Master and servant. Municipal corporation, Parent and chUd, Railway company. Water and water-courses. AMEKICAN NOTES. 633 Negotiable, when oonds, etc., are, and when not, XIV, 610 Negotiable instruments. See Bills of exchange. Bonds. Nevr trial, when not granted in cases of penalty or hard actions and when damages too small, XI^ 148. Non-resident, railway company not of town through which track runs, XV, S42. See 'Corporations, Domicile, Insurance, Lex loci. Notice, does not operate as estoppel, XII, 37C. officer of corporation issued check payable to self „ XIII, 39. one whose duty to keep water-course clear must clear it within reasonable time without notice, XIV, 543, subscribing witness not chargeable with, XII, 380. what sufficient, of suretyship, XI, 41. what sufficient to put upon inquiry, IX, 114. when and how far party employing agent, attorney or counsel chargeable with notice of facts known to him, XIII, 774. when member of society entitled to, and hearing before expulsion, X, 385. when non-production of paper is, IX, 115. when one purchaser a partner, is if other director, XIII, 39. when one who has of papers bound to tOike notice of contents, IX, 115. when party estopped from asserting recorded lien, XII, 878. when purchaser not bound by constructive, IX, 115. when son cannot, by notice, revoke agreement to pay for father's support, . n, 674 when surety cannot terminate liability by, VII, 433. when the fact that party is improperly dealing in his own behalf appears / /See Bonafiae, D Bonds, Executors and administrators. Intent, Trusts and trustees. Novation, when acceptance contract of corporation is of one by promoters, XV, 281. Nuisance, diverting waters of river to injury of "commerce, IX, 736. from fouling of rivers or water-courses, IX, 736. in cases of interference with water-course, IX, 556. in one State, land in another, XIV, 440. one who encourages improvement estopped, XII, 378 restraining burials as, XII, 667. what is, and remedy against, VI, 440. what obstruction of highway, is, and who may maintain action thenef or, XIII, 584. 624 DIGEST OF Nuisance — Continued. what obetructiona of river not actionable, IX, 530. See Injunction,' Landlord and tenant, Municipal corporations, Rivera, Water-courses. Nunc pro tunc, when judgment so entered, XII, 519. o. Octan. See Jurisdiction, Officer, how far estopped, XII, 385. killing of, while making arrest, II, 163. negligence in losing money, XIV, 558. protected if acts under altered process, XIV, 590. when cannot contract with corporation, IX, 374. when contract purports to be by as and when not, IX, 15. when liable on contract and when not, IX, 14. See Domicile. Election, corporate, Embezzlement. Principal and agent. Onus, upon whom is, of explaining alteration, XIV, 585, 590. See Evidence. Presumption. Option, which party has, XII, 296. Ordinances, as to wooden and other buildings within fire limits, XII, 228. cannot have extra-territorial effect, XII, 236. certain persons not to be out after certain hour, XII, £37, 229. , forbidding sale of liquor, XII, 227. hoistways in stores, XII, 227. how passed, XII, 226. may require payment expense of license, XII, 229. must be reasonable, XII, 227. passed by one branch one year and another next, XII, 226. prohibiting associating with thieves, etc., XII, 229. prohibiting cars standing across street, XII, 227. publication, when required, how proved, XII, 226. rate cars shall run, XII, 227. rate of driving, XII, 337. regulating markets, XII, 327. regulating weight and quantity of bread, XII, 337. relating to bay windows, XII, 227. violation of, when not a crime, XII, 239. what business may be prohibited, XII, 229, what must be shown to warrant conviction, XII, 326. AMBEIOAN NOTES. 625 Ordinances — Continued. what valid and what Invalid, XII, 326-330. when cannot imprison for violation of, XII, 239. when city may add to statute penalty, XII, 337. when conflicts with statute, XII, 337, when livery stable prohibited, 2ill, 239. when, may be oflense against statute and ordinance both, XII, 337. when may demolish wooden buildings under,' XII, 329. when must show publication of, XII, 237. when owner of hack not liable for conduct of driver, XII, 339. when violation of, misdemeanor, XII, 338, 339. whether may arrest for violation, without warrant, XII, 337. See Municipal corporation. Ovhier of real estate. See Landlord and tenant. . Ownership. See Embezzlement. Oysters. See Fishery. P. Parent and child, consideration of agreement to pay for support, II, 674. legacy given on condition child shall live with person designated, XII, 126. negligently abandoning child or allowing to starve, XIII, 435. parent dealing with child, III, 186. power of court to restrain parent, XII, 123. validity of parent's contract giving away child, XII, 135. what court may do as to support of, after judgment of divorce, XII, 126. when agreement to pay for support of, valid, though not necessarily to be performed within a year, X, 468. when court will not allow child to be taken beyond its jurisdiction, XII, 126. when parent allowed for maintenance, I, 436 ; III, 735 ; V, 635. when parent guilty of manslaughter, not caring for child, XT, 166. whether negligence of parent bar to recovery by child, XI, 474. which parent entitled to custody of, remedies to obtain, and law of, IV, 267; VI, 558; XII, 138. See Domicile, Infant, Master and servant, UTegligence. Parol evidence, action against telegraph company, original dispatch must be produced, XII, 243. agreement to waive protest, XII, 246. agreement to waive " demand," XII, 346. all now " occupied," to show what was, Xll, 248. as to agreement part of bill of lading, XII, 247. between indorsers, how to be held, XII, 345. so that indorsed as evidence of payment and not to become liable, XII, 245. body of note varied from figures in margin, XII, 242. 79 626 DIGEST OF Pabol EvroBECB — Continued. cannot presume agreement was in writing, XII, 342. capable of two meanings, may show surrounding facts, XII, 345. but not negotiations, XII, 341, 343, 345. collateral to "liability," to show what, XII, 248. consideration, varying by, XII, 349. contracted personally, to show did in fact as executrix, XII, 244. conversation to show what trees intended by other trees, XII, 347. conveyance as tenants in common meant to be as partners, XII, 344. how far admissible to aid in construction of will, VI, 631. how far indorsement by sheriff on execution of time of receipt conclusive, XIII, 787. how much proof of loss necessary, XII, 350. if to pay on delivery of all, not to show on delivery of part, XII, 344 instrument delivered as escrow, XIII, 788. interest of owner of trees, XII, 348 may show parol reservation of crops, XII, 347. may show parol reservation of manure, XII, 347. may show parol reservation of, upon lease, XII, 347. otherwise as to fixtures, natural products, etc., XII, 347. which must be with all formalities of conveyance of land, XII, 347. and must be recorded, XII, 348. not admissible to contradict record, XII, 343. even though amended, XII, 343. not admissible to show proceedings of common council of city, XII, 343. so doings of directors of corporation, XII, 343. not admissible to show satisfaction of judgment, XII, 243.. nor to show record, as that party indicted, XII, 343. but proper to show witness inmate of State prison, XII, 343. BO to add to written examination before magistrate, XII, 343. not admissible to vary description, if clear, XII, 248. otherwise if vague or uncertain, XII, 348. of covenant fraudulently omitted, XII, 341. of negotiations improper, XII, 341, 343, 345. of practice to deliver to next carrier, XII, 347. of waiver of protest, may be inferred, XII, 346. of what testator usually called "Ashford," XII, 248. one construction legal, one illegal, XII, 245. otherwise where clearly illegal, XII, 245. if legal may show illegal use intended, XII, 245. so if capable of two meanings, XII, 245. only part of contract reduced to writing, XII 341. paper delivered as mere receipt or memorandum, XII, 247. unless complete contract, may show warranty, XII, 247. otherwise when receipt expresses terms of contract, XII, 247. though receipt in full may be avoided for fraud, XII, 247. parol extension of time, XII, 249. presumption if agreement on one side in writing that other side is also, XII, 242. AMBEICAN NOTES. 627 Parol bvidence — Continued. principal, when surety may show he is, XI, 41. printed particulars of auction, parol statement of auctioneer, XII, 344. proof of loss, how much necessary, XII, 250. property to " account for " on demand, XII, 248. question of fact whether all reduced to writing, XII, 841. sale to diflFerent person than shown by writing, XII, 247. sale, not to show bailment intended, XII, 244. BO in any clear case, XII, 244. subsequent to parol agreement varying written, XII, 245. to add to, to show mistake in, or to construe wills, XII, 21. to contradict date, XII, 249. but not to supply date, XII, 249. to contradict note by showing intended as advancement, XIII, 700. to contradict what implied by written agreement, XII, 246. how such agreement to be set up, XII, 246. to correct description of property incorrect in some particulars, XII, 248. so incorrect as to place of, XII, 248. to deliver 1,000 tons per year, XII, 244. to indorse note, as to how to be indorsed, XII, 345. so to show indorsed only to transfer title, XII, 246. to ingraft condition as to payment or writing, XII, 343. to renew note, XII, 243. but parol executed agreement to vary admissible, XII, 343. to ingraft new terms without consideration, XII, 249. to explain entries in book, XII, 345. to explain meaning of " accident," XIV, 556. to explain uncertain contract, XII, 244. to identify debt rgvived, against statute of limitations, XIV, 339. to identify demand referred to, XII, 248. to pay certain sum, may show to be paid in merchandise, XII, 244. to pay on finishing house, cannot show lumber not used on house, XII, 344. to prove has lost written revivor of debt, XIV, 329. to publish " card," to show what agreed upon, XII, 348. to reform deed to show certain lands excepted, XII, 348. otherwise when question arises collaterally, XII, 348. to show agent's authority may ^how executed similar papers without pro- ducing, XII, 249. so to combination between witness and others, XII, 249. how far rule applicable to third persons, XII, 250 to show day trial took place, XII, 243. to show deed intended as mortgage, XII, 346. though this rule does not apply to o£Eicial conveyance, XII, 346. such evidence should be clear and explicit, XII, 246. to show deed not intended to carry to center of highway, etc., XII, 346. to show fraud, however solemn instrument, XII, 849. to show grantor agreed to pay certain incumbrances, XIJ, 243. to show grantor agreed to pay taxes, XII, 343. to show ignorance, and as to what supposed, XII, 846. 628 DIGEST OP Parol evidence — Continued. to show instrument not intended to become operative, XII, 344. to show insured agreed to stop using fire place, XII, 244. to show insured knew property mortgaged, XII, 349. to show money intended as advancement,, XIII, 697. in Kentucky not, XIII, 699. to show meaning of words, XII, 242-3. or particular brand of lead, XII, 243. to show mere memorandum, and not contract of sale, XII, 344. to show mistake, XII, 249. to show mortgage for certain sum collateral to note, XII, 346. to show note for machine to be paid if worked well, XII, 343. to show partial failure of consideration, XII, 241. to show partnership, through written articles, anless latter subject of ac- tion, XII, 347. to show place of delivery if not specified, XII, 348 . or time, XII, 249. to show tjiat according to custom sale by sample, XII, 241. to vary carrier's tickets, XIV, 275. -, , thoiSrnot to show no consideration, as may sue for that expressed, X thoi^ir not to show no consideration, as may sue for that expressed, XII, 349. two routes for shipping, XII, 349. usage insured may pay after day, XII, 249. varying written contract by subsequent parol agreement, XII, 245. waiver of forfeiture, XII, 249. waiver, by indorsee of note, of protest, XII, 345. waiver payment insurance premium, XII, 249. See Etidenee, Insurance. Parties. See Multifariousness, Stockholders, Trusts and trustees. Partition, jurisdiction to partition vessels, XIV, 443. of personal property between tenants in common, XIII, 646. plaintiflF must have possession to maintain, HI, 695. when one tenant in common allawedsjpr Knt or improvements, XIII, 648= Partnership, continued, presumed on same terms, XIII, 537. one partner purchasing property, XIII, 537. direction in will for representatives to continue, II, 141, effect of one being infant, XIII, 73. for what survivor bound to account, IV, 938 ; X, 634. one member of, as director, lends to firm, and funds mixed with firm as- sets, XIII, 759. remedy of creditor against survivor, X, 634 survivor purchasing assets, X, 634. when directors and stockholders of corporation liable as partners, XII 154. AMEEICAN NOTES. 639 Pabtnbbship — Continued. when giving servant or agent part of profits does not make him partner, XIII, 839. ■when one may employ attorney after dissolution, XV, 271. when one not properly expelled, for want of notice ; so when not bona fide; how restored, X, 385. when one partner entitled to interest on excess of capital, IV, 718. when survivor liable for profits or interest to representatives of deceased, IV. 927 ; X, 634. See Executors and administrators. Replevin, . Stockholders, Tenants in common. Pass, liability of carrier to one riding on, IV, 220 ; XII, 373 ; XIV, 275. Patent, agreement to assign future, good, XII, 846, notes given for. Bee Negligence. Pauper, agreement by father or husband to pay for support of wife or child, II, 674 See Frauds, statute of. Payment, to mortgagee who does not produce bond and mortgage, IX, 115. to one producing note, IX, 115. to representative before appointment, XIV, 419. See Apportionment, Bona fide holder. Executors and administrators. Frauds, statute of. Limitations, statute of. Novation. Penalty, when may recover more than penalty of bond, IV, 353 ; VIII, 431. when new trial not granted in cases of, or when damages too small, XI, 148. Pending, action is, till satisfied, XV, 592. _ Per capita. See Advancement. Performance, how far excused by accident or inevitable accident, X, 117 ; XIV, 558. if refuses to perform, may sue at once, 1, 325. See Arbitration, Insurance, Lien. Peijury. See Enidenee. Personal estate, when property treated as, and when as real estate, IX, 743. Per stirpes. See Advancement. Plea, how more than one plea filed in criminal case, XIV, 663. Pleading, how alteration should be pleaded, XIV, 590. See Jurisdiction, Tenants in common. 630 DIGEST OP- Precatory trust, when words of a will create, X 740. Precedent debt. See Bona fide holder. Presumption, after reasonable time principal learns of and ratifies agent's acts, IX, 233. as to death, when arises, T, 467; XIII, 676. as to survivorship, XIII, 679 ; XIV, 648. as to what is and what not advancement, XIII, 697. as to which of several connecting carriers lost or injured property, XI, 133 how the fact shown and upon whom onus, XI, 134.' continuance of life, of death, when occurred and how overcome, XIII, 676. contracts with reference to open, visible easements, XII, 258. custom if of length of standing, parties presumed to know, XIV, 310 when parties presumed to contract with reference to, XIV, 310. from recording deed, that was delivered, XII, 384. how far that director knows contents of minutes of proceedings, XIII, 757. if agreement on one side in writing, that other side is also, XII, 343. instrument in hands of third person, is an escrow, XIII, 788. party alleging so delivered must show, XIII, 788. law presumes resides where found, XV, 740. old settler does not know that does not reside there, XV, 740. marriage after absence, XIII, 678. none as to which, landlord or occupant, guilty of negligence, XIV, 546. of coercion of married women, II, 186 ; XIII, 453. residence once shown, that continues, XV, 740. testator does not intend to die intestate, X, 734. that appearance by attorney is authorized, X, 502. that every married person has issue, XIII, 677. that if partnership continued is on same terms, XIII, 537. that one intends ordinary consequences of his acts, XII, 334. that one occupies as assignee of lease, XV, 745. , that shipper consignee's agent to make special contract, XI V, 276. that state of facts once proved to exist, continues, IV, 37. when corporation has power to do act, that lawfully done, IX, 255. when, of death arises fron; absence, circumstances, etc., XV, 648. when none that agreement in writing, XII, 242. when of death rather than of crime, XIII, 678. when that woman will have no children, XIII, 677. whether letters testamentary presumptive evidence of death XIII 678. See Alteration, Evidence, Parol emdence. Merit. Priest, rights of, on disturbance of meeting, XIII, 382. Principals. See AceompUce. Principal and agfent, agent for discount altering note, XIV 589 agent received money as such, estopped, XII, 383. general authority in officer to issue checks, issued one payable to self, XITI, 39. AMERICAN NOTES. 631 Pbincipai, and agent — Continued. how far principal liable for fraud and other acts of, IX, 332. money stolen from agent, XIV, 558. must purchase in name of principal, X, 576. one who acts as agent estopped from denying, XII, 383. when agent acts fraudulently with other party principal not bound, XIV, 776. when cannot act for both parties, be buyer and seller, and duty of prin- cipal on discovery of facts, X, 576. when giving agent part of profits does not make partner, XIII, 839. when may recover value of one's property used for benefit of principal, • X,576. when principal liable though not named, IX, 16. when undisclosed principal liable. III, 328 ; IX, 16. See Agent, Directors, Pramda, statute of. Indemnity, Insurance, Limitations, statute of. Notice, Parol evidence. Stock. Principal and surety, alteration by principal, XIV, 589. arrangement with surety's assent, XI, 45. arrangement, surety indemnified, XI, 45. n-- creditor attaching or levying upon property and releasing, Xilt46-47. tX creditor gave note to principal and he misled surety, XI, 45. ^ -" creditor induced principal not to pay, XI, 44. creditor misleading surety, XI, 44. creaitor taking interest in advance, XI, 45. creditor agreeing for usurious Interest, XI, 45. debtor agreed to keep money and pay interest, XI, 46. debtor agreed to pay interest on interest, XI, 46. extension of time by award, agreement, etc., XI, 46. mere indulgence will not discharge surety, XI, 43. surety may defend on ground note given to secure one compromising cred- itor more thail others, XIII, 622. surety not released "by discharge of principal in bankruptcy, XII, 711. nor will proceedings against surety be delayed by bankruptcy proceedings, XII, 711. what notice to creditor of suretyship, XI, 43. what waiver and what not of discharge, XI, 47. when agreement to give time discharges, XI, 44. when arrangement by creditor discharges, XI, 44. when surety liable though principal not, XI, 347. when surety may show by parol is such, XI, 41. 633 DIGEST OF PkincIpal and surety — Continued. when surety requests creditor to collect, XI, 43. See Duress, Limitations, statute of. Privity. See Arbitration, Principal and surety. Proceeds of property, when may be followed in equity, XII, 719. Profits, when. surviving partner charged witb, IV, 927 ; X, 634, XV, 508. .' *./^L^ '^^^^^^^gii^er^tsr^^^f^ ^^^^ ^^^- Partne/rshi'p. Prohibition, writ of, when issued, and office ol, XIII, 575 Promissory notes, whether another signing as maker is an alteration which avoids, XIV, 587. See Bona fide holder, Indorsee, PriTioipal- and surety. Protest, Warranty. Property, when proceeds of, may be followed in equity, XII, 719. Prospectus, liability of director for issuing, VIII, 34. Protest, maker lived out of State when given, XIV, 347. maker moved from State after bill given, XIV, 347 payable at particular place, no matter where lives, XIV, 347. then even personal demand elsewhere Invalid, XIV, 347, to be governed by law at place of payment, XIV, 347, days of grace also, XIV, 347. when plea not duly presented valid, XIV, 347. See Indorser, Parol evidenoe. Public meetings, rights of those calling, and remedies for disturbance of, XIII, 383. Q. Quarries. See Landlord and tenant. R. Railttray company, how much land may take and necessity for, X, 56. liability for injuries to boy jumping on car, IX, 324. liability of, for not restoring stream, XV, 353. must not needlessly injure trespasser, IX, 324. restoring highway too near own track, XV, 253 rolling stock of personal property, V, 346 ; X, 606. two guilty of negligence, V, 343. what conductor must allege and prove in defense. III. 318. AMERICAN" NOTES. 633 Eailway coStPANY — Continued. when liable for acts of servants, III, 313 ; IV, 392 ; IX, 324. when liable to one riding on pass, IV, 220 ; XII, 273 ; XIV, 275. when may use highway, XV, 252. must restore its usefulness, XV, 252. must keep bridge over in repair, XV, 253. would town be liable to one injured ? XV, 253. See Act of Ood, Assessment and taxation, Ga/rriers. Eminent domain, Rape, contradicting prosecutrix's denial of connection with others, I, 236. how far idiocy of prosecutrix a defense, VII, 333. when want of understanding, from youth, no defense, IV, 516. Ratification, act of attorney by silence, XII, 146. what not of an alteration, XIV, 590. what of illegal bonds, XIV, 611. whether of forgery binds party, XII, 376. See Limitations, statute of, Principal and agent, Principal and surety. Real estate, when property treated as, and when personal, IX, 743. when representative must pay for, IX, 743. See Assessment and taxation. Frauds, statute of. Reasonable doubt. See Accomplice, Evidence. Receiver, two appointed, first in last suit, XIV, 83. when contempt to sue, XIII, 809. See Bent. Receiver stolen goods. See Jurisdiction. Record, how accuracy of copy overcome, XIV, 586. when alteration requires explanation, XIV, 586. when party estopped from asserting recorded lien, XII, 878. when recording deed delivery and when not, XII, 384. Release, when cause of action accrued, can only be discharged by receipt of something in satisfaction, XIV, 85. Religious society, rights of those attending meeting and remedies for dis- turbance of, XIII, 382. See Burial. Remaindennea, when statute limitations runs against and when not, XV, 551. See Life estate. Rent, assignee of lessor may recover all subsequently due, XV, 746. assignee in possession liable, though gives mortgage, XV, 746. assignee liable for all rent falling due after assignment, XV, 745. though not for rent of new story, XV, 745. 80 634 DIGEST OF Bent — Continued- executor, receiver, assignee, etc., occupying liable personally for, XV, 745. so in representative capacity, XV, 745. rule as to amount for wliich liable, XV, 745. may notify lessor and surrender wlien only liable to extent of assets, XV, 745. liability ceases as soon as assigns and surrenders, XV, 745. if assignor reserve single day, assignee is under-tenant, XV, 746. though one taking entire term by lease is assignee, XV, 746. mortgagee without possession not, XV, 746. rent due does not pass by assignment of lease, XV, 745. otherwise as to rent to become due, XV, 745. under-tenant not liable, lessee is, XV, 745. law presumes in as assignee, XV, 745. if in as assignee owner cannot recover for use and occupation, XV, 745. •but complaint may be amended, XV, 745. when assignee assigns and surrenders, ceases to be liable, XV, 746. though original lessee cannot relieve himself by assignment, XV, 746. See Apportionment. Repeal of statute, abates prosecution under it, VI, 88. Replevin, lies, though parted with goods, XIV, 728. one partner cannot maintain against other, XIII, 646. damages in such cases, XIII, 649. rights of tenants in common in as against each other, XIII, 646. See JBh-aud. Res adjudicata, party in interest notified of action and to defend, X, 662. when former suit a bar, II, 617. when one bound by a judgment though not a party thereto, V, 298 ; XU, 506. See Estoppel, Former suit. Res gestae, what is, IV, 519. Reside, when and upon what principles ordered and effect thereof, XIII, 628. Rescission, not bound to tender vendee's note till trial, XIV, 728. See Fraud, Sale. Reservation. See Basement. Frauds, statute of. Residence. See Domicile. Restraint of trade, when contract legal and when not, X, 836. Reversioner, when statute limitations runs against and when not, XV, 551. See Life estate. Revocation, of agreement to pay for father's support, II, 674. of deed delivered in escrow, XIII, 787. of will, what is, V, 532. AMEEIOAK NOTES. 635 Rivers, as to accretions of, XI, 118 ; XIV, 386. change of bed, XIV, 386 fouling of, by city sewers, IX, 736 liability of city for diverting water to injury of commerce, IX, 736. " only navigable in times of fresbets, XIV, 386. riglits of public and adjoining owners in, X, 34. ; XIV, 386. rigbt to use for sewerage, X, 35. what obstructions of, not actionable, IX, 530. See Oysters, Water-courses. s. Sailors, gift by, XI, 393. nuncupative wUls by, XI, 393. ' Sale, by fraudulent vendee, XII, 615. implied warranty on executory, XII, 456. of goods to arrive, I, 46 ; X, 115. of property not in existence, X, 116. when must offer to return, on executory. III, 193 ; XII, 456. with right to return if not satisfactory, 1, 148 ; XII, 457. remedy of seller in such case, XII, 457. See Parol evidence. Warranty. Satisfaction, recovery of judgment against one wrong-doer not. III, 390. See Release. Scienter, by putting horse among cattle, XV, 199. See Animals. Sea, ^itle by alluvion, accretion or avulsion, XI, 118 See Jurisdiction. Seal, effect of, upon contract, X,-663. Security. See Life estate. Seduction, when action lies and in whose favor, II, 683. Self-defense, when homicide is not in, II, 163. Service, action pending till judgment satisfied, XV, 593. effect of judgment when service is not personal and no appearance, X, 503. how to be made on convict, XII, 690. if jurisdiction obtained, subsequent mere matter of practice,- XV, 593. if out of State special directions as to service, XV, 593. if party not found, service on attorney four years after judgment good, XV, 593. may be ordered to be made on solicitor, XV, 593, or on party " in any part of the world," XV, 593. person out of State regarded as not to be found, XV, 593 to cauteT jv/risdiction cannot be made abroad, XV, 593. See Appearance. 636 DIGEST OF Set-off, when bank may set oflf against deposit, IV, 424. wlien surety cannot avail himself of principal's, II, 387. Sewer, right to use river for sewerage, X, 25. See City, Municipal corporations. Negligence, Jtivera. Sheriff. See Execution. Frauds, statute of. Ships and vessels. See Jurisdiction. Sickness. See Insurance. Slander. See Evidence. • Snow, how far city liable for injury from, in streets, II, 575. Society, when member of, not properly expelled and how restored to member-, ship, IV, 143 ; X, 385. See Corporations, Corporators, Mlections, corporate. Soldiers, nuncupative wills by, XI, 392. Solvent, who is and who not, XI, 43. Sovereign, cannot be sued abroad for acts as, XII, 65 , XIII, 681 ; XV, 693. Special damages, what sufficient to maintain action for obstructing street, XIII, 584. See Damages, Eminent domain. Specific, when legacy is, XI, 652 See Legacy Specific performance, agreement required by statute to be in writing cannot be partly in writing and partly parol, II, 315. lands in another State, XIV, 441. though discretionary, XIV, 441. so of country where lands located, XIV, 441. may appoint trustee to convey, XIV, 441. of agreement by carrier to give free pass, XIV, 275. of agreement for insurance when decreed, IX, 361. of agreement to execute mortgage, I, 566. of agreement to give or transfer real estate, X, 468. of lands in one country decreed by courts in another, IX, 857. when party not obtaining entitled to improvements, X, 468. See Erauds, statute of, Gift, Vendor and vendee, Injunction, State courts, when pendency of suit in Federal courts bar^and vice versa, IX, 858- See Jurisdiction. AMERICAN NOTES. 637 statute, after courts have declared constitutional, when cannot subsequently declare invalid, XII, 180. when repeal of, abates prosecution under, VI, 88. See Bonds, Divorce. Stay, how far appeal operates per se as, II, 124. when proceedings stayed until payment of costs of former suit, IV, 316. Steam boiler, accidently burst, XIV, 557. Stock, assigned, but not transferred on books, before equitable lien in favor of corporation, XIII, 49. ansignment without transfer good as against stockholder, XIII, 40. cannot issue more than charter authorizes, XIII, 39. but corporation liable for fraud of agent, XIII, 39. corporation transferred without production of scrip, XIII, 40. general authority to certify checks, XIII, 39. officer illegally issuing liable, XIII, 39. policy of law to protect bona fide purchasers, XIII, 39. otherwise if paper not negotiable, XIII, 39. remedy of stockholder when corporation refuses to transfer, XIII, 40. second assignee first procured transfer of, on books, XIII, 40. stock assigned befofe paid up, XIII, 40. when fact that one purchaser a partner is notice, XIII, 39. when officers may issue to themselves scrip so as sell to iona fide pur- chaser, XIII, 39. when possession of transfer books authorizes party to bind the corpora- tion, Xin, 38. See Stockholders. Stockbroker, rights and liabilities of, VI, 309. See Broker. Stockholders, action lies if all stock of same class not treated alike, XII, 803. agreement not to be liable invalid, XII, 699. dividends on preferred stock must be paid from earnings, XII, 803. forfeiture of stock, XV, 19. how election to be conducted, VII, 587. how far, and when may sue, and when not. III, 28 ; XI, 484 ; XIII, 158 ; XIII, 758-9 ; XIV, 81. how to sue, XIV, 85. how far legislature can change rights and liabilities of, XIV, 81. liability of,_ as directors, XII, 155. liability of unincorporated company, XII, 155. liability upon contracts in view of incorporation, XII, 154. what is ratification thereof by corporation, XII, 154. may be barred by laches, XV, 19. no defense to call that subscription of others colorable, XV, 520 old have a right to subscribe for share of new stock, XV, 19. remedy for refusal to transfer stock, VII, 585. 638 DIGEST OF ' , Stockholders — Continued. remedy if improperly expelled, IV, 43 ; X, 385. rights of, in stock issued to control election, VII, 119 ; VII, 586. right to sue, when association not incorporated, XIII, 759. what stockholders entitled to vote at corporate election, VII, 585. what sufficient agreement to take stock, XII, 155. when agreement that note or subscription shall not be enforced is void, IV, 16. when and how may obtain new election, VII, 588. , when bound to pay dividends on, remedy for, etc., XII, 803. when cannot maintain action in interest of rival company, VII, 119. when liable upon subscription procured by fraud, I, 611. when may recover against officer fraudulently issuing stock, VIII, 34. when may sue directors for fraud as to value of stock bought, XIII, 758. when money for land belongs to capital and not income of trust fund invested in shares, XIV, 419. when preferred stock may be issued, XII, 803. when purchase of, by directors, fraudulent, XI, 488. who takes dividends on stocks, XIV, 419. See Corporate eleotions. Corporations, Corporators, Stock. Street, what obstructions of, nuisance, and who may maintain actions there- for, XIII, 584. See Municipal corporations, Negligence. Subrogation. See Principai and surety. Subscribing witness, how far chargeable with notice, XII, 380. executor may renounce, when competent, XIV, 537. when all, of will, required to be called, XIV, 537. when executor not disqualified, XV, 730. when legacy to, invalid, XV, 730. who is, to will ; when legacy or devise to, void and when not, XIV, 536. Sunday, if process returnable on Sunday, cannot alter, XIV, 590. Surety, discharge of, by giving time to debtor, I, 490 ; XI, 41. estopped by recital that principal is officer, XII, 384. estopped from claiming undertaking invalid, XII, 383, 384. may recover of subsequent assignee money due from government, assigned, by order, to creditor, XIV, 368. when cannot avail himself of counter-claim in favor of principal, II, 687. when cannot terminate liability by notice, VII, 433. when not released by failure of obligee to ascertain: and give notice of default. III, 373 ; IV, 457. when released by creditor losing benefit of collateral, III, 307 ; IX, 576. See Consideration, Principal and surety. AMERICAN NOTES. 639 Survivor, buying assets of partnership, IV, 937 ; X, 634. remedy of creditor against, X, 634. See Partnership, Trustees. Survivorship, presumption as to, XIII, 679. See Death, '^^^i-yo^C-^^e-^-^rxJ Taxation. See Domicile. Tenant. See Landlord and tenant. Tenants in common, damages in suits by one against other, and against third persons, XIII, 649. diflference between tenant and cropper, XIII, 646. effect of one refusing to allow severance, XIII, 646. ejectment will lie by one against other, XIII, 646. farm let to be worked on shares, XIII, 645. rights, of parties in such case, XIII, 645. creditor cannbt be affected by voluntary partition among tenants in com- mon, XIII, 645. how must sue in ejectment, XIII, 648. how sheriff to levy and sell against one, XIII, 645. how suit to be brought in such case, XIII, 649. if sells plaster, minerals, etc., must account for moneys received, XIII, 648. if two sue one cannot release, XIII, 650. may show is, under general issue, XIII, 646. of copyright, one prints books, XIII, 649. parties agreeing to save from wreck, XIII, 644. one allowed for improvements, etc., XIII, 648, 649. one cannot compel mortgagee to accept his share, XIII, 650. one cannot coilvey to other during adverse possession, XIII, 649. one cannot maintain replevin against other, XIII, 646. one cannot make lease binding on other, XIII, 649. one cannot use force to prevent other from entering on common property, Xm, 645. one delivers to third person, XIII, 647. one may sue for trespass upon real estate, XIII, 649. one ousting other and exclusively using property, XIII, 648. one removed machinery to own building, XIII, 647. one renting may recover entire sum, XIII, 649. one selling by consent severs, XIII, 647. one selling without recognizing other's right, XIII, 647. one sowing crops entitled to. XIII, 648. one taking exclusive possession, XIII, 647. one to contribute to expense of suit beneficial to both, XIII, 649, 650. one who evicts other guilty of trespass, XIII, 645. 640 DIGEST OF Tenants in common — Continued. otherwise as to personal property, XIII, 649. partition of interests in vessel, XIV, 443. partition of personal property between, XIII, 646. persona jointly manufacturing timber, XIII, 645. right to put up signs, of tenants along stairway, XIII, 650. see peculiar case held not liable, XIII, 647 what acts amount to disseizin, XIII, 650. what is destruction or conversion, XIII, 647. one sells property so held as his own, XIII, 647. even though not removed, XIII, 647. one destroys property so held, XIII. 647. what purchaser acquires, XIII, 645. when and how far one may obtain tax, or other outstanding, title to preju- dice of other, XI, 112; XIII, 650. when each may sever and take his share, XIII, 646. when liable for use or rent of lands, XIII, 648. when not of pillar in front of houses, XIII, 648. when one may have injunction against other, XIII, 646. when one must show loss, destruction or sale by other, XIII, 647. when owners of vessels are and when not partners, XIII, 645. when statute of limitations runs against, XV, 553. See Easement, Beplevin. Tender, of deed to personal representatives of deceased though runs to heirs, IX, 743. See Performance, Meacisxion. Timber, reservation or sale, whether in writing,, of , XII, 348 ; XV, 227. when cutting restrained by in j unction, IX, 825". when not liable for obstructing view by, IX, 835. when occupant guilty of waste in cutting, IX, 835. See Prauda, statute of. Title, by alluvion, accretion, or avulsion, XI, 118. in property accidently carried on another's lands, XIV, 558. in whom is bill of exchange sent by mail, VIII, 705. materials prepared and furnished for a house, XII, 358. of goods sent by express C. 0. D., remains in vendor till delivery, XIV, 751. to trees, bark, growing crops, etc.', when passes, and when not, XII, 348 ; XV, 337. what passes on sale of part of mass of similar property, XIV, 577. when does not pass to ship, etc., till finished, though work done under, buyer's agent, and payments made, XII, 357. exception to rule in case of portrait, XII, 358. when laud sold on presumption from absence owner is dead, XIII, 670, 677-8. AMERICAN NOTES. 641 TniiE — Continued. when stored In elevator, XIV", 577. See Deed, Bomicile, Exfcutors and administrators, Fixtures, Fraud, Frauds, statute of, / Stock, Tenants in common. Widow. Trees, as to cutting or planting to obstruct or destroy a view, IX, 825 ; XI, 533. reservation or sale of, XII, 248 ; XV, 227. See Frauds, statute erf, Timber, TitU. Trespass, injuring nets, XIII, 131. one had fish nearly inclosed, another took them, XIII, 131. seizing vessel illegally engaged in taking fish, XIII, 181. when injunction issued to restrain, IV, 724 ; XI, 502. when window sill, or window blinds, opening and shutting are, XI, 532. See Animals, Frauds, statute of. Injunction, Tenants in eomm/m, TroBer. TriaL See Verdict. Trover, one selling for another, or interfering with property, in good faith, III, 254. See Agent, Frauds, statute of, Trust and trustees, creditor holds collateral policy in trust, IV, 307 ; IX, 576. when court will send trust fund to another State, VIII, 620. when words of a will create a precatory trust, X, 740. bonds delivered to railway company to build road ; municipal corporation may restrain use for any other purpose or creditor from reaching, XIII, 597. constitute but one person in law, XIII, 757. • director lends to firm of which is member, funds so loaned mixed with partnership funds cannot follow trust funds, XIII, 759. how one refusing, to be made party, XIII, 757. husband paid for property title taken in wife's name, XIII, 833. if disagree how suit to be brought, XIII, 757. if widow buys cemetery lot with funds of estate, is for children of de- ceased, XII, 666. of land situate in another State, XIV, 441. 81 642 DIGEST OP Tbust and tbustees — Continued. of land, as to appointment and removal of, XI, 646. rigtt of survivors to appoint another, XI, 646. trustees to keep lot, tombstones, etc. , in repair, XII, 666. trustees for bondholders cannot compel to wait or to afford facilities to debtor, XIII, 757. upon vrhom trust devolves on death of trustee, XI, 646. when and how far one tenant in common may obtain tax or other outstand- ing title for own benefit, XI, 112 ; XIII, 650. when to consent to marriage, or if marries, when to declare trust, XIII, 726-27. who to sue in case of death of trustee, XI, 646. purchasing from self including directors, X, 576 ; XI, 112 ; XIII, 113, 483. receiving current bank notes of bank which fails, XIII, 562. when one is bona fide purchaser from, VI, 168 ; XIII, 595. when purchase of property of or dealing with cestui que trust fraudulent and void, X, 575 ; XI, 113, 483. See Bona fide, Corporation, Mcecutors and administrators. Fraud, Idfe estates. Stock, Stockholders, Will. Trustees of corporations. See Directors. U. Ultra vires, what is and what not, VI, 17 ; XI, 483 ; XIII, 756 ; XIV, 81. See Corporations, Directors, Stock, Municvpal corporations. TTnbom child, how and when barred by legal proceedings, VTI, 629 ; XII, 384. XTnderletting. See Landlord and tenant. Undue influence, right to set aside for, lost by laches, XII, 103. what is, II, 804; XII, 103. when a will is invalid on account of and when will be set aside for, IV, 710 ; XII, 101. when instrument set aside for, II, 804; XII, 101. when legatee required to explain, XII, 103. See Fraud, Trust and trustees. Usage, when admissible, effect of and how far parties bound by, I, 41 ; XIV, 210. must be reasonable, XIV, 310. AMERICAN NOTES. 643 Usage — Continued. must be uniform and of duration sufficient to presume parties under- stood it, XIV, 210. if so, contract presumed made witli reference to, XIV, 310. Usury, usurer cannot plead own turpitude, XI, 45. when estopped from interposing, XII, 381. See Bona fide luMer Y. Vendor and vendee, agreed to measure land sold by acre within given time, • XII, 384. damages when vendor sells in good faith and when not, IX, 164 See Agreement, Deed, Bxeeutors and administrators. Fixtures, Vraud, Jurisdiction, lAen, Sale, Title. Verdict, can court direct in criminal case ? XII, 335. Vessel. See Jurisdiction. View, as to obstructing a lake or other view, IX, 835, right to rembdj for int^fering with, XI, 583. See Bay window, Da/mages, Injunction, Nuisance. Volvmtary payment, paying money not diie to obtain own property is not, xm, 53. Voter. See Domicile. W. Wager. See Insurance, life. Waiver, as to time to cut trees, remove buildings, etc., XV, 330. notice or request to comply not, XII, 416. of instrument being reduced to writing, XII, 378. procuring appointment of receiver, XII, 416. receipt of rent, when operates as, XII, 416. what is of discharge of surety, XI, 47. when failure to object, not, XIV, 85. when none of demurrer in criminal case, XIV, 663. See Acquiescence, Insurance, Laches, Performance. 644 DIGEST OF War. See.Insuranee. Warranty, by assignor, indorser and guarantor, that instrument valid, XI, 348. if acceptance induced by artifice or fraud, vendor's rights not affected thereby, XII, 457. only incident to completed sale, XII, 457. none implied after acceptance on executory contract of sale. III, 193 ; XII, 457. if difficult to examine, need not do so at once, XII, 457. so if defect cannot be discovered by ordinary diligence, XII, 457. if warranty buyer need not offer to return, XII, 457. or if fraud, XII, 457. if warranty fit for particular purpose, purchaser may recover damages between good and defective manufactured article, XII, 457. when implied on executory sale, XII, 456. purchase with right to return if not satisfactory, XII, 457. > remedy of seller in such case, XII, 457. / unless seller be manufacturer, warranty of fitness for particular purpose not implied, XII, 457. otherwise if manufacturer, XII, 457. vendee must examine and return within reasonable time, XII, 457. if does, may recover freight paid, XII, 457. if refuse or slops, sold as such, no implied v^rranty or right to return, XII, 457. when warranty shall correspond to sample, XII, 457. where defect can only be discovered by use-, XII, 457. where sold for particular purpose, XII, 457. See Insurance, Sale, Title, Vendor and vendee. Waste, when one tenant in common may restrain other from committing, XIII, 646. when tenant or occupant guilty of, by cutting trees, IX, 825. See Landlord and tenant. Water and water-courses, liability of railway company for not restoring, XV, 252. remedy for obstruction of, interference with, pollution of, what adverse user of, right of owners, IX, 556. canal owners turned into drain which was obstructed, XIV, 543. city cleared lots to certain point, but from obstructions below injury sus- tained, XIV, 544. duty of upper mine to keep from lower, XIV, 543. fouling of, by sewer, IX, 726. injury from surface water from roofs, or from building and grading, XIV, 544. injury to adjoining owner from defective pipes, XIV, 545. injury to tenants from rain while putting on new roof, XIV, 545. injury to those below from pipes bursting, etc., XIV, 545. AMERICAN" NOTES. 645 Wateb and watbb-cotxrses — Continued. miner loosened earth wliicli carried on to lands below, XIV, 544. one whose duty to keep clear must, without notice, clear within reason- able time, XIV, 543. - rats gnawed hole in water box, so flooded tenant below, XIV, 544. whUe city repairing road, stones carried into culvert, XIV, 544. See City, Eminent domain, Injunctions, Municipal corporation, . Nuisance, ^ Rivers. Way, act of parties, monuments, etc., considered, XIV, 808. . cannot change place of entry or exit, XIV, 808. for what purposes may be used, VIII, 774. how located, by whom, and where, XIV, 808. not necessarily defined by visible objects, XIV, 808. of necessity, VIII, 774. right to travel extra mam, VIII, 774. who may select location of, VIII, 774. See Highways, Rivers. Widow, cannot transfer title to husband's property as against representa- tive, XIV, 419. when, may recover for husband's property without administering, XIV, 419. Wilful, when an act is willfully done within meaning of law, I, 408. WilftOly, meaning of " wUlf nlly," XV, *«6. /^ ^ Wills, court may allow withdrawal of application to prove, XIV, 537. "dying "without issue," XII, 53. executor authorized to interpret, XI, 394. how loss of, shown, V, 583. gnawn by rats and defaced, V, 533. how lost, established by copy, XIV, 586. legacy on condition child shall live with particular person, XII, 136. mistake in, cannot be corrected, VI, 631 ; XII, 31. but if legatee erroneously described legacy good, I, 360 ; VI, 630 ; XII, 31. by mistake two intending to execute mutual, each signed wrong copy, VII, 134. remedy for fraud in probate court or court of equity, XII, 103. two inconsistent clauses as to life estate and fee, XIII, 793. what a proper subscription and execution of, by testator and by witnesses, IV, 680. what a valid nuncupative, by soldier or sailor, IV, 686 ; XI, 393. what evidence and circumstance admissible to aid in construction of, VI, 631 ; XII, 31. what is a valid revocation of, and what not, V, 533. 646 DIGEST OF AMBKIOAN NOTES. Wills — Continued. when mutual valid, when may be revoked, and what is revocation of, III, 134. when set aside for fraud or undue influence,- IV, 710 ; XII, 101. who subscribing witness to ; when legacy or devise to void, and when not, XIV, 536. See Condition, Vraud,, Legacy, Life estate, Huhseribing witness. Windows, remedy against bay window affecting neighbor, XI, 533. right to window sill and to open and close shutters, when acquired by adverse possession, XI, 532. See Yiew. 'Vl^itness. See Evidence, Memoranda, Words, "basin," "bay," "haven," "high seas," " port," " roadstead," XIV, 641. " dying without issue," XII, 53. Work and labor. See Arbitration, Frauds, statute of, Writing, waiver of agreement being reduced to, XII, 378. See Memoranda, Pa/rol evidence. Wrong-doers,, when cannot set up indemnity by insurers, IX, 576. when jointly liable and when not, XII, 514. when liable for removing fixtures, XIII, 18. when loses title by annexing fixture, XIII, 16, 17, 19. whether master and servant both jointly as, XII, 544. recovery of judgment against one is not bar against others. III, 890. See Indemnity, Principal and agent. Wrongful death, when may recover though instantaneous, IV, 475. TABLE OF CASES REPOHTED. A V. A (Prob. and Div.). XII, 686, p. 175 — Divorce. Abbott V. Abbott (Priv. C), XI, 81, p. 277 — Jurisd. do , Hopkins v. A'Beckett, Jenner v. Aberdare Local Board v. Hammett (Q. B.), XII, 330, p. 119 — Crim. Law. Abinger, Lord, v Ashton (Eq. C), IX, 585, p. 253— Injunction, 327 — Mines Abraham, Bethell v. do , Forster v, Abrahams, Bank v. Accidental Ins. Co., Matter of . Allin's Case(Eq. C), VI, 805, p. 430 — Public Co Ackroyd v Ackroyd (Eq. C), IX, .826, pp. 293, 294 — Legacy. Adams v. Adams (Eq. C), III, 720, p. 555 — Will. Adams, Goods of (Prob. and Div.), II, 151, p. 521 —Will. Adamson's Case (Eq. C), XI, 596, p. 411 —Public Co. do , Goods of (Prob. and Div..), XIV, 704, pp. 520, 531 — Will. do , Copin V. do V. Hammond (Prob. and Div.), VIII, 620, p. 108 — Costs. Adansonia Fibre Co., Miles' Claim (Chan. App.), X, 634, p. 368 — Partner. Addison's Case (Eq. C), XV, 514, p, 425 — Public Co. do V. Cox (Chan. App.), IV, 765, p. 18 — Assignment, 108 — Costs. Addy, Barnes v. Adeane, Erskine v. Aden, Eegina v. Advocate Lord, McDouall v. ^olus. The (Adm. and Eccl.), V, 565, p. 470 — Ships, etc. , African Merchants, Co. of, v. British and For. Mar. Ins. Co. (Exch.), V, 346, p. 264 — Insurance, Mar. Agra Bank v. Barry (H. of L.), IX, 94, p. 333 — Mortgage, 357 — Notice. Alchin's Trusts (Eq. 0.), Ill, 707, p. 558 — Will. Alcock, Booth v. Aldam, Busk v. Alexander v. Vanderzee (Com PI.), Ill, 379, p. 97 — Contract, 390 — Practice. Alison's Case (Chan. App.), VIII, 678, pp. 405, 406 — Public Co. Allan V. Gott (Chan. App.). H, 888, p. 548 — Will. 648 TABLE OF CASES KEPORTED. Allen V. Jackson (Chan. Div.), XV, 815; reversing S. C.XIII, 564; p. 441 — Eestraint of Marriage, 519 — Will, do V. Martin (Bq. C), XV, 443, p. 353 — Injunction, do , Eedpath v. * do , Regina v. Alletson v. Chicliester (Com. PI.), XII, 386, p. 356 — Notice. Allfrey, Flitters v. AUgood V. Blake (Exch.),V. 353; affirming S. C, HI, 436; p. 165 — Defini- tions, 550 — Will. Alliance M. Ins. Co., Bbs worth v. Allin's Case (Bq . C . ), VI, 805, p. 430 — Public Co . Allison V. Bristol Mar. Ins. Co. (App. Cas.), XV, -83; reversing S. C," X, 300; p. 368 — Insurance, Mar. Alsopp V. Wheatcroft (Bq. C), V, 714, pp. 109, HO — Covenant. Alston, Ruffles v. Ambler v. Bolton (Eq. C), III, 806, p. 371 — Partnership. America, The (Priv. C), 111,93, p. 1— Accident, 6 — Admiralty, 195 — Evi- dence, 464 — Ships, etc. American, The, and The-Syria (Priv. 0.), XI, 75, 395, p. 466 — Ships, etc. Amerique, The (Priv. C), XIII, 330, p. 471 — Ships, etc. Anderson v. Anderson (Eq. C), I, 730, p. 516 — Will. do V. Morice (Exch.), XIV, 455 ; reversing S. C, XI, 353; pp. 358, 259, 363, 366 — Insurance, Mar. do V. Owners of San Roman (Priv . C . ), VIII, 330, p . 80 — Charter Party . do V. Pacific F. & M. Ins. Co. (Com. PL), 1, 130, p. 364— Insurance, Mar. Andrews v. Andrew (Chan. Div.), XV, 834, pp. 563, 564 — Will, do , Buchanan v. AS , Fulton V. Andrew, Matter of (Q. B.), IV, 361, p. 362 — Parent and Ch. do V. Salt (Chan. App.), VI, 536 — pp. 363, 363 — Parent and Ch. Angell V. Duke (Q. B.), XII, 336, p. 333 — Frauds, Stat. of. Anglo-Egyptian Nav. Co. v. Rennie (Com. PI.), XII, 345, p. 95 — Contract. Anstruther, Cunningham v. Antilope, The (Adm. and Eccl.), V, 569, p. 6 — Admiralty. Applebee v. Percy (Com. PI.), X, 334, p. 11 — Animals. Appleby v. Johnson (Com. PI.), VIII, 466, p. 89 — Contract. Appolinaris Co., Fisher V. Arbuthnot, Woodfall v. Archangel Ins. Co., De Wolf v. do M. Ins. Co., North of England, etc., Co. v. Argos, Cargo ex. (Adm. and Eccl.), V, 553, p. 53 — Bill of Lading. do (Priv. C. ). VIII, 103, pp. 4, 5 — Admiralty, 461 — Ships, etc. Arkle, Williams v. Armitage, Merchants' Shipping Co. v. Armstrong, The (Adm. and Eccl.), XIV, 663, pp. 470, 471 — Ships, etc. do , Die Elbinger Actien GesellschafiFt, etc., v. do V. Lancashire, etc., Ry. Co. (Exch.), XII, 508, p. 375 — Joint Liabil- ity, 353 — Negligence. [ (Eq. C), XIII, 745, p. 435— Public Co. TABLE OF CASES EEPOETED. 649 Armstrong, Monsell v. do Regina v. do -v. Stokes(Q. B.),in„217,pp. 397, 398— Priuoipscl and Agent. Arnold v. Dixon (Eq. C), XI, 71,8, pp. 170, 171 — Distribution. do V. Holbrooke (Q. B.), IV, 336, pp. 335, 336 — Highway . do , Reynard v. do , Weston v. do V. Woodbams (Eq. C), VI, 631, p. 339 — Husband and Wife. Asbbee, Kempson v. Asbbury Ry. Carriage Co. v. Riche (H. of L.), XIV, 43; reversing S. C, X 396, pp . 430, 431 — Public Co. Asbcroft V. Crow Orcbard Colliery Co.(Q. B.)" X, 167, pp. 463, 463 — Sbips, etc, do , Matter of (Com. PI.), IX, 436, p, 9 — Affidavit. Asbfortb v. Redford (Com. PL), VII, 135, p. 167 — Definitions, 391- Practice. Asbley v. Ashley (Chan. Div.), XV, 730, p. 303 — Executors, etc. Asbmead's Trust, Matter of (Chan. App.) IV, 796, p. 496— Trusts. Ashton, Abinger v. do V. Corrigan (Eq. C), I, 565, p. 473 — Specific Perf . do V. Robinson (Bq. C), XIII, 585, p. 368 — Partner. Ashurst V. Fowler do V. Mason AshweU V. Lomi (Prob and Div.), IV, 700, pp. 196, 197 — Evidence, 519 — Will. Asbworth, Fielden v. Askew v.Rooth (Eq, C), IX, 615, p. 166— Definitions, 544— Will. Aspden v Seddou (Chan. App.), XII, 773, pp. 333, 334 — Mines. Asplin, Regina v. Astleyv. Earl of Essex (Eq. C), IX, 809, pp. 168, 169 — Devise, 308— Limi- tations, Stat. of. Aston, Sanderson v. Atherton, Dennett v. Atkinson v. Littlewood (Eq. C), XI, 561, p. 184 — Election. Attenborough, Burslem v. Attorney-General V. Cockermouth Local Board (Eq. C), IX,. 720, p. 253 — In. junction, 358 — Nuisance. Attorney-General v. Fletcher (Bq. C), I, 616, p. 566 — Will. do V. Hackney Local Board (Eq. C), XV, 530, p. 349— Injunc tion, 359 — Nuisance. Attorney-General v. Kwok-a-Sing (Priv. C), VIII, 148, p. 133 — Criminal Law, 164 — Definitions, 305 — Extradition, 335— Habeas Corp. 378 — Jurisdiction. Attorney-General v. Lomas (Bxch.), VII, 309, p. 539 — Will. do ,Pisaniv. do v. Terry (Chan App.) IX, 533, p. 349— Injunction, 336 — Nav. River. Attorney-General V. Wax Chandlers' Co. (H. of L.), IV, 90, p. 164 — Defini- tions, 559, 560 — Will. Atwell V. AtweU (Eq. C), I, 583, p. 499 — Trusts. Aunger, Regina v. 82 650 TABLE OF CASES EBPOETED. Austin, Stanton Australasian Ins. Co., Hendricks v. do , Stephens v. Australasian Steam Nav. Co. v. Morse (Priv. C), HI, 100, p. 336— Neces- sity, 460 — Ships, etc. Australian Agricultural Co. v. Saunders (Exch.), XIV 501, p. 256 —Insurance, Fire. AustraUan Dir. Steam Nav. Co., Matter of (Eq. C), XIII, 828, p. 516 — Admir- alty. Axmann v. Lund (Eq. C), IX, 841, p. 190 — Estoppel, 251 — Injunction. • Ay erst v. Jenkins (Eq. C), VI, 756, p 456 — Settlement. Ayles' Trusts, Matter of (Chan. Div.), XV, 741, p. 163 — Definitions,???. 554,555 —Will. Aylesford, Earl of, v. Morris (Chan. App.), VI, 448, p. 216 — Fraud Aylmer, Morice v. Ayl win's Trust, Matter of (Eq. C), VII, 598, p. 539 — Will. Aynsley V. Glover (Chan. App.), XII, 726 ; affirming S. C, XI, 521, p. 179- Easement ; 247,248 — Injunction. Bailey, Ex parte, In re Jacks (Eq. C), I, 703, pp. 26, 42 — Bankruptcy. do (Chan. App.), IV, 756, pp. 374, 375 — Patent. Bailey v. Piper (Eq. C), XI, 608, p. 480 — Specific Perf . do , Regina v. Bain v. Pothergill (H. of L.), IX, 116, pp. 156, 157 — Damages. do , Morgan v. Baiss, Hackett v. Baker, Gearns v. do , Harnett v. do V. Loader (Eq. C), VI, 634, p. 20 — Attorney. do , Smith v. do , West V. do V. White (Eq. C), XIII, 701, p. 566 — Will. Baldwin v. Casella (Exch.), Ill, 434, p. 321 —Master and Serv. do , Mullfer V. Balfoar, Tapscott v. Ball, Capes v. do V. Ray (Chan. App.), VI, 435, p. 196 — Evidence, 358 — Nuisance. Ballacorkish Silver, etc.. Mining Co. v. Harrison (Priv. C), VIII, 88, p. 254 — Injunctibn, 325 — Mines. Baltic, The (Adm. and Eccl.), VIII, 655, p. 470 — Ships, etc. Banda Boota (Adm. and Eccl.), XIV, 689, pp. 510, 511 —War. Bangor, etc.. Slate and Slab Co., Matter of (Eq. C), XIII, 606, pp. 413, 413 — Public Co. Bank of Australasia, Harrison v. do S. Australia v. Abrahams (Priv. C), XII, 148, p. 406 — Public Co. do British N. America, Torrance v. do India v. Henderson (Priv. C), IX, 275, p. 50— Bill of Lading. do New South Wales, Smith v. ' TABLE OP OASES EEPOETED. 651 Banka v. Crossland (Q. B.), XI, 168, p. 331 — Frauds, Stat. of. 333— Master and Serv. Banks, Regina v. Barber, Kimber v. do Tui'ton V. Barclay, Ex parte, In re Joyce (Chan. App.), X, 601, p. 310 — Fixtures. Barfield v. Loughborough (Chan. App.), IV, 718, p. 371^— Partner. Barker, The (Adm. and Eoel.), XIV, 699, p. 467— Ships, etc. do , Ellis V. do , Prescott v. Barlow, Bowen v. Barnard, Gravely v. Barned's Banking Co., Matter of (Chan. App.), XII, 704; affirming S. C, XI, 625, p. 31 — Bankruptcy. Barnes v. Addy (Chan. App.), VIII, 848, p. 493 — Trusts. Barnett, Matter of (Chan. App.), VIII, 873, p. 89 — Bankruptcy. Bamett's Case (Eq. C), X, 819, p. 436 — PubUc Co. Barnett, Cadiz Waterworks Co. v. Baron de Worms v. Mellier (Eq. C), VI, 868, p. 15 — Arbitration, 354 — In j unc- tion. ^ Barrell v. Parnell (Chan. App.), XIV, 757, p. 508 — Vendor and Purch. Barret, Regina v. Barry, Agra Bank v. Barteaux, Cobequid M. Ins. Co. v. Barton, Gribson v. Basnett v. Moxon (Eq. C), XIII, 716, p. 313 — Former Adj. Bassett's Estate, In re. Perkins v. Fladgate (Eq. C), II, 417, pp. 554, 557— Will. Batchelor, Hemming v. Bateman's Trust, Matter of (Cox C. C.), VI, 313, p. 149 — Criminal Law. Batley v. Kynock (Eq. C), XI, 698, 813, pp. 375, 376 — Patents. Batstone v. Salter (Chan. App.), XIV, 714 ; affirming S. C, XI, 826, p. 231-,- Gift. Batut V. Hartley (Q. B.), Ill, 314, pp. 21, 33 — Bailment. Bauld, Regina v. Baxendale v. London, Chatham, etc., Ry. Co. (Exch.), XII, 496, p. 154 — Dam- ages. Baxter, Mathews v. • Bayley v. Manchester, etc., Ry. Co. (Com. PI.), IV, 384 ; affirming S. C, III, 308, pp. 331, 322 — Master and Serv. BayUav. Lintott (Com. PI.), V, 319, pp. 107, 108 — Costs. Beak v. Beak (Eq. C), II, 390, p. 331 — Gift. Beal V. Marchais (Priv. C), VIII, 343, p. 465— Ships, etc. BeaU V. Smith (Chan. App.), VIII, 749, p. 313 — Lunatic. Beattie v. Lord Ebjiry (Chan.' App.), Ill, 635, pp. 104, 105 — Corporation. do do (H. of L.), IX, 64, p. 315 — Fraud, 410, 415 — Public Co. Beauchamp, Earl of, v. Winn (H. of L.), VI, 37, p. 233 — Grant, 327 —Mistake. Bechervaise v. Lewis (L. J. N. S.), II, 684, p. 163— Defense. Beck's Case (Chan. App.), VIII, 929, pp. 438, 429 — Public Co. 653 TABLE OF GASES EEPOKTED. Beer v. London, etc., Hotel Co. (Eq. C), XV, 408, p. 333 — Frauds, Stat of. Beeston v. Beestou /"Ex. t>iv.), XV, 364, p. 510 — Wager. Beeton, Ward v. Be^bie v. Phosphate Sewage Co. (Q. B.), XIV, 396, pp. 338, 339 — Money paid. Belaney v. Ffrench (Chan. App.), VII, 471, p. 19 -^Attorney. Belhaven and Stanton Peerage (App. Cas.), XV, 143, p. 193 — Evidence. • Bell V. Holtby (Eq. C.),-V. 793, p. 309 — Pines, etc., 473 — Specific Perf. Bellairs v. Bellairs (Bq. C), X, 833, p. 391 — Legacy. Bellamy, Brophy v. Bellwood's Will, Matter of (Chan. App.), VI, 585, p. 493 — Trusts. Benas, Ogden v. Benjamin v. Storr (Com. PI.), X, 331, p. 193 — Evidence, 359 — Nuisance. Benmore, The (Adm. and Eccl.), VII, 368, p. 196 — Evidence. Bennett, SheflSeld Waterworks v. Bennett's Trusts, Matter. of (Chan. App.), XIV, 738, p. 31 — Bankruptcy. Bentinck, Lowther v. Beresford v. Browning (Chan. Div.), XV 637 ; affirming S. C, lb. 494, p. 369 — Partners . Bergheim v. Blaenavon Iron Co. (Q. B.), XIII, 364, p. 156 — Damages. Bermingham, Tuite v. Bernstein, Bloomer v. Berridge, Jervis v Berry v. Gibbons (Chan. App.), VI, 588, pp. 357, 358 — Notice, 381 — Pledge. Best V. Hill (Com. PL), IV, 390, p. 453 — Set-off. Best's Settlement, Matter of (Eq. C), IX, 611, p. 166 — Definitions, 301 — ' Executors, etc. Bethell V. Abraham (Eq. C), VII, 649, p. 495— Trdsts. Bettison, Matter of (Adm. and Eccl.), XII, 654, p. 63 — Burial ground. Beynon v. Cook (Chan. App.), XII, 769, p. 330 — Mortgage . Bickmore, Pretty v. Biddolph, Pell v. Biddulph V. Williams (Chan. Div.), XIV, 694, p. 457 — Settlement. Bide V. Harrison (Eq. C), VII, 691, p. 167 — Definitions, 390 — Legacy. Biel's Estate, Matter of (Eq. C), VII, 591, p. 195 — Evidence, 538— WUl. Bigg V. Corporation of London (Eq. C), V, 887, p. 84 — Compensation. do , Mutlow V. Bigge, Treloar v. , • Bignold's Trust. Matter of (Chan. App.), 1,506, p. 493 — Trusts. Billson V. Crofts (Eq. C), V, 863, p. 538 — Will. Binns, Matter of (Chan. Div.), XV, 743, p. 386 — Landlord & Ten. Birch, Dixon v. Birchall v. Pugin (Com. PI.), XII, 458, p. 30 — Attorney, 338 — Garnishment. Bird, Matter of (Bq. C), VI, 715, p. 303 — Executors, etc. do V. Bird's Patent, etc., Co. (Chan. App.), VIII, 909, p. 417 — Public Co. do , Regina v. do , Strong v. Birmingham Canal Co., Dunn v. BiScoe V. Great Eastern Ey.-(Eq. C), VII, 630, p. 345 — Negligence. TABLE OF CASES REPOKTED. 653 Bishop, etc., Laughton v. Black & Co.'s Case (Chan. App.), IV, 880, p. 424 — Public Co. Black, Brown y . do , Dow V. Blackwood, Fenton v. Blaenavon Iron, etc., Co., Bergheim v. Blake, Allgood v. do , Dinn v. do- , Revill v. Blakeman, Regina v. Blakemore, Lowe v. Blamires v. Lancashire, etc.. By. Co. (Exch.), VII, 367, p. 350 — Negligence. Blanchet v. Powell's LI. Collieries Co. (Exch.), VIII, 519, p. 48 — Bill of Lad- ing, 298— Lex Loci, 380 — Pleading. Bland v. Bland (Prob. and Div.), XII, 688, p. 386 — Practice. Blenkhorn, In re. Ex parte Jay (Chan. App.), X, 678, p. 34 — Bankruptcy. Bloomer v. Bernstein (Com. PI.), X, 319, p. 449 — Sale . do Spittle (Eq. C), II, 373, p. 440 — Reformation of Inst Blower, Great Western Ry. v. Bluett, Knowlman v. Board v. Board (Q. B.), VII, 111, p. 190 — Estoppel . Board of Works, Nesbitt v. ■ Boatwrightv. Boatwright (Eq. C), VII, 687, p. 309 — Limitation, Stat. of. Boddington v. Robinson (Exch.), XIV, 559, p. 161 — Deed. Boese, Murphy v . Bolckow, Gunn v. Bolingbroke v. Local Board of Swindon (Com. PI.), X,315, p. 338 — Master and Serv. Bolland, Matter of (Eq. C), VII, 720, p. 315 — Marriage Settlement. Bolton, Ambler v. do V . Madden (Q . B . ), VII, 117, p. 90 — Contract . do Torrance v. Bonany T'Gurety, Larios v. Booth V. Alcock (Chan. App.), VI, 565, p. 305 — Lights, do Hutchinson (Eq. C), V, 697, p. 455— Set-oflF. do , Regina .V. Bootle, Matter of (Prob. and Div.), X, 531, p. 535— Will. Borrell, Tufenell v. Borries v. Imperial Ott. Bank (Com. PI.), VII, 138, p. 453— Set-off. Borwick, Threfall v . Bosley y. Davies (Q. B. Div.), XV, 199, pp. 133, 133 — Criminal Law. Boss, Matter of, In re Whalley (Eq. C), IX, 868, p. 44 — Bankruptcy . Bostock, Dimond v. ■ Bothamley v. Sherson (Eq. C), XIII, 814, p. 390 — Legacy. Bott, Heart v. do , Petrocochino v. Bottrill, "Nottingham Hide Co. v. Bougainville, The (Priv. C), VIII, 243, p. 465 — Ships, etc. 654 TABLE OP CASES REPORTED. Boughton V. Knight (Prob. and Div.), VI, 349, pp. 519, 528 — WiU. Bouluois, Ebbs v. Boulton, Commercial Steamship Co. v. Bourdin v. Greenwood (Eq. C), I, 677, p. 307 — Limitations, Stat. of. Bourne, Wills v. Bouvier, Ex parte (Cox C. C), IV, 550, pp. 306-307 — Extradition. Boweu V. Barlow (Chan, App.), IV, 843, p. 544 —Will. Bows V. Pen wick (Com. PI.), IX, 439, p. 166 — Definitions, 338 — Gaming. Boyd V. Phillpotts (Adm. and Eccl.), XII, 670, p. 83 — Church Decorations. Bradburn v. Great Western Ry. Co. (Bxch.), XI, 330, p. 354 — Negligence, 455 — Set-off. Bradbury v. Hotten (Exch.), IV, 413, p. 103 — Copyright . Bradford, Corporation of, Pudsey Gas Co. v. Bradshaw v. Lancashire, etc., Ry. Co. (Com. PI.), XII, 310, p. 65 — Carrier, 304 — Executors, etc. Branton, etc., Ry. Co., Matter of (Chan. App.), XII, 691, p. 435 — Public Co. do do (Bq. C), XV, 514, p. 435 — Public Co. Brandretli, Byron v. Braunan, Steele v. Brasyer v. Maclean (Priv. C), XIII, 333, p. 459 — Sheriff. Bravo, Rainy v. Brecknell, Da vies v. Breed's Will, Matter of (Chan. Div.), XV, 705, pp. 561, 563 — Will. Bremridge, Hoare v. Brett, Jacobs v. do Regina v . Bridge, Philips v. Bridges v. Directors, etc., N. London Ry. Co. (H. of L.), IX, 165, p. 354 — Negligence, 891 — Practice . Briggs V. Upton (Chan. App.), II, 305, p. 165 — Definitions, 316 — Marriage Settl. Brighton Aquarium Co., Terry v. do Warner v. Brine, Brown v. Brinsmead v. Harrison (Com. PI.), Ill, 383, p. 313 — Former Adj. Bristol M. Ins. Co., Allison v. Bristow, Cory v. British Ins. Co., African Merchants' Co. v. British Mut. Invest. Co. v. Cobbold (Eq. C), XIII, 556, p. 20 — Attorney. do V. Smart (Chan. App.), XIV, 793, p. 333— Mortgage. Britten, Morgan v. Britton V. Great Western Cotton Co. (Exch.), I, 381, pp. 337, 338 — Negli- gence. Brockett, Chamberlyne v. Brooke, Matter of (Chan. App.), VIII, 876, p. 33 — Bankruptcy, do V. Shadgate (Q. B.), VI, 100, p. 483— Statutes. Brophy v. Bellamy (Chan. App.), VII, 389, p. 496 — Trusts. Bronghton, Gowan v. TABLE OF OASES EBPOETED. 655 Browne v. Hope (Eq. C), HI, 772, p. 395 — Legacy. do MeClintook (H . of L . ), VIII, 53, p . 380 — Laches, 891 — Practice . do , Saull V. Brown, Goods of (Prob. and Div.), IV, 681, p. 200 — Bxecut ors, etc. do Trust, Matter of (Eq. C), VI, 738, p. 165 — Definitions, 539, 530 — WiH. do Case (Chan. App.), VIII, 762, P- 411 — Public Co. do V Black (Eq. C), V, 877, p. 432 — Public Co. do do (Chan App.), VII, 489, j). 243 — Indemnity. do V. Brine (Ex . Div . ), XV, 357, p . 90 — Contract . do V. Brown (Prob. and Div.), XI, 387, p. 172 — Divorce. do , Qaudet v. do V. MuUer (Bxch.), Ill, 429, p. 159 — Damages. do V. Powell, etc.. Coal Co. (Com. PL), XIV, 420, p. 78— Charter Party, 188 — Estoppel. do V. Wales (Eq. C), V, 771, p. 169 — Discovery. Browning, Beresford v. do V. Provincial Ins. Co. (Priv. C), VIII, 317, pp. 373, 373 — Insurance, Mar., 395 — Principal and Agent. Brumfitt, Thorpe v. Brunskill v . Caird (Eq. C . ), VI, 824, p. 533 — WiU. Brunt V. Brunt (Prob. and Div.), V, 530, p. 533 — Will. Brunton's Claim, Matter of (Eq. C), XI, 841, p. 189 — Estoppel.' Bubb, Pride v. do V. Yelverton (Eq. C), I, 619, p. 518 — Will. Buccleuch, Duke of, v. Metropolitan Board (H. of L.), II, 448, pp. 83, 84 — Coiji- pensation, 569 — Witness. Buchanan v Andrew (Sc. App.), V, 135, pp. 334, 325 — Mines. Buck, Turner v. Buckley, Regina v. Budge V. Gummow (Chan. App.), Ill, 591, pp. 499, 500 — Trusts, etc. . BuUard, Regina v. BuUey v. Bulley (Chan. App.), X, 706, p. 196— Evidence, 488, 439 — Refor- mation of Inst. BuUock V. Caird (Q. B.), XII, 306, p. 299 — Lex Loci. do Hutton V. Bulteel, Cavender v. Bunn, Regina v. Bunnell, Deverill v. BuTchmore, Goods of (Prob. and Div.), VIII, 618, p. 198 — Executors, etc. Burdett, O'Mahoney v. Burgess v. Eve (Eq. C ), II, 379, p. 234— Guaranty . Burghart, Matter of (Chan. Div.), XV, 753, p . 36 — Bankruptcy, 81 — Chattel Mort. Burns v. Poulsom (Com. PI.), VI, 261, p. 321 — Master and Serv. Burr, Preeth v. do , Smale v. Burra, Thompson v. Burrows v. March Gas and Coke Co. (Exoh.), 1,302, pp.338, 339 — Negligence. 656 TABLE OF OASES EEPORTED. Burslem v. Attenborough (Com. PI.), ly, 363, p. 383 — Pledge. Burt V. Hellyar (Eq. C), III, 690, p. 165 —Definitions, 276 — Jurisdiction, 555 —Will. Burton v. Eyden (Q. B.), V, 346, p. 46 — Benefit So., 167— Definitions, do V. Gray (Chan. App.), VII, 473, p. 330 — Mortgage. dQ , Maxwell v. do V. Newbery (Chan. Div.), XV, 713, pp. 293, 398 — Legacy, 516— WUl. do ,Reginav. Bush, Murray v. Busk V. Aldaip (Eq. C), XI, 637, p. 13 — Appointment. Butcher v. Stead (H. of L.), XIV, 311 ; affirming S. C, X, 607, p. 39 — Bank- ruptcy. Butler, The (Adm. and Ecql.), VIII, 655, p. 470 — Ships, etc. do The C. S. (Adm. and Eccl.), XI, 406, p. 465 — Ships, etc. Butler, Hawtry v. Butterworth, Eegina v. Buxton V. Rust (Exch.), 1, 135 ; affirmed, S. C, 11,675, p. 334 —Frauds, Stat- ute of. «; Byrom v. Brandreth (Eq. C), VI, 818, p. 163 — Definitions, 546 — Will. C , M^ V. Caballero .v. Henty (Chan. App.), IX, 543, p. 478— Specific Perf. Cadiz Waterworks Co. v. Barnett (Eq. C), XI, 774, p. 38 — Bankruptcy. Caird, Brunskill v. Caird, Bullock v. Cairo, The (Adm. and Eccl.), VIII, 660, p. 469 — Ships, etc. Caledonian, etc., Ry. Co. V. Greenock, etc., Ry. Co. (Sc. and Div. App.), IX, 191, p. 15 — Arbitration. Cama, Ex parte. In re London, etc., Bank (Chan. App.), X, 668, p. 39 — Bank- ruptcy. Cambridge, The City of (Priv.), IX, 256 ; affirming S. C. VIII, 640, pp. 467, 468— Ships, etc. Campbell's Case (Chan. App.), VIII, 678, p. 405 — Public Co. Camps V. Marshall (Chan. App.), V, 670, p. 311 — Lunatic,. 387 — Practice. Canadian Oil Works, Matter of (Chan. App.), XIV, 809, pp. 435, 436— Public Co. Cannelli, Treffitz v. Cannon v. Prask (Eq. C), XV, 539, p. 2^ — Injunction. Cape V. Scott (Q. B.), VIII, 343, p. 170 -Distress. Capron v. Capron (Eq. C), VII, 822, p. 441 — Bents. Carbery, Preke v. ' Carleton, Langton v. Carling, Matter of (Chan. Div.), XV, 676, p. 438 — Public Co. Carlyon v. Truscott (Eq. C), XIII, 845, p. 499 — Trusts, 563 — Will. Csirr V. London & N. W. Ry. Co. (Com. PI.), XII, 364, pp. 189, 190 — Estoppel. Carrington, Pearce v. Carter v. Scargill (Q. B.), XIV, 365, p. 163 — Defense, do Wilcocks V. . TABLE OF OASES EEPOl^TED. 657 Cartmell's Case, In re County Palatine Loan Co. (Chan. App.), X, 673, p. 434 — Public Co. Cartwrigbt, Corserv. Carver v. Pinto Leite (Chan. App.), I, 450, p. 388 — Practice. Carvill, The (Adm. and Eccl.), XIV, 670, 675, p. 464 - Ships, etc. Cary V. Hills (Eq. C), V, 737, p. 379 — Pleadings. Cashin, Duncan v. Cassella, Baldwin v. Castle V. Gillett (Eq. C), VI, 852, p. 549 — WiU. • do Playf ord (Exch.), I, 204, pp. 443, 444 — Sale. Castro V. Murray (Exch.), XIII, 358, pp. 187, 188 — Error, Writ of, 893 — Practice. do , Regina v. Caton, Begina v. > Cator V. Great Western Ins. Co. (Com. PL), VI, 351, p. 367 — Insurance, Mar. Cattle V. Stockton Waterworks (Q. B.),XIV, 376, p. 155— Damages, 339— Neg- ligence. Cavander v. Bulteel (Chan. App.), VIII, 743, p. 357 — Notice. Cellier, Wegueliu v. Chadwick v. Chadwick (Chan. App.), VII, 478, p. 1 — Abatement and Rev. Chalmers, Matter of (Chan. App.), IV, 899, p. 506 — Vendor and Purchaser. Chamberlayne v. Brockett (Chan. App.), IV, 849, p. 518 — Will. Chambers, Regina v. Chambre, Parfitt v. Chapman, Matter of. Ex parte Hooson (Chan. App.), IV, 863, p. 44 — Bank- ruptcy, do do (Eq. C), V, 724, p. 298 — Lex Loci, do , Couston V. do , Regina v . Charkish, The (Adm. and Eccl.), VI, 400, p. 5— Admiralty. Charles, The (Adm. and Eccl.), Ill, 487, p. 469 — Ships, etc. Charlesworth v. Holt (Exch.), XII, 315, p. 13— Annuity, 451, 453 — Separation deed. Charter v. Charter (H. of L.),XII, 1; affirming S. C, I, 349, pp. 193, 194 — Evi.- dence, 536, 531— Will. Chartered Bank of India, Latham v. Chasemore v. Turner (Q. B.), XIV, 304, p. 308 — Limitations, Stat. 'of. ^ Chasca, The (Adm. and Eccl.), XIV, 690, p. 48 — Bill of Lading, 164— Definition Chatterton v. Cave (Com. PI.), XIV, 437, p. 103 — Copyright. Cheetham V. Mayor, Stc, of Manchester (Com. PL), XII, 324, pp. 191, 193 — Evidence, 335 — Municipal Corp. Cheshire, Hunter v. Cheshire Lines Committee, Grierson v. Chichester, AUetson v. Child V. Hearn (Exch.), IX, 487, p. 163 — Definitions, 340 — Negligence. Christian, Hull v. , , Mo Regina v. 83 658 . TA5LE OP CASES REPORTED. Christie, Gowan v. Christoflferson v. Hansen (Q. B.), II, 639, p. 75 — Charter Party. Citizens' Bank v. First Nat. Bank (H. of L.), VII, 56, p. 17 — Assignment. City Discoant Co. v. McLean (Com. PI.), X, 363, p. 377 — Payment. Clare V. Lamb (Com. PI.), XII, 399, p. 339 — Money Paid, 509 — Vendor and Purch. Clark, Cornish v. do Fox V. Clarke, De Serre v. Claye, Blbinger, etc.', v. Clayton, Murray v. Clements, Monsell v. do Wilkinson v. Clifford V. Hoare (Com. PI.), IX, 449, p. 110 — Covenant. Clint, Matter of (Eq. C), VIi; 730, p. 815— Marr. Settlement. Clinton's Trust, Matter of (Eq. C), I, 691, p. 531 — Will. Cloud, Toude v. Clough's Estate, Matter of (Eq. C), V, 850, p. 811— Lunatic, 478 — Specific Perf. do V. London & N.'W. By. Co. (Exch.), 1, 148, pp. 445, 446, 448 — Sale. Clover y. Eoyden(Eq. C), VII, 758, p. 350 — Injunction. Clowes V. StaflFordshire, . etc.. Waterworks (Chan. App.), IV, 807, p. 349 — Injunction. Coates' Case (Eq. C), VII, 748, p. 413 — Public Co. do V. Collins (Q. B.), I, 47, p. 109 — Covenants. do Legard (Eq. C), XI, 669, p. 380 — Pleading. Cobbett V. Woodward (Eq. C), III, 795, p. 103— Copyright, 346 — Injunction. Cobequid Mar. Ins. Co. v. Barteaux (Priv. C), XII, 301, p. 370 — Insurance, Mar., 355 — New Trial. Cochrane, Matter of (Eq. C), XIII, 803, p. 87 — Contempt, 436, 437 — Receiver. Cockayne v. Harrison (Eq. C), II, 377, p. 544— Will. Coekermouth Local Board, Att'y-General v. Cockle V. London and S. Eastern Ry. Co. (Com. PL), II, 648, p. 347 — Negli- gence . Codringtonv. Codripgton (H . of L.), XIV, 333, pp. 183,-184 — Election . do Lindsay '(Chan. App.), VI, 503, p. 183 — Election, 317 — Mar- riage Settlement. Cogan V. Duffield (Eq. C), XV, 607, p. 439 — Reformation of Inst. Coggins, Regina V. * Cold well, Matter of (Com. PI.), XIV, 498, p. 3 — Acknowledgment. Cole, Mouflet v. Cole V. North Western Bank (Com. PI.), XII, 418; affirmiAg S. C, X, 849, p. 307 — Factor. Coles V. Pilkington (Eq. C), XI, 768, p. 336 — Frauds, Stat. of. Coleman, Glover v. ^ • do , Liquidators, etc., v. t Collier v. Walters (Eq. C), VII, 798, p. 313 — Former Adj., 494 — Trusts. TABLE OF CASES KEPORTED. 659 Collins, Coateg v. do MuUlna v. do Turner v. ColUss V. Hector (Bq. C), XI, 866, pp. 171, 172 — Divorce, 296 —Lex loci. Colonial Bank, etc., v. Willan (Priv. C), IX, 325, pp. 71, 72 — Certiorari, 190, 191 —Evidence, 230 — Fraud, 275— Jurisdiction. Colts' Fire Arms Co.,»Newby v. Commercial Bank, Mackay v. do Steamship Co. v. Boulton (Q. B.), xAl, 388, p. 463 — Ships, etc. do Union Assurance Co. v. Lister (Chan. App.), IX, 572, pp. 256, 357 — Insurance, Fire, do , Pearson v. Commins v. Scott (Eq. C), XIII, 576, p. 325— Frauds, Stat. of. Commissioners of Sewers v. Qlasse (Eq. C), XI, 733, p. 83 — Common, Right of. Company of African Merchants v. British For. and Mar. Ins. Co. (Exch.), V, 346, p. 264 — Insurance, Mar. Comptoir d'Escompte, etc., Henderson v. Condon, In re. Ex parte James (Chan. App.), X, 619, pp. 43, 43 — Bankruptcy. Connolly v. MacClaren, and McClaren v. Murphy (Priv. C), III, 134, p. 3 — Action. Conservators of Thames, Winch v. Cook, Matter of (Chan,. App.), VHI, 860, p. 40 — Bankruptcy. do Beynon v. do Featherstone v. do V. Fowler (H. of L.), IX, 17, p. 374 — Interest, 511— Warrant of Atty. do V. Guerra(Com. PI.), II, 110, p. 334 — Mortgage, do Hudson v. * Cooke V. Gill (Com. PL), IV, 354, p. 378 — Jurisdiction. do , Eegina v. Cooper, Ex parte (Chan. App.), XIV, 755, p. 38 -^ Bankruptcy . do V. Cooper (Chan. App.), VII, 391, p. 8 — Advancement, do V. do (H. of L.), IX, 39, p. 184 — Election, do V. Maedonald (Eq. C), VI, 743, pp. 539, 543, 547— Will, do , Eegina v. V Coote, Kegina v. do V. Whittington (Eq. C), VI, 854, pp. 2()0, 201 — Executors, etc. Cope V. Evans (Eq. C), IX, 689, p. 489 — Trade Mark. Copin V. Adamson, and same v. Stfachan (Ex. Div.), XV, 367 ; affirming S. C, X, 493; p. 377 — Jurisdiction. Copland v. Davies (H. of L.), II, 38, p. 481 — Statutes. Coppard, Varley v. Corbett, Spencer v. Cord well. White v. Corf, Peirce v. Cork DistUleries Co. v. Great S. and W. Ry. Co. (H. of L.), X, 25, p. 70 — Carrier. Corkling v. Massey (Com.Pl.)> VI, 176, p. 78 — Charter Party. 660 TABLE OP CASES EEPOETED, Corlass, Matter of (Chan. Div.), XV, 851, p. 556 — Will. Cornell v. Hay (Com. PI.), V, 304, p. 408 — Public Co. Cornforth, Geipel v. Cornisli v. Clark (Bq. C), III, 695, pp. 337, 328 — Fraudulent Conveyances. Corporation of Trinity House, Lords Bailiff v. Corrigan, AsUor v. Corser v. Cartwright (H. of L.), XIV, 115 ; affirming S. C, VII, 509 ; p. 168 — Devise, 196 — Evidence, 302-303 — Executors, etc. Cory v. Bristow (C. P. Div.), XV, 337, p. 485 — Taxation, do , Kiah v. do V. Patton (Q. B.), X, 189; affirming S. C, 1, 338 i p. 363 — Insurance, Mar. Costa Eica v. Erlanger (Chan. Div.), XV, 690 ; reversing S. C, XI, 653, pp. 888, 389— Practice. Cote, Ex parte (Chan. App.), VHI, 700, p. 46 — Bills and Notes. Cotton's Estate, Matter of (Chan. Div.), XV, 711, p. 496 — Trusts. Cotton, Regina v. Cottrell V. Cottrell (Prob. and Div.), Ill, 475, p. 523— Will. do Finney (Chan. App.), X, 576, pp. 437, 438 — Redemption . Council of Sheffield, Haigh v. Counhaye, Matter of (Q. B.), VI, 131, p. 305 — Extradition. Coupland, Howell v. Court of Wards, Mollwo v. Couston, In re, Ex parte Vaux (Chan. App.), X, 613, p. 36 — Bankruptcy, do do Ward (Chan. App.), IV, 833, p. 35 — Bankruptcy, do do Watkins (Chan. App.), VI, 466, p. 35 — Bankruptcy. do V. Chapman (Sc. and Div. App.), Ill, 187, p. 446 — Sale. Covell V. Covell (Prob. and Div.), IV, 647, p. 10 —Alimony. Coverdale v. Eastwood (Eq. C), V. 755, p. 316 — Marriage' Settlement. Coward's Purehase, Matter of (Eq. C), XIII, 713, p. 107 — Costs, 337— Hus- band and Wife. Cowley, England v. Cox, Matter of (Chan. Div.), XV 756, p. 36 — Bankruptcy, do , Addison v. , do V. Leigh (Q. B.), VIII, 374, p. 390 — Landlord and Tenant, do , Watson v. Crabb, Dancer v. Cragoe v. Jones (Exch.), IV., 458, pp. 403, 404 — Principal and Surety. Crampton v. Varna Ry. Co. (Chan. App.), Ill, 509, p. 479 — Specific Perf. Crawford, In re, Ex parte Keran (Chan. App.), X, 718, p. 33 -^ Bankruptcy. Crawley v. Price (Q. B.) XIII, 348, p. 384 — Landlord and Tenant, do , Regina v. Crealock, Heath v. Creasy, Elmer v. Credit Poncier, etc.. Crouch v. Creese, Regina V. Crenver Wheal, etc., Co. (Chan. App.) IV, 748, p. 480 — Public Co. Crippin, Simpson v. Crisp V. Crisp (Prob. and Div.), IV, 655, p. 318- Marriage Settlement. TABLE OP OASES EEPOETED. 661 Crispin, In re (Chan. App.), V, 600, pp. 25, 26 — Bankruptcy. Crofts, Billson v Crompton v. Lea (Eq. C), XI, 719, p. "346— Injunction. Crook, mil V. Cross V. Maltby (Eq. C), XV, 384, p. 167 — Definitions, 558 — Will. Crosse v. Raw (Bxch.), S, 386, p. 383 — Landlord and Ten. Crossland, Banks v. Crossley v. May cock (Eq. C), IX, 737, p. 476— Specific Perf. Crouch V. Credit Foncier (Q. B.), VI, 108, p. 46 — Bills and Notes, 54, 55 — Bonds. do _ Tregonning (Exch.), 1, 195, p. 389 — Landlord and Ten. Crowley, Matter of (Eq. C), IX, 739, p. 59 — Broker, 343 — Indemnity. Crow Orchard Collieries Co., Ashcroft v. Crozier V. Crozier (Eq. C), V, 849, p. 531 — Will. Cruikshank, Gibbs v. Cullum, Eegina v. Cull's Trusts, Matter of (Eq. C), XV, 493, p. 496 — Trusts Cumberland, Scott v . Cunliffe, Great Western Ins. Co . v. Cunninghame V. Anstruther (Sc. App.), Ill, 169, p. 315 — Fraud, 318, 319 — Marriage Settl. Cuno V. Guno (Sc. and Div. App.), VI, 73, p. 173 — Divorce. Curnick v. Tucker (Eq. C), VII, 845, p. 565— Will. Currie v. Misa (Exch.), XII, 593, p. 53— Bona fide holder. do , Wotherspoon v. Curtis V. Williamson (Q. B.), XI, 149, p. 183 — Election, 399, 400 — Principal and Agent. Cuthbertson, In re. Ex parte Edey (Eq. C), XI, 831, p. 33 — Bankruptcy. do * , Jones v. Dagenham Dock Co., Ex parte Hulae (Chan. App.), VII, 518, p. 93 — Contract. Daglish, Ex parte, In re. Wilde (Chan. App.), VII, 563, pp. 310, 311 — Fixtures. . Dakyns, Stark v. Dance v. Goldingham (Chan. App.), VII, 461, p. 350 — Injunction. Dancer v. Crabb (Prob. and Div.), VI, 375, pp. 533, 534 — Will Daniel's Trusts, Matter of (Chan. Div.), XV, 794, p. 318 — Marriage Settlement Daniels v. Harris (Com. PI.), XI, 306, p. 363 — Insurance, Mar. Daniel v. Stepney (Exch.), IX, 495, p. 170 — Distress. Danzey, Begina v. Dapueto v. Wyllie. The Pieve Superiore (Priv. C), IX, 364, p. 4 — Admiralty. D'Arc v. The London & N. W. Ry. Co. (Com. PL), IX, 417, p. 68 — Carrier,* 165 — Definitions. Darby, Smith v. Davey v. Wietlisbach (Eq. C), V, 843, p. 365 — Partition. David, Miller v. Davidson's Trust, Matter of (Eq. C), V, 893, p. 33 — Bankruptcy. Davies' Trust, Matter of (Eq. C), I, 635, p. 295 — Legacy, 547— Will. do V. Brecknell (Prob. and Div.), VI, 369, p. 356— New Trial, do , Copeland v. 662 TABLE OF CASES EBPORTED. Da vies v. Fowler (Bq. C), VI, 773, p. 536— Will. ' do Gregory (Prob. and Div.), V, 533, p. 539 — Will. do Harvey (Q. B.), IX, 367, p. 361 — Officer. Davis V. Duncan (Com. PI.), X, 338, p. 301 —Libel. Dawes, Matter of. In re Husband (Eq. C), XII, 830, p. 43 — Bankruptcy. do V. Harness (Com. PI.), XI, 333, p. 163 — Defense, 379 — Pleading. Dawkins v. Lord Rokeby (H. of L.), XIV, 137 ; affirming S. C, V, 313, p. 302 — Libel. Dawson v. Fitzgerald (Bxch.), VII, 393, p. 93 — Contract. do Labouchere v. do V. , Midland By. Co. (Exch.), IV, 418, p. 435 — Railway Co. do Small (Eq. C. ), IX, 685, p . 73 — Charities. do do (Chan. App.), X, 648, p. 541 — Will. Daynes, Reginav. Dean, etc., Mordue v. De Bay v. Griffin (Chan. App.), XII, 731, p. 19 — Attorney. De Castro, Begina v. D'Byncourt'v. Gregory (Chan. Div.), XV, 843, p. 535— Will. Delamere, Owen v. De La Saussaye, Matter of Goods of (Prob. and Div.), V,, 535, p. 523— Will. Delbridge, Richardson v. . De Lisie v. Hodges (Eq. C), IX, 618, p. 543 — Will. Delves v. Delves (Eq. C), XIII, 633 p. 30— Auction Sale. Denham, Hirst v. Dennett v. Atherton (Q. B.), II, 77, p. 383— Landlord and Ten. Dennis v. Whetham (Q. B.), VIII, 380, p. 459 — Sheriff. Denyssen v. Mostert (Priv. C), III, 112, p. 531 — Will. Dent's Case (Eq. C), V, 905, pp. 429, 430— Public Co. De Serre v. Clarke (Eq. C), XI, 554, p. 385 —Power. Deverill v. Burnell (Com. PL), VI, 334, p. 93 — Contralct, 158 — Damages. Deveze, Matter of, Ex parte Bamett (Chan. App.), VIII, 873, p. 39 — Bank, ruptcy . do do Ex parte Cote (Chan. App.), VIII, 700, p. 46 — Bills and Notes. Dewhurst, Matter of (Chan. App.), VII, 504, p. 43 — Bankruptcy. Dewitte v . Palin (Eq . 0. ), III, 733, p . 343 — Infant . De Wolf V. Archangel Ins. Co. (Q. B.), IX, 383, p. 262 —Insurance, Mar. De Worms, Baron v. Mellier (Eq. C), VI, 868, p. 15 — Arbitration, 354 — In- jun Aion. Dick, Kimberly v. Diokeson v. Hilliard (Exch.), VIII, 533, p. 301 — Libel. Die Elbinger Actien, etc. v. Claye (Q. B.), VI, 81, p. 396 — Principal and Agt. Dilkes, Matter of (Prob. and Div.), X, 519, p. 515 — Will. Dimond v. Bostock (Chan. App.), XIl) 763, p 538 — Will. Dinn v. Blake (Com. PI.), XII, 449, p. 15 — Arbitration. Directors, etc., of TafF Valley Ry. Co. v. McNabb (H. of L.), VI, 1, p. 433 — Railway Co. TABLE OP CASES EEPORTED. 663 Birectors, etc., of TafiF Valley By. Co., Arnold v. do v. Birch (Exch.), V, 880, p. 254 — Inn- keeper, do ' V. Evans (H. of L.), IV, 1, pp. 436, 437 — Public Co. do V. London Small Arms Co. (Q. B.), XI, 198, p. 375 — Patent, do V. Muckleston (Chan. App. IV), 831, p. 338 — Mortgage, do , Wimbeldon, etc.. Commons, Conservators of V. Doherty, Regina v. Donaldson, In re Goods of (Prob. and Div.), V, 538, p. 535 — Will. ' Donisthorpe, Matter of (Chan. App.), XI, 433, p. 493 — Trusts, etc. Dorin v. Dorin (H. of L.), XIII, 90 j modifying S. C, IX, 639; pp. 163, 164 — Definitions, 554 — Will. Dougan's Case, In re Empire Ass. Co. (Chan. App.), VI, 478, p. 438 — Public Co- Douglass, Mackay v. do Moriitt v. Dovir V. Black (Priv. C), XII, 156, p. 55 — Bonds. Doward v. Lindsay (Priv. C), VUI, 361, p. 464 — Ships, etc. Dowdeswell, Stanley v. Dowding, Fussell v. Downing, Gill v. Dripps, Regina v. Duboise, Heyman v. Du Buisson, Shand v. Dudgeon v. Pembroke" (Q. B.), X, 193, pp. 363, 365 — Insurance, Mar. Dudlow, Wilds V. Duffield, Potter v. Dugdale v. Dugdale (Eq. C), III, 710, p. 314 — Former Adj.. 393 — Legacy. do v. Lovering (Com. PI.), XII, 316, p. 343 — Indemnity. • Duke, Angell v. ♦ Duncan v. Cashin (Com. PL), XIV, 411, p. 337 — Husband and Wf., '374 — Interpleader. do , Davis v. do v. Hill (Exch.), VI, 303, pp. 398, 399 — Principal and Agt. do V. Koster, The Teutonia (Priv. C), II, 536, p. .79 — Charter Party. Dunn Y. Birmingham Canal Co. (Q. B.), I, 38-3 ; affirmed, S. C, IV, 308 ; pp. 340, 341 — Negligence, do , Gainsford v. Dunne v. English (Eq. C.), X, 837, pp. 191, 195 — Evidence, 392 — Practice, 400 — Principal and Agt. Durance, Goods of (Prob. and Div.), HI, 483, pp. 533, 538— Will. Dyar, McGowan v. Eadon v. Jeflcock (Exch.), HI, 458, p. 336 — Mines. Eagles V. Le Breton (Eq. C), V, 776, p. 166 — Definitions, 557 — Will. Eales V. Drake (Chan, Div.), XV, 703, p. 385 — Power, 558 — Will. 664 TABLE OP CASES RBPOETED. Earl Beauchamp v. Winn (H. of L.), VI, 37, p. 333 — Grant, 337 — Mistake. East, Matter of (Chan. App.), VI, 585, p. 493 — Trusts. Bast and West India Dock Co., Jebsen v. Easterbrook, Saxby v Eastwood, Coverdale v. do V. Miller (Q. B.), IX, 374, p. 166 — Definitions, 338 — Gaming. Eaton, Maynard v. Ebbs V. Boulnois (Chan. App.), XIV, 729, pp. 81, 33 — Bankruptcy. Ebsworth v. Alliance Mar. Ins. Co. (Com. PL), VII, 155, pp. 359, 360 — Insur- ance, Mar. Ebury, Lord, Beattie v, Eddowes, Stewart v. Edey, Ex parte (Eq. C), XI, 831, p. 33 — Bankruptcy. Edgeware Highway Board v. Harrow Dist. Gas Co. (Q. B.), XI, 164, p. 91 — Contract, 336 — Highway. Edwards, Matter of. In re London, etc., Ry. Act (Chan. App.), VIII, 760, p. 316 — Marriage settlement. Edwards v, Edwards (Chan. Div.), XV, 846, p. 436 — Receiver. do Warden (Chan. App.), X, 551, p. 46 — Benefit Soc, 377, 378 — Jurisdiction, 309 — Limitations, Stat. of. do , Regina v. do , Ridgway v. Egerton, Roberts v. Eggington, Smith v. ' Eiffe, Hilliard v. • Elbinger Actien Gesellschaft, etc., v. Armstrong (Q. B.), X, 133, p. 156' — Eley V. Positive, etc.. Life Assurance Co. (Ex. Div.), XV, 271, pp. 88, 90 — Con- tract. Elkan, Upman v. Ellens, The Two, Johnson v. Black (Priv. C), II 516, p. 460 — Ships, etc. Elliott, Rodoconachi v. Ellis' ^Trusts, Matter of (Eq. C), IX, 611, p. 487 — Tenant for life. do V. Barker (Chan. App.), I, 460, p. 161 — Deed, 495 — Trusts. do V. Great Western Ry. Co. (Com. PI.), X, 393, p. 354 — Negligence. do V. Loftus Iron Co. (Com. PI.), XI, 314, p. 11 — Animals. do V. Silber (Chan. App.), IV, 771, p. 35 — Bankruptcy. do , Stock V. do V. Wilmot (Exch.), XI, 338, p. 403 — Principal and Sur. EllwoOd, Lyle v. Elmer v. Creasy (Chan. App.), VIII, 735, .p. 379 — Pleading, 389 — Practice. Elpis, The (Adm. and Eccl.), V, 546, pp. 55, 56— Bottomry! Else V. Else (Eq. C), I, 645, pp. 477, 478 — Specific perf. Emma Silver Mining Co., In re (Chan. App.), XII, 701, p. 390 — Practice. Empire Assurance Co., In re (Chan. App.), VI, 478; p. 428 — Pablic Co. Engelback v. Nixon (Com. PI.), XIV, 481, p. 374 — Interpleader. England, In re. Ex parte Hare (Chan. App.), XII, 711, p. 31 — Bankruptcy, do V. Cowley (Exch.), IV, 497, p. 491 — Trover. TABLE OF OASES EEPOETED. 665 English, Dunne v. do Hegina v. . Enthoven, Kellock v. Erlanger, Costa Rica v. Erskine v. Adeane (Chan. App.), VI, 594, p. 281 — Landlord and Ten Esse-x, Brewery Co. (Eq. C), X, 819, p. 436 — Public Co. Essex, Earl of, Astley v. Essex V. Daniel (Com. PI.), XIV, 397, p. 508 — Vendor and Purch. Eugenie, The (Adm. and Eccl.), VII, 360, p 57 — Bottomry. European Bank, Matter of (Chan. App.), IV, 745, p. 454 — SetoflF Eustace, Matter of (Prob. and Div.), "K, 533, p. 533 — Will. Evans v. Bear (Chan. App.), XI, 443, p. 88 — Contempt. do , Cope V. do , Dixon v. do V. Hooper (Q. B. Div.), XV, 179, p. 373— Insurance, Mar., 864 — Parties. do V. Roe (Com. PI.), 116, p. 96 — Contract, 109 — Costs, 195 — Evidence. Evanturel v. Evanturel (Priv. C), XI, 48, pp. 391, 393 — Legacy. Eve, Burgess v. do , James v. Evens, Payne v. Everingham v. Ivatt (Exoh.), VI, 131, pp. 380, 381 — Landlord and Ten. Express, The (Adm. and Eccl.), IV, 633, p. 76 — Charter Party. Eyden, Burton v. Eynon, Matter of goods of (Prob. and Div.), VI, 370, pp. 514, 515— Will. Fairland v. Percy (Prob. and Div.), XII, 678, p. 200 — Executors, etc. Falk, Lookhart v. Falvey v. Stanford (Q B.), XI, 146, p. 355 — New Trial. Pane v. Fane (Eq. C), XV, 552, pp. 327, 328 — Mistake, 458 — Settlement. FarhaU V. Parhall (Chan. App.), I, 468, p. 202 — Executors, etc. Famham, Stimson v. Farquhar v. Hadden (C:!han. App.), I, 409, pp. 531, 532, 546 — Will. Parrell, Regina v. Farrer v. St. Catherine's College (Eq. C), VI, 615, pp. 532, 542 — Will. Fastuedge, Matter of. Ex parte Kemp (Chan, App.), VIII, 933, p. 33— Bank- ruptcy, 164 — Definitions. Fawcett, Harriss v. Featherstone v. Cooke (Eq. C), VI, 764, p. 436 — Receiver. Featherstou v. Wilkinson (Exch.), IV, 493, p. 156 — Damages. -Fell V. Biddolph (Com. PI.), XIV, 527, p. 538 — WUl. do Whittaker (Q. B.), I, 26, p. 3 — Action, 386— Landlord and Ten. Penton v Blackwood (Priv. C), VIII, 133, p. 304 — Extinguishment, 331 — Mortgage, 440 — Renewal Note Fenwick, John, Matter of (Adm. and Eccl.), 11,154, p. 465 — Ships, etc. do , Bows V. ^ do V. East London, etc., Ry. Co, (Eq. C), XV, 480, p. 348 — Injunction, 434 — Railway Go. Ffrench, Belamy v. Fldden, Ross v. 84 666 TABLE OF CASES KEPOETED. Fiddey, Matter of (Chan. App.), Ill, 623, p. 30 — Attorney, 188 — Estoppel. do Hoghton v. Fielden v. Ash worth (Eq. C), XV, 406, p. 537 — Will. Findlater, Raggett v. Finlinson v. Porter (Q. B.),'Xn,350, p. 180 — Easement. Finnegan v. James (Eq. C), XI, 683, pp; 375, 376 — Patenta Finney, Cottrell v. do Eegina v. • First National Bank, Citizens' Bank v. Firth V. Midland By. Co. (Eq. C), XIII, 651, p. 475 — Specific Pert Fischer v. Popham (Prob. and Div.), XIII, 469, p. 516— Will. • Fisher v.'AppolUnaris Co. (Chan. App.), XII, 736, p. 87 — Compromise, 177 — Duress. Fisher v. Liverpool Mar. Ins. Co. (Q. B.), IX, 353 ; affirming S. 0., VII, 83, p. 359 — Insurance, Mar. do Wehater (Eq. C), III, Y48, p. 563 — Will. Fitzgerald, Dawson v. Fitzpatrick v. Kelly (Q. B.), VI, 94, pp. 7, 8 — Adulteration of Food. Fladgate, Perkins v. Fleet V. Murtou (Q. B.), I, 33, p. 60 — Broker, 193 — Evidence. Fletcher, Attorney-General v. do , Smith v. Flitters v Allfrey (Com. PI.), XI, 233, p. 313 — Former Adj. Flookton, Montague v. Flower v. Flower (Prob. and Biv.), Vllly 613, p. 176 — Divorce. do , Palmer v. Folkstone, Corporation of, v. Woodward (Eq, C), V, 777, p 63 — Building. Forbes Claim, In re Universal, etc., Ins. Co. (Eq. C), XII, 846, p 355 — Insur- ance, Fire. Forbes v. Watt (Sc. and Div. App.), II, 513, p. 91 — Contract. Ford V. Foster (Chan. App.), III. 538, p. ,353 —Injunction, 489 — Trade-mark, do Hart (Com. PI.), IX, 400, p. 441 — Residence. Forster v Abraham (Eq. C), IX, 579, pp. 493, 494 — Trusts. d&. Hopkinson v. Foster, Matter of (Prob. and Div.), I, 340, p. 198 — Executors, etc. do Ford v. do Shaw V. do 'Vyse v. Fothergill, Bain v. do V. Rowland (Eq. C), VII, 725, p. 345 — Injunction. Foulger v. Steadman (Q. B.), IV, 231, p. 490 — Trespass. Foulkes, Eegina v. Fowcett, Harris v. Fowkes V. Pascoe (Chan. App.), XII, 750, p. 233 — Gift. Fowler, Cook v. do Davis v. do Gray v. . » TABLE OF CASES EEPORTED. 667 Fowler v. HoUins (H. of L.), XW, 138 ; affirming S. C, III, 233, p. 60— Broker, 490 — Trover. do Loek (Com. PI.), H, 586, p. 330 — Master & SeTv. do Loek (Com. PI), XI, 368, p. 28 — Bailment. Pox V. Clarke (Q. B.), X, 178 ; reversing S. C, III, 291, p. 101 — Conveyance, 374 — Party wall. do Pox (Eq. C), XI, 836, p. 568 - Will. do Lownd^ (Eq. C), XII, 837, p. 78 — Charities. Foxall, Philips v. Foxon v. Gascoigne (Chan. App.), X, 651, p. 107 — Costs. Francesco v. Massey (Exch.), IV, 475, p. 77 — Charter Party. Francis, Eegina v. Franklin, Hood v. do Sandill v. Prazer v. Telegraph Constr., etc., Co. (Q. B.), Ill, 203, p. 48 — Bill of Lading. Frazer, Norris v. Freehold and Gen. Invest. Co., Matter of. Green's Case (Eq. C), X, 748, p. 436 — Public Co. Freer, Williamson v. Freeth v. Burr (Com. PI.), IX, 393, pp. 449, 450 — Sale. Freke v. Lord Carbery (Eq. C), VI, 812, p. 530— Will. Frost V. Knight (Exch.), I, 218, p. 58 — Breach of Promise, 98 — Contract. do , Jones V. FuUalove, Occleston v. Pulton V. Andrew (H. of L.), XII, 76, pp. 526, 537 — Will. Purber, Miles v. Furness, Regina v. do By. Co., Kirtstall Brewery Co. v. do do McCawley v. Fnssell v. Dowding (Eq. C), III, 801, p. 318 — Marriage Settle, Fynney, Gaunt v. Gabarron v. Kreeft (Exch.), XIV, 562, p.- 444 — Sale. Gainsford v. Dunn (Eq. C), IX, 607, p. 884 — Power. Gaitskeffs Trusts (Eq. C), V, 895. pp.' 539, 540 — Will. Galitzin, Matthael v. Gallin v. London and N. W. By. Co. (Q. B.), XII, 368, p. 68 — Carrier. Galway Election, Matter of (Weekly B.), II, 711, p. 183 — Election. Gambles v. Ocean Ins. Co. (Ex. Div.), XV, 360, p. 264 — Insurance, Mar. > Garden, etc.. Mining Co. v. McLister,(App. C), XV, 1, pp. 405, 415 — Public Co. Gardiner's Estate, Matter of (Eq. C), XV, 528, pp. 537, 538— Will. Garland v. Jacomb (Exch.), VI, 389, p. 370 — Partnership. Gamett v. McKewan (Exch.), IV, 419, p. 452 — Set-off. Garratt v. Weeks (Eq. C), XV, 528, pp. 587, 538 — Will. Garret, Moule v. Gascoigne, Foxon v. Gaudet v. Brown (Priv. C), VIII, 103, pp. 4, 5 — Admiralty, 461 — Ships, etc. Gaunt V. Fynney (Chan. App.), IV, 718, p. 360 — Nuisance. Geams v. Baker(Chan. App.), XII, 760, p. 180— Easement. * 668 . TABLE OP CASES EEPORTED. Gee V. Metropolitan Ry. Co. (Q. B.), V, 169, p. 348 — Negligence. Geipel v. Cornforth (Priv. C), VIII, 109, pp. 4, 5 —Admiralty. do Smith (Q. B.), II, 98, p. 80 — Charter Party. General Steam Nav. Co., Lebeau v. do do. Malcomson v. Gentry, Matter of Goods of (Prob and Div.), VI, 362, p. 523 — Will. Giacommetti v. Prodgers (Eq. C), III, 726; affirmed, S. C, V, 571, pp. 236, 337 — Husband and Wf . Gibbes, Matter of (Chan. Div.), XV, 667, p. 446 — Sale Gibbons, Berry v. do Regina v. Gibbs V. Cruikshank (Com. PI.), VI, 211, pp. 213, 214 — Former Adj., 490 — Trespass. do V. Kavid (Eq. C), XV, 379, p. 436 —Receiver. do , Overend, Gurney & Co. v . • Gibson, Matter of (Chan. App.), I, 433, p. 311 — Lunatic. do V. Barton (Q. B.), XIII, 273, pp. 405, 411 — Public Co. Gilbert v. Guignon (Chan. App.), IV, 724, p. 50 — Bill of Lading. Giles V. Melsom (H. of L.), IV, 110, p. 167 — Definitions, 535 —Will. do Warren (Prob and Div.), Ill, 478, p. 523 — Will. Gilford, Pattisson v. Gill, Matter of Goods of (Prob. and Div.), VII, 848, p. 300 —Executors, etc. do , Cork V . do V. Downing (Eq. C), VII, 841, p. 357 — Insurance, Life, do , Hext V. Gill V. Manchester, etc., Ry. Co. (Q. B.), V, 187, p. 353 — Negligence. Gillam v. Taylor (Eq . C . ), VII, 595, p. 537 — Will. Gillett, Castle v. do , Osborn v. do V. Thornton (Eq. C), XIII, 530, pp. 370, 371 — Partnership. Glasgow, etc.,' Ry. Co., Makereth v. Glasse, Commissioners of Sewers v. Gledstanes, Matter of (Chan. App.), VII, 504, p. 43 — Bankruptcy. Glegg V. Rees (Chan. App.), I, 433, p. 364 — Parties, 380 — Pleading. Glengaber, The (Adm. and Eccl.), Ill, 486, p. 468 — Ships, etc. Glover, Aynsley v. do V. Coleman (Com. PL), XI, 375, p. 178 — Easement. Goddard v. Smith (Prob. and Div.), V, 504, p. 529 — Will. Goldingham, Dance v. Goldsmith, Regina v. Gomersall, In re. Ex parte Gordon (Eq. C), XIII, 809, p. 16 — Assignee, 37 — Bankruptcy. Gomes, Ex Parte (Chan. App.), XIV, 839, p. 34 — Banks. Gooch's Case (Chan. App.), IV, 890 ; reversing S. C, III, 813, p. 433 — Pub- lic Co. Goodrich v. Goodrich ( Prob. and Div.), VIII, 616, p. 83— Children. Goodson V. Richardson (Chan. App.), VIII, 835, pp. 246, 247 — Injunction. Goodwin's Trusts (Eq. C), IX, 477, p. 164 — Definitions, 555— Will. TABLE OP OASES EEPOETED. 669 Goodwin v. Roberts (Exch.), XIV, 591;; affirming S. C.,Xn,535, p. 355 — Ne- gotiable Instr. Gordon.sMatter of (CJlian. App.), XI, 513, p. 31 — Bankruptcy. do do 'Chan. App.), VI, 484, p. 38 — Bankruptcy, 245 — Injunc- tion, do do (Cban. App.), XII, 699, p. 313 — Lunatic, do do (Eq. C), XIII, 809, p. 16 —Assignee, 87— Bankruptcy Gorris v. Scott (Excli.), VIII, 561, p. 3 — Action. Gorrissen's Case (Chan. App.), VI, 456, p. 439 —Public Co. Gott, Allen v. Goulden, Turner v. Gowan v. Broughton (Eq . C), XI, 687, p. 4 — Administration. do V. Christie (Se. App.), V, 114, p. 334 — Mines. Gower V. Gower (Prov. and Div.), IV, 657, p. 174 — Divorce. Grace v. Newman (Eq. C), XIII, 553, p. 103 — Copyright. Graham v. McCulloch (Eq. C), XV, 401, p. 36 — Bankruptcy . Grain's Case (Chan. Div.), XV, 763, p. 355 — Insurance Co. Gratrex, Regina v . Gravely v. Barnard (Ex. C), X, 833, p. 88 — Contract, 345, 34^ — Injunction. Gray, Burton v. do V. Fowler (Exch.), VJI, 336, p. 505 — Vendor and Purch. do V. Lewis (Chan. App.), VII, 539, p. 419 — Public Co. do V. VTarner (Eq. C . ), VII, 591; pp. 194, 195 — Evidence, 538 — Will. Great Eastern Ey., Biscoe v. do V. Turner (Chan. App.), IV, 836, pp. 491, 493 — Trusts, do , United Land Co. v. Great Northern By. Co., Maiden v. do , Skinner v. do V. Swaffield (Exch.), VIII, 567, p. 71 — Carrier, do V. Witham (Com. PL), VII, 130, p. 90 — Contract. Great S. & "W. Ey. Co., Cork Distilleries Co. v. Great Western Colliery Co., Britton v. do V. Tucker (Chan. App.), VIII, 930, p. 389 — Practice. Great Western Ins . Co., Cator v. do V. GunlifFe (Chan. App.), X, 561, pp. 61, 63 — Broker, 378 — Jurisdiction. Great Western Ey. Co. v. Blower (Weekly E.), II, 700, p. 65 — Carrier. - do ' , Bradburn v. do • , , Ellis v. do V. May (H. of L.), X, 38, pp. 434, 435— Railway Co. do , Midland Ey. v. do , Philips V. do , Williams v. Green's Case, In re Freehold, etc., Co. (Eq. C), X, 748, p. 436 — Public Co. Green, Matter of (Chan. App.), XII, 734, p. 493 —Trusts, do V. Green (Prob and Div.), VII, 353, p. 171 — Divorce, do , Phosphate of Lime Co. v. do , Spoor V. Greene v. West Cheshire Ey. Co. (Eq. C), I, 546, p. 473 — Specific Perf. 670 TABLE OP CASES REPOKTED. Greener, Manox .v. Greenfield v. Reay (Q. B.), XII, 373, pp. 369, 390 — Practice. Qreenhalgh, Taylor v. Greenock, etc., Ry. Co., Caledonian Ry. Co. v. Greenwood, Bourdin v. Gregg V. Smith (Q. B.), V, 349, p. 378 — Peddley. Gregory, Davis v. do , Plumer v. Gresham Life Assurance Co., In re (Chan. App.), V, 658, p. 413 — Public Co. Grier v. Grier (H. of L.), IV, 71, p. 314 — Marriage Articles. Grierson v. Cliesliire_ Lines Committee (Eq. C), XI, 691, p. 186 — Eminent ' Domain. Griffin, DeBay v. Griffith, Matter of goods (Prob. and Div.), IV, 683, p. 535 — Will. Griffiths V. Griffith (Prob. and DiV.), I, 386, p. 514— Will, do V. Jones (Eq. C), V, 847, p. 375 — Judicial Sale. Grimoldby v. Wells (Com. PI.), XII, 451, p. 446 — Sale. Gronow, Morgan v. Grossi V. Grossi/Prob. and Div.), VII, 350, p. 174 — Divorce. Groves, Mercer v. Guardians of Halifax Union v. Wheelwright (Exch.), XII, 617, p. 34 — Banks, 345 — Negligence, do of Lampeter Union, Pegge v. Guerra, Cook v. Guignon, Gilbert v. Gumble, Regina v. Gummond, Budge v. Gumpast, Hart v. Gunn V. Bolckow (Chan. App.), XIV, 739, p. 393 — Practice, 445 — Sale. do V. Jloberts (Com. PI.), IX, 433, p. 460— Ships, etc. Gurety, Larios v. Gurney, Peck v. Gwinnell v. Earner (Com, PI.), XIV, 493, pp. 389, 390 — Landlord and Ten.,. 848 — Negligence. Gye, Knox v. H v. P (Prob. and Div.), VII, 357, p. 173 — Divorce. Hackett v. Baiss (Eq. C), XV, 459, p. 348 — Injunction. Hadden, Farquhar v. Hadgrath v. Hewith (Q. B.), XIII, 293, p . 468 — Ships. . Hagan, Regina v. Haigh V. Eaye (Chan. App.), II, 350, p. 336 — Frauds, Stat, of, 493 — Trusts. do V. Town Council of Sheffield (Q. B.), XI, 173, p. 133 — Criminal Law. Hale, Bx parte (Chan. Div.), XV, 743, p. 386 — Landlord and Ten. do Matter of (Prob. and Div.), XI, 893, p. 198 — Executors, etc. do Phipps V. Halfhide v. Robinson (Chan. App.), VIII, 918, p. 811 — Lunatic, 364 — Parti- tion. Hall v. Hall (Chan. App.), V, 645; reversing S. C, III, 783; p. 456 — Settle- ment. TABLE OF CASES REPORTED.'^ 671 Hall V. Levy (Com. PI.). XI, 313, p. 86 — Compromise, 214 — Former Adj, do , Nicholas v. do V. Nixon (Q. B.), XII, 218, pp. 361, 362 — Ordinances, do V. North Eastern Ry. Co. (Q. B.), XIV, 269, p. 69 — Carrier, do V. Nottingham (Ex. Div.), XV, 354, pp. 177, 178 — Basement, do , Regina v. Halliday, Ex parte. In re Leibert (Chan. App.), IV, 893, p. 27 — Bankruptcy. do , Vaughan v. Hamer V. Sharp (Bq. C), XI, 714, p. 394 — Principal and Agt. Hamilton v. Dallas (Chan. Div.), XV, 734, p. 176 — Domicile. do V. Hector (Eq. C), II, 393, p. 341 — Husband and Wf . Hammett, Aberdare Local Board v. Hammond, Holmes v. do V. Vestry of St. Pancras (Com. PI." IX, 409, p. 343 — Negligence. Hampton, Regina v. Hancock, Regina v. Hannaford v. Hannaford (Q. B.), 1, 23, pp. 566, 567 — Will. Hansen, Ch4stofferson v. Hardaker, Stead v. Harding, Bx parte (Eq. C), V. 816, p. 34 — Bankruptcy, 226, 237 — Fraudulent Conv. Harding v. Headingtou (Q. B.), VIII, 307, p. 504 —Turnpike. Hardyjick v. Hardwick (Eq. C), VI, 695, p. 545 — "Will. do , Mayor of Kidderminster v. Hardy v. Metrop. Land and Finance Co. (Chan. App.), II, 337, p. 397 — Princi- pal and Agt. • Hare, Ex parte. In re England (Chan. App.), XII, 711, p. 31 — Bankruptcy. Hargreaves v. Diddams (Q. B.), XIV, 383, p. 209 — Fishery, 276 — Jurisdiction . Harness, Dawes v. Harnett v. Baker (Bq. C), XIII, 598, p. 478 — Specific Pert Harris, Ex parte (Bq. C), XI, 829, p. 12 — Appeal, 41 — Bankruptcy, 107 — Costs. do Matter of (Chan. App.), IV, 750, p. 35 — Bankruptcy. do Case (Chan..App. ), III, 539, p. 88 — Contract, do , Daniels v. do V. Fawcett (Chan. App ), VII, 430 ; affirming S. C, V, 860, p. 335 — &iia.T- anty . • do V. Mulkern (Ex. Div.), XV, 383, p. 314 — Former Adj. do V. Nickerson- (Q. B.), V, 338, p. 21 — Auctioneer, do V. Scaramanga (Com. PI.), Ill, 357, p^ 369 — Insui»nce, Mar. do V. Venables (Bxch.), II, 142, p. 233 — Guaranty . Harrison, Ballacorkish Silver, etc., Co. v. do V. Bank of Australasia (Exch.), 1, 162, pp. 228, 329 — General Average . do , Bide v. do , Brinsmead v. do , Cockayne v. do V. Harrison (Chan. App.), V, 574, p. 396 — Lex Loci. dp , Hen wood v. do V. Mexican Ry. Co. (Bq. C), XII, 793, p. 406 — Public Co, 672 TABLE OP GASES EEPORTBD. Harrison, Miles v. do , Reglna v. Harrow Gas Co., Bdgeware Highway Board v. Hart, Pordv. do V. Gumpach (Priv. C), IV, 138, pp. 303, 303 — Libel, 381 — Pleaang. do V. Herwig (Chan. App.), VII, 424, p. 386 — Practice, 474— Specific Perf. Harter v. Harter (Prob. and Div.), V, 508, p. 528 — Will . Hartley's Case (Chan. App.), XI, 511, p. 415 — Public Co. do , Batut v. Harvey, Davies y do V. Walters (Com. PI.), IV, 393, p. 178 — Easement . do V. Wilde (Eq. C), III, 811, p. 198— Evidence. Hasluck V. Pedley,(Eq. C), XI, 833, pp. 13, 14 — Apportionment . Hassall, Matter of (Chan. App.), VIII, 876, p. 33 — Bankruptcy. Hastings, Corporation of , v. Ivall(Eq. C), XIII, 501, p. 246 — Injunction, 450, 451 ^ Seashore, 490 — Trespass. Hathesing v. Laing (Eq. C), VII, 705, p. 47 — Bill of Lading, 153 — Custom. Hatton, In re (Chan. App.), Ill, 594, p. 86 — Composition. Haviside, Marine Invest Co. v. Hawker, Ex parte, In re Keely (Chan. App.), I, 503, p. 26 — Bankruptcy. do , Mill V. Hawkins, Higginbotham v. do Walrond v. Hawtry v. Butlin (Q. B), V, 241, p. 310 — Fixtures. Hay, Matter of (Chan. App.), XIV, 809, pp. 425, 436 — Public Co. • do , Cornell v. Hayes v. Oatley (Eq. C), II, 409, pp. 500, 501 — Trusts. Hazleton, Begin a v. Head v. Tattersall (Exch.) I, 140, p. 447 — Sale. Headdington, Harding v. Heales, Williams v. Hearn, Child v. ■ Heartley v. Nicholson (Eq. C), XI, 816, p. 230 — Gift. 491 — Trusts. Heaaman v. Pearse (Chan. App.), Ill, 557, p. 568 — Will. Heath v. Crealock (Eq. C), V, 836, p. 20— Attorney. V. (Chan. App.), XI, 416; niodifying S. C, IX, 756, p. 54 — Bona fide Holder, 193 — Evidence, 331 — Mortgage, 498 — Trusts. Heathcote's Trust (Chan. App.), VIII, 716, p. 540 — Will. Heathfield, Sandler v. Hector, Collis v. do , Hamilton v. Hedges' Trust, Matter of (Eq. C), X, 740,. p. 533 — Will. do V. Tagg (Exch.), II, 679, p. 451 — Seduction. Heilbutt V. Hickson (Com. PI.), Ill, 338, pp. ^54, 155 — Damages, 448— Sale. Helliwell, Pearson v. Hellyar, Burt v. Hemming v. Batchelor (Exch.), XII, 515, p. 393 — Practice. Henderson, Bank of India v. TABLE OF CASES REPORTED. 673 Henderson, v. Comptoir d'Bscompte de Paris (Priv. C), VIII, 209, p. 50 — Bill of Lading, do , Notara v. do V. Stevenson (So. App.), XIII, 141, p. 67 — Carrier. Hendricks v. Australasian Ins. Co. (Com. PL), X, 240, p. 270 — Insurance, Mar. Henry, Matter of (Chan. App.), IV, 838, p. 374 — Patent. Henty, Caballero v. Henwood v. Harrison (Com. PL), III, 398, pp. 300, 30l — Libel. Hercules Ins. Co., Matter of (Eq. C), XI, 841, p. 189 — EstoppeL Hermann v. Hodges (Eq. C), VI, 615, p. 473— Specific Pert Herwig, Hart v. Heseltine, Regina v. Hespelers, Carling's & Walab's cases (Clian. Div.), XV, 676, p. 438— Public Co. Hewitt V. Jardine (Eq. C), 11, 421, p. 553 — Will. Hewsons, Tlie (Priv. C), VIII, 103, pp. 4, 5 — Admiralty. Hext V. Gill (Chan. App.), IIL 574, pp. 101 , 102 ^ Conveyance, 167 — Definitions , 251 — Inj unction, 323 — Minerals. Heymau v. Dubois (Eq. C), I, 630, p. 404— Principal & Sur. do _ V. The Queen (Q. B.), IV, 241, pp. 115, 136 — Criminal Law. Hey wood v. Pickering (Q. B.), IX, 363, p. 47— Bills and Notes. Hibbert v. Hibbert (Eq. C), V, 884, p. 166 — Definitions, 557 — Will. Hickman v. Haynes (Com. PI.), XIV, 447, pp. 162, 163 — Defeilse. do V. Upsall (Eq. C), XIII, 672, pp. 191, 196 — Evidence. . Hicks V. Ross (Eq. C), 111, 684, pp. 533, 538— Will. Hickson, Heilbutt v. Hide, Regina v. Hieronimus, Leather Co. v. Higginbotham v. Hawkins (Chan. App.), Ill, 568, p. 511 — Waste. Hilditch, Regina v. Hill, Best V. do V. Crook (H. of L.), VII, 1, p. 553 — Will. do , Duncan v. do , Lacey v. do V. South Staflbrdshire Ry. Co. (Eq. C), IX, 704, p. 374— Interest. do V. Wilson (Chan. App.), VII, 449, p. 194 — Evidence, 329, 230 — Gift. Hillam, Regina v. Hilliard, Dickinson v. do V. Eifie (H. of L.), IX, 27, p. 13— Appeal, 393 —Practice. Hills, Carey v. do V. Wates (Com. PL), X, 359, p. 390 — Practice . Hinde v. Liddell (Q. B.), XII, 296, p. 160 — Damages. Hindley Local Board, White v. Hindustan, Bank of (Chan. App.), VIH, 678, pp. 405, 406 —Public Co. Hinks, Rollins v. • Hiort V. Bott (Exch.), VIII, 529, p. 100 — Conversion. Hippisley's Case (Chan. App.), VIII, 678, pp. 405, 406 — Public Co. Hirschman v. Budd (Exch.), V, 361, p. 47 — Bills and Notes, 161 — Defense. Hirst V. Denham (Eq. C), HI, 833, p. 488 — Trademark. . 85 674 TABLE OP CASES EEPOETBD. Hoare V. Bremridge (Eq. C), III, 824, p 187— Equity. do do (Cban. App.), IV, 729, p. 245 — Injunction, do , aifford v. Hobbs V. London and S. W. Ey. Co. (Q. B.), XI, 181, p. 154 — Damages. Hobson, Martini v. Hodge's Legacy, Matter of (Eq. C), VI, 666, p. 534 — Will. Hodgea, De Lisle v. do V. Fincham (Cbai!, Div.), XV, 632, p. 393 — Practice. do , Herman v. Hodgkin, Matter of (Eq. C), XV, 593, p. 40 — Bankruptcy. Hodgkinson V. Crowe (Chan. App.), XIV, 838, p. 93 — Contract, 164 — Defini- tions. Hodgson, Holland v. Hodaon, Wilson v. Hogati V. Wherley (Com. PI.), XIV, 474, p. 396 — Principal and Agt. Hogg V. Scott (Eq. C), X, 762, p. 104 — Copyright. Hoghton V. Fiddey (Eq. C), XI, "541, p. 53 — Bill of Review, 344 — Infant. Holbrooke, Arnold v. Holden, Regina v. Holdaworth, Regina v. Holker v. Porritt (Bxch.^, XII, 520; aflBrming S. C, IV, 480, p. 513 — Water- course. Holland v. Hodgson (Com. PI.), II, 655, pp. 209, 210 — Fixtures. do , Stock V. Hollins V. Fowler (H. of L.), XIV, 138 ; affirming S. C. , III, 232, p. 60 — Broker. 490 —Trover. do , do V. Hollis, Regina v. Holme V. Hammond (Excb.), II, 125, p., 368 — Partnership. Holmes V. Mather (Exch.), XIV, 548, p. 821 — Master and Serv., 351— Negli- gence. do , Mitchell v. do , Regina v. Holt, Chariesworth v. Holtby, Bell v. Holthausen, Ex parte (Chan. App.), X, 694, p. 296 — Lex loci. Honywood v. Honeywood(Eq. C), IX, 819, pp. 487, 488— Timber, 511— Waste. Hood V. Franklin (Eq. C. ), VI, 826, p. 455 — Settlement. Hooke V. Piper (Eq. C), III, 744, p. 499 — Trusts. Hookham v. Pottage (Chan. App.), IV, 778, p. 370 — Partnership. Hooper v. Smart (Eq. C), XI, 608, p. 480 — Specific Pert Hoopers, etc.. Telegraph Works, etc., Menier v. Hoosen, Matter of. In re Chapman (Chan. App.), IV, 863, p. 44 — Bankruptcy. Hope, Browne v. Hopkins, Matter of goods of (Prob. & Div.), XIII, 457,- p. 199 — Executor, etc. do v. Abbott (Ex. C), XI, 807, p. 167 — Definitions, 544 — Will. Hopkins' Trust (Eq. C), XI, 630, p. 165 — Definitions, 390 — Legacy. Hopkinson v. Forster (Eq. C), XI, 685, p. 17 — Assignment. TABLE OF CASES REPORTED. 675 Home V. Midland By. Co. (Com. PI.), IV, 369, affir.ming S. C, III, 390; p. 66 — Carrier, 153 — Damages. Hornstedt, Philips v. Horsford, Matter of (Prob. and Div.), XII, 673, pp. 514, 534 — Will. Hort's case (Chan, and Div.), XV, 762, p. 255 — Insurance Co. Hotten, Bradbury v. Houseley, Leman v. Howard, Matter of (Com. PI.), IX, 436, p. 9.— Affidavit. do V. Earl of Shrewsbury (Eq. C), IX, 603, p. 344 — Infant.' Howarth, In Matter of (Chan. App.), V, 633, pp. 343, 244 — Infant. Howell V. Coupland (Q. B,), X, 110, p. 450 — Sale, do , Reynolds v. do , Thomas v. Ho wells v. Landore, etc. , Co. (Q. B.), XI, 153, pp. 330, 331 — Master and Serv. Huddersfield v. Jacomb (Chan. App.), XI, 453, p. 15 — Arbitration, 185 — Emi- nent Domain. Hudson V. Cooke (Eq. C), 11, 361, p. 301— Executors, etc. do V. Stewart (Com. PI.), IX, 405, p. 195 — Evidence, 334 — Frauds, Stat. of. Hughes, Goods of (Prob. and Div.), VIII, 619, p. 199 — Executors, etc. Hugo V. Williams (Eq. C), III, 704, p. 565 — Will. Huguet's Case (Cox C. 0. ), VIII, 595, p. 206 — Extradition. Hull V. Christian (Eq. C), IX, 647, p. 13 — Annuity. Hulse, Ex parte. In re Dagenham Dock Co. (Chan. App.), VII, 518, p. 93 — Con- tract . Hulse V. Hulse (Prob. and Div.), II, 149, pp. 174, 175 — Divorce. Humphrey, Regina v. do , Roberts v. Hunt, Matter of Goods of (Prob. & Div.),XIII, 473, p. 337 —Mistake, 517 — Will. Hunter v. Cheshire (Chan. App.), VI, 592, p. 555 — Will. do V. Walters (Chan. App.), I, 437, p. 161 — Deed, 333 — Mortgage. Hurd, Lindsay Petroleum Co. v. Hurlstone, Stanford v. Hurst V. Hurst (Chan. App.), X, 733, p. 390 — Practice. Husband, Matter of. Ex parte Dawes (Eq. C), XII, 830, p. 43 — Bankruptcy. Hutchinson, Booth v. do , Morton v. do V. Tatham (Com. PL), VI, 330, p. 153 — Custom, 193,193— Evi- dence. Hutley V. Hutley (Q. B.), IV, 245, p. 72 — Champerty. Hutton V. Bullock (Q. B.), X, 184 ; affirming S. C, VI, 89, p. 394— Principal and Agt. Hyde v. Large (Eq. C), XI, 666, p. 386 — Practice. Ibbotson, Kitchen v. Ida, The (Adm. and Eccl), HI, 490, p. 56 — Bottomry. Iggulden, Lancefield v. Ihler, In re goods of (Prob. and Div.) V, 543, p. W8 — Executors, etc. Iliffe, Smith v. 676 TABLE OP OASES KEPORTBD. Imperial Land^Company, Matter of (Chan. App.), Ill, 539, p. 88 — Contract. Imperial Ottoman Bank, Borries v. India Chartered Bank, Latham v. India, Bank of, v. Henderson (Priv. C), IX, 375, p. 50 — Bill of Lading. India Kubber, etc., Co., Panama Telegraph Co. v. Inglesant v. Ingleaaut (Prob. and Div.), X. 536, p. 516 — Will. Ingram v. Soutten (H. of L.), XII, 40, p. 540— Will. Inman v. Inman (Eq. C), V, 838, p. 343 — Infant. lonides v. Pacific Ins. Co. (Q. B.), II, 637, p. 191 —Evidence, 358, 359 — Insur-- ance. Mar. do V. Pender (Q. B.), X, 159 pp. 363, 363 — Insurance, Mar. Ireland v. Livingston (H. of L.), II, 434, p. 395 — Principal and Agt. Ivall, Hastings v. Ivatt, Everingham v. Izard, Ex parte (Chan. App.), VIII, 860, p. 40 — Bankruptcy. Jackson, Allen v. do V. Metropolitan Ry. Co. (Com. PI.), XI, 344, p. 345 — Negligence, do V. Pease (Eq. C), XI, 700, p. 4 — Administration, 819 — Marshall- ing Assets. do , Regina v. do V. Union Mar. Ins. Co. (Com. PI.), XI, 390; affirming S. C, VI, 368, p. 81 —Charter Party, 368 — Insurance, Mar. Jacobs, Ex parte (Chan. App.), XII, 707, p. 403 — Principal & Sur, do V. Brett (Eq. C), XIII, 566, p. 404 — Prohibition, writ of. do , Meux V. do , Regina v. do V. Seward (H. of L.), II, 496, p. 393 — Practice, 486 — Tenant in Com. Jacomb, Huddersfield v James, Ex parte (Chan. App.), X, 619, pp. 43, 43 — Bankruptcy. do , In re (Eq. C), XI, 839, p. 13 — Appeal, 41 — Bankruptcy, 107 — Costs- do V. Eve (H. of L.), VII, 41, pp. 418, 419 — Public Co. do , Pinnegan v. do V. James (Eq. d.), II, 865, p. 353 — Injunction, do , London & S. W. Ry. Co. v. do V. May (H. of L.), VII, 85, p. 427 — Public Co., 501, 503 — Trusts, do , Miller v. do , Regina v. Jameson, White v. Jardine, Ex Parte, In re McManus (Chan. App.), XII, 748, pp. 380, 831 — Mort- gage, do , Hewitt v. Jay, Ex parte. In re Blenkhorn (Chan. App.), X, 678. p. 34 — Bankruptcy, do , In re Powis (Chan. App.), VIII, 783, p. 37 — Bankruptcy, do , Wulff V. Jebsen v, East and West India Dock Co. (Com. PI.), XII, 358, p. 455 — Set-off. Jecks, Matter of (Eq. C), I, 708, pp. 36, 43 — Bankruptcy. Jeffcock, Eadon v. Jeffries, Worthington v. TABLE OF OASES EEPOETED. 677 Jenkins, Jenkins v. do , Lawrence v. Jenner v. A'Beckett (Q. B.), 1, 9, p. 300 — Libel. Jenny Lind, The (Adm. and Eccl.), II,' 606, p. 460 — Ships, etc. Jervis v. Berridge (Chan. App.), V, 581, pp. 473, 474 —Specific Perf. do V. Wolf erstan (Eq. C), IX, 674, pp. 99, 100— Contribution, 203 — Execu- tors, etc., 343 — Indemnity, 393 — Legacy. Jesmond, The, and the Earl of Elgin (Priv. C), II, 64, p. 464.— Ships, etc Jevers, Talbot v. Jewsbury v. Mummery (Com. PI.), IV, 335, p. 304 — Executors, etc. do , Swift V. Jeyes v. Savage (Chan. App.), XIV, 783, p. 318 — Marriage Settle. Job V. Potton (Eq. 0.), XIII, 630, p. 486 -Tenant in Com John, Regina v. Johnson, Appleby v. do V. Black. The Two Ellens (Priv. C), 11,516, p. 460 — Ships, etc. do. V. Colam(Q. B.), XIV, 347, p. 280 — Jurisdiction, do Liver Alkali Co. v. do Regina v. do V. Roberts (Chan. App.), XIV, 751, p. 38 — Banks, etc. do Roper v. do Umfreville v. do Vestry of Bermondsey v. do Wilson v. Joint Stock Discount Co., Ex parte. In re Barnard's Banking Co. (Chan. App.), Xn, 704 ; affirming S. C, XI, 635, p. 31 — Bankruptcy. JoUiffe V. Wallasey Local Board (Com. PL), VIII, 389, pp. 343, 344 — Negli- gence. Jones, In re. Ex parte Lovering (Chan. App.), X, 636, p. 34 — Bankruptcy, do V. Chappell (Eq. C), XV, 475, p. 349 — Injunction, 358 — Nuisance, 513 — Waste, do , Cragoe v. do V. Cuthbertson (Q. B.), VII, 100 ; affirming S. C, I, 363, pp! 338, 241 — Husband and Wf . do V. Frost (Chan. App.), Ill, 633, p. 30 — Attorney, 188 — Estoppel, do , Griffith v. do V. Lloyd (Eq. C), IX, 793, p. 187 — Equity, 313 — Lunatic, ' 370 — Part- nership, 386 — Practice, do V. Neptune Mar. Ins. Co. (Q. B.), Ill, 373, p. 365 — Insurance, Mar. do V. North (Eq. C), XH, 836, p. 90 — Contract, do , Paine v. do , Regina, v. do , Slater v. do , Tapp V. do V. WiUiams (Q. B.), V, 234, pp. 108, 109 — Costs. Josselyn v. Parson (Exch.), 1,378, pp. 94 — Contract. Joyce, In re. Ex parte Barclay (Chan. App.), X, 601, p. 310 — Fixtures, do , Ex parte Warren (Chan. App.), XII, 714, pp. 37, 38 — Bankruptcy. do V. Kennard (Q. B.), I, 17, pp. 367, 368 —Insurance, Mar. 678 TABLE OP CASES RBPOETED. Joyce V. Eealm Ins. Co. (Q. B.), Ill, 208, pp. 265, 266 — Insurance, Mar. Justices of Lewes Prison, Regina v. Kathleen, The (Adm. and Eccl.), XII, 645, p. 463 — Ships, etc. Kay, Muir v. do V. Oxley (Q. B.), XIII, 296, pp. 179, 180 — Easement, do , Regina v Kaye, Haigh v. Keane v. Keane (Prob. and Div.), V, 544, p. 394 — Practice. Keely, In re. Ex parte Hawker (Chan. App.), I, 503, p. 26 — Bankruptcy. Keen v. Keen (Prob. & Div.), VII, 341, p. 527— Will Keet V. Smith (Adm. & Eccl.), XIV, 669, p. 63— Burial Ground. Kelley, Fitzpatrick v. Kellock V. Enthoven (Q. B.), VIII, 334 ; affirming S. C, VII, 72, p. 29— Bank- ruptcy, 242, 243 — Indemnity. Kelly V. Patterson (Com. PL), X, 353, p. 287 — Landlord and Ten. Kemp, Ex parte (Chan. App.), VIII, 923, p. 33 — Bankruptcy, 164 — Definitions, do V. Tucker (Chan. App .), V, 596, p. 187 — Equity Kempson v. Ashbee (Chan. App.), XI, 410, p. 318 — Fraud, 380 — Laches. Kendall v. London & S. "W. Ry. (Weekly R.), II, 705, p. 65 — Carrier, do , Regina v. Kendrick, Plant v. Kennard, Joyce v. do , McClean v. do V. Kennard (Chan. App.), IV, 860, p. 385 — Power. Kent V. Midland Ry. Co. (Q. B.), XI, 138, p. 70 — Cartier, 196— Evidence, 436. — Railway Co. do V. Riley (Eq. C), III, 701, p. 237— Fraudulent Conv. Kettering Highway Bd., Market Harborough, etc., v. Keran, Ex parte (Chan. App.), X, 718, p. 33 — Bankruptcy Kew — Regina v. Khan — Singh v. ' Kidderminster, Mayor of, v. Hardwlck (Bxch.), VII, 398, pp. 835, 336 — Mu- nicipal Corp. Kilburn Co-operative So., Reed v. Kilvert's Trust, Matter of (Chan. App.), I, 499, p. 195 — Evidence, 557, 558 — Will. Kimber v. Barber (Chan. App.), IV, 753, p. 400 — Principal and Agt. Kimberly v. Dick (Eq. C), I, 511, p. 93 — Contract, 391 — Practice. King, Ex parte. In re Palethorp (Eq. 0.), XIII, 795, p. 43 — Bankruptcy. King's Leasehold Estates, Matter of (Eq. C), VI, 846, p. 381 — Landlord and Ten. do V. Pinsoneault (Priv. C), XII, 127, pp. 18, 19 — Attorney, 86 — Compromise, do , Regina v. Kirkstall Brewery Co. v. Furness Ry. Co. (Q. B.), X, 118, p. 194— Evidence, 394, 395 — Principal and Agt. Kish V. Cory (Q. B.), XIV, 355, p. 77— Charter party. Kitchen v. Ibbetsou (Eq. C), VII, 668, p. 35 — Bankruptcy. Kitchener, Regina v. Kitching, Martineau v. TABLE OP OASES REPORTED. 679 Knight, Ex parte (Eq. C), XV, 467, p. 455— Set-off. ., do , Boughton v. do , Frost V. do V. Knight (Eq. C), X, 802, p. 337 — Husband and Wf. do , Regina v. Knights, Robinson v. Knott, Prudential Ins. Co. v. Knowlman v. Bluett (Exch.), X, 466; affirming S. C, VII, 287, p. 10 — Amendment, 321 — Frauds, Stat. of. Knox V. Qye(H. of L.), IV, 44, p. 306 — Limitation of Actions, 373 — Part nership. ' i Koehler, Rayner v. Koster, Duncan v. Kreef t, Gabarron v., do V. Thompson (Exch.), XIV, 563, p. 444 — Sale. Kwoe a-Sing, Attorney-Gen. v. Kynock, Batley v. Labouchere v. Dawson (Eq. C), I, 711, p. 333 — Good Will. Lacey v. HUl (Eq. C), IX, 729, p. 59 — Brokers, 243 — Indemnity. ' V. (Chan. App.), VII, 473, p. 58 — Brokers. V. (Chan App.), V, 654, p. 372 — Partnership Laing, Hathesing v. do V. Zeden (Eq. C), VII, 705, p. 47— Bill of Lading, 153 — Custom. Lakeman v. Mountstephen (H. of L.), IX. 8, pp. 330, 321 — Frauds, Stat. of. Lamarev. Dixon (H. of L.), VIII, 35, pp. 472, 475,478, 479 — Specific Pert Lamb, Clare v. Lambert v. Lambert (Eq. Q.), VI, 778, p. 202 — Executors, etc. do , Sale v. Lambton, Ex parte, In re Lindsay (Chan. App.), XII, 783, p. 304 — Lien. Lampeter Union, Guardians of, Pegge v. Lancashire, etc., Ry. Co., Armstrong v. , Blamires v. , Bradshaw v. V. Gidlow (H. of L.), XIII, 40, p. 71 — Carrier, 154, 155 — Damages, 177. , Duress, 338 — Money had, etc., 434 — Railway Co. , Mitchell V. , Sneesby v. , Whaite v. Lancashire, The (Adm. and Eccl.), VIII, 669, p. 466 -^ Ships, etc. Lancefleld v. Ig^ulden (Chan. App.), XI, 493 ; reversing S. C, IX, 653, p. 108— Costs, 891 — Legacy, 319 — Marshalling assets. Landore, etc.. Steam Co., Howells v. Langdale, Whitfield v. Langton v. Carleton (Exch.), VIII, 507, p. 99 — Contract, 167 — Definitions. do , Regina v. Larchin v. North Western Deposit Bank (Exch.), XII, 534, p. 81 — Chattel Mort. Large, Hyde v. do do do do do do do do do do do do do do do do do do do do do 680 TABLE OF OASES KEPORTED. Larios v. TGurety (Priv. C), VIII, 268, p. 158 — Damages, 277 — Jurisdiction, 481 — Specific Perf . Lariviere v. Morgan (Chan. App.), Ill, 499, p. 277 — Jurisdiction. Latham v. Chartered Bank of India (Eq. C), VII, 771, p. 47 — BiUs & Notes, 51 —Bill of Lading. Laughton v. Bishop of Sodor and Man (Priv. C), IV, 162, p. 303 — Libel. Law Un. P. & L. Ins. Co. .McDonald v. Lawes C. Manure Co,, Western Co. Manure Co. v. Lawless, Parfitt v. Lawrence v. Jenkins (Q. B.), V, 238, p. 158 — Damages, 208 — Fences. Laws, Meyrick v. Lawson, Tewart v. Layton, Treharne v. Lazarus, Rock v. Lea, Crompton v. Lea V. Whittaker (Com. PI.), IV, 335, p. 155 — Damages. Leader v. Mo)dy (Bq. C), XIII, 681, p. 253— Injunction, 288— Landlord and Ten. Learmouth v. Miller (Sc. App.), XIII, 131, p. 239 — Husband and Wf. Leather, etc., Co. v. Hierouimus (Q. B.), XII, 211, pp. 224, 225 —Frauds, stat. of Lebeau v. Gen. Steam Nav. Co. (Com. PI.), IV, 343, p. 65— Carrier, 167 — Definitions. LeBreton, Eagle v. Leduc, Provincial Ins. Co. v. Lee V. Lee (Prob. and Div.), Ill, 484, p. 176— Divorce, do , Redgrave v. do V. Sankey (Eq. C), V, 808, p. 499 — Trusts, etc. do V. "Walker (Com PI.), I. 371, p. 339, 340— Negligence. Leech V. Schweder (Chan. App.), IX, 559, p. 247 — ^Injunction, 305 — Light. Leese v. Martin (Eq. C.) I, 566, pp. 386, 387 — Practice. V. (Eq. C), VII, 786, p. 303, 304 — Lien. Lefroy, Queen v. Legard, Coates v. Leggatt, Matter of. Ex parte Dewhurst (Chan. App.), VII, 504, p. 43 — Bank ruptcy. Lehain v. Philpott (Com. PI.), XIH, 371, p. 183 —Election, 286 — Landlord and Ten. Leigh, Cox v. Leightonr. Leighton (Eq. C.),X, 774, p. 108 — Costs, 294— Legacy. LeJonet, The (Adm. and Eccl.), IV, 611, p. 489 — Ships, etc. Leman v. Houseley (Q. B.), XI, 156, p. 12 — Apothecary. LeMarchant v. LeMarchabt (Eq. C), X, 736, p. 565 — Will. Lempriere, London Ch. Bank of Australia v. Levy, Hall v. Lewis, Bechervaise v. do , Gray v. do V. London, Chatham, &c, Ry. Co, (Q. B.), VII, 119, p. 347— Negligence do , Parker v. do , Regina v. TABLE QF CASES EEPOKTBD. 681 Liberia, Republic of, v. Roye (App. Cas.),XV, 44, pp. 389, 393— Practice. Liddell, Hinde v. Liebert, In re, Ex parte Halliday (Clian. App.), IV, 893, p. 27 — Bankruptcy. Ligertwood, Watt v. Limeliouse Works Co., Matter of, Coatea' case (Eq. C), VII, 748, pp. 411, 412 — Public Co. Lince, Reginav. Lindsay, The. Dowaxd v. Lindsay (Priv. C), VIII, 261, p. 464— Sliips, etc do , Codrington v. do , Doward v. do V. Lindsay (Prob. and Div.), IV, 684, p. 517 — Will. do Petroleum Co. V. Hurd (Priv. C), VUI, 180, p. 218 — Fraud. 280 — Laches. Lintott, Bayles v. Liquidators of Imp. Merc. Credit Asso. v. Col eman (H. of L.), VI, 18, p. 107 — Costs, 409 — Public Co. Lishman v. Northern Mar. Ins. Co. (Com. PL), XI, 325 ; affirming S. C, V, 278, pp. 262, 264 — Insurance, Mar. Lister, Commercial Assurance Co. v. Littlewood, Atkinson v. do , Waite v. Liver AlkaU Co. v. Johnson (Exch.), X, 486 ; affirming S. C, II, 602, p. 63 ; — Carrier. Liverpool Ins. Co., Fisher v. do &G. W. Steam Co., Taylor v. Livingston, Ireland v. Llanelly, etc., Ry. & Dock Co. v. London & N. W. Ry.Co. (H. of L.), XIII 73 ; affirming S. C, VII, 493, p. 96 — Contract, 195, 196 — Evidence. Llansamlet Tin Plate Co., Es parte (Eq. _C.), VI. 689, p. 30— Bankruptcy, 160 Damages. Llewellen v. Rutherford (Com. PL), XIII, 328, p. 282 — Landlord & Ten. Lloyd, Jones v. do V. Pughe (Chan. App.), IV, 775 ; reversing S. C, III, 715, p. 331 — Gift, 238 — Husband & Wf . do , Wilson v. Loader, Baker v. Local Board of Swindon, Bolingbroke v. Lock, Fowler v. do , Regina v. Lockhart v. Palk (Exch.), XII, 573, p. 77— Charter Party. Locking v. Parker (Chan. App.), IV, 736, pp. 329, 330 —Mortgage. Loftus Iron Co., Ellis v. do do Tharsis Sulphur, etc., Co. v Lomas, Attorney-General V. Lomi, Ash well v. London, Prentice v. uo , Thorn v. London, etc.. Brewery Co., Tennant v. 86 682 TABLE OP OASES EEPORTED. London, Bombay & Med. Bank. In re. Ex parte Cama (Chan. App.), X, 668. p. 39 — Bankruptcy, do do do v.Narraway(Eq. C.),V, 736, p. 454 — Set-off. London, Brighton, etc., Ry. Co., In re (Chan. App.), VIII, 760, p. 316 — Mar- riage settle. do do do Weller v. London Chartered Bank of Australia v. Lempriere (Priv. C,), V, 137, p. 316 — Fraud, 340 — Husband & Wf. London, Chatham, etc.,Ry. Co., Baxendale v. do do do Lewis v, London, City of, Bigg v. do do Thorn v. London City Brewery Co. v. Tennant (Chan. App.), VIII, 827, p. 247 — Injunc- tion, &05 — Light. London Financial Assoc, v. Stevens (Chan. App.), VII, 555, p. 434 — Public Co. London General Omnibus Co., Simson v. . do Hotel Co., Beer v. do and N. W. By., Carr v. , Clough V. , D'Arc V. , Gallin v. , Llanelly Ry. Co. v. , Nield V. , Radley v. , Vaughton v. , Wolverhampton, etc.. By. Co. v. do and Paris Banking Co., In re (Eq. C), XII, 833, p. 28 — Bankruptcy, do Piano Forte Co., Rowe v. do Provincial Ins. Co. v. Seymour (Eq. C), VII, 699, pp. 217, 318— Fraud, do Real Co., Wall v. do School Board v. St. Mary Islington (Q. B. Div.), XV, 183, p. 165 — Defi- nitions, 334 — Munic. Corp. London Small Arms Co., Dixon v. London & Southeastern By. Co., Cockle v. do & South Western By. Co. v. Flower (C. P. Div.), XV, 243, p. 58 — Bridges, 327 — Money paid. London & South Western By. Co., Hobbs v. do do do V. James (Chan. App.), IV, 869, p. 66 — Carrier, do do do Kendall v. Longley v. Longley (Eq. C), I, 631, p. 493 — Trusts. Lord V. Price (Exch.), VIII, 505, p. 364 — Parties. Lords and BailifEs, etc., v. Corporation of Trinity House (Exch.), II, 601, p. 348 — Negligence. Lord Advocate v. Clyde Steam Nav. Co. (Sc. App.), XII, 104, p. 459 — Ships, etc. do , McDonall v. do do do do do do do do do do do do do do do do TABLE OF OASES EEPORTED. 683 Lord Eokeby, Dawkins v. Loughborough, Barfield v. Lovegrow, Phipps v. Lovel, McQee v. Loverick, Searlev. Lovering, Ex parte. In re Jones (Chan. App.), X, 636, p. 84 — Bankruptcy, do jDugdale v. Lowe V. Blakemore (Q. B.), XIV, 291, p. 43 — Bankruptcy. Lownds, Fox v. Lowry, In matter of goods of (Prob. & Div.), VIII, 635, p. 581 — WUl. Lowther v. Bentinck (Eq. C), XI, 763, pp. 495, 496 — Trusts. Lucas V. Mason (Com. PI.), XIII, 379, pp. 333, 338 — Master & Serv., 440— Re- ligious Meeting. Luckley, Pattinson v. Lund, Axmann v. Lyall V. Lyall (Eq. C), V, 673, p. 484 — Succession Duty. Lycett V. Stafford, etc.. By. Co. (Eq. C), I, 670, p. 350 — Injunction. Lyle V. Ellwood (Eq. C), XI, 703, p. 193 — Evidence, 314 — Marriage. Lyon V. Fishmongers' Co. (Chan. App.), XIV, 887, p. 443 — Kiparian Owner. M. V. C. (Prob. & Div.), IV, 650, p. 173 — Divorce. Mack V. Petter(Bq. C), III, 809, pp. 103,103 — Copyright, 346 — Injunction. Mackay v. Commercial Bank (Priv. C), IX, 303, p. 13 — Appeal, 879 — Plead- ing, 896 — Principal & Agt. Mackay v. Douglass (Eq. C), III, 659, p. 237 — Fraudulent Conv. Mackenzie, Murray v. Mackenzie v. Whitworth (Ex. Div.), XV, 386; affirming S. C, XII, 582, p. 358, — Insurance, Mar. Mackereth v. Glasgow & S. W. Ry. Co. (Bxch.), V. 342, p. 386 — Practice. Mackett v. Mackett (Eq. C), II, 413, p. 531 — WiU. Macleay, Matter of (Eq. C), XIII, 719, pp. 534,_ 535 — Will. Macnichol v. Macnichol (Eq. C), XI, 690, p. 300 -— Executors, etc. McAndrew, Redway v. McAvoy, Stock v. McCabe, Matter of goods of (Prob. & Div.), VI, 373, p. 533— Will. McCarthy v. Metropolitan Board of Works (Com. PI.), V, 256, p. 85 — Compen- sation. McCawley v. Purness Ry. Co. (Q. B.), IV, 218, p. 69 — Carrier. McClaren v. Murphy (Priv. C), III, 134, p. 3 — Action, 97 — Contract. McClean v. Kenuard (Chan. App.), VIII,' 893, p. 371 — Partnership. McClintock, Browne v. McConneU v. Murphy (Priv. C), VIII, 164, p. 189 — Estoppel, 442— Sale. McCord V. McCord (Prob. & Div.), XIII, 459, p. 174 — Divorce. McCuUoch, Graham v. McDonald, Cooper v. McDonald v. Law Un. F. & L. Ins. Co. (Q. B.), VIII, 369, p. 257 — Insurance, Life, do , McDonald (Sc. App.), XIII, 154, p. 229 — Gift, 883 — Power. McDouall V Lord Advocate (Sc. App.), XIII, 184, p. 209 —Fishery. 684 TABLE OP CASES REPOKTED. McDougall V. Gardiner (Chan. Div.), XV, 624; reversing S. , lb. 388, p. 422 — Public Co V (Chan. App.), XIV, 830, p. 405— PubUc Co. McGowan v. Dyer (Q. B.), IV, 356, p. 397 — Principal and Agt. McKay, McLean v. McKechnie v. Vaughan (Bq. C), V, 854, p. 557 — Will. McKenna, Parker v. McKewan, Garnett v. do V. Sanderson (Eq. C), V, 831, p. 379 — Pleading. V. (Eq. C), XIII, 611, p. 27— Bankruptcy, 333 — Guaranty. McLaren, Connelly v. McLean, City Discount Co. v. do V. McKay (Priv. C), VIII, 351, p. 13 — Appeal, 109 — Covenant. do , Telegraph, etc., Co. v. McLeod, Eegina v. McLister, Garden, etc.. Mining Co. v. McMahon, Regina v. McManus, Matter of; Ex parte Jardine (Chan. App.), XII, 743, pp. 330, 831 — Mortgage . McNabb, Directors, etc., Taff Valley Ry. Co. v. McQueen v. Great Western, etc., Ry. Co.(Q. B.), XIV, 369, p. 68 — Carrier. Madden, Bolton v. do , Regina v. Maddock, In re goods of (Prob. & Div.), X, 533, p. 515 — Will. Madras Ry. Co. v. The Zemindar, etc. (Ind. App.), IX, 289, p. 351 — Negligence. Magee v. Lavell (Com. PI.), VIII, 433, pp. 91, 92 — Contract, 165— Definitions. Magnet, The (Adm. & Eccl.), XIV, 670, p. 464 — Ships, etc. Mahoney V. East Holy ford, etc.. Mining Co. (H. of L.), XIV, 337, p. 416 —Pub- lic Co! Malcolmson v. General Steam Nav. Co. (Priv. C), IV, 183, p. 467 — Ships, etc. do , Plympton v. Maiden v. Great Northern Ry. Co. (Exch.), X, 464, pp. 388, 389 —Practice. Maltby, Cross v. Manchester, etc., Ry. Co., Bailey v. do , Mayor of, Cheetham v. do , Sheffield, etc., Ry. Co., Bailey v. Manning, Regina v. Mannox v. Greener (Eq. C), III, 814, p. 165 — Definitions, 544, 545, 548, 565 — Will. Mansell v. Clements (Com. PI.), VIII, 449, p. 61 — Broker, 194 — Evidence. Marine Investment Co. v. Haviside (H. of L.), IV, 17, p. 197 — Evidence. March Gas & Coke Co., Burrows v. Marchaiae, Beal v. Market, Harborongh, etc.. Turnpike Trusts v. Kettering Highway Board (Q. B.), V, 251, p. 483— Statutes. Marler v. Tommas (Eq C), VII, 636, pp, 383, 384— Power, 458 — Settlement. Marpesia, The (Priv. C), III, 92, p. 1 — Accident, 6 — Admiralty, 195 — Evi- dence, 464 — Ships, etc. TABLE OF CASES EEPOETED. 685 Marseilles, Extension Ey., Matter of (Chan. App.), 1,490, pp. 395, 396 — Princi- pal and Agt., 421 — Public Co. Marshall, Camps v. do V. Crutwell (Eq. C), XIII, 830, p. 238 — Husband and Wf. do V. Green (C. P. Div.), XV, 218, pp. 222, 223 — Frauds, Stat. of. do V. Shrewsbury (Chan. App.), XII, 719, p. 334 — Mortgage, 488 —Re- demption, do V. Smith (Com.' PL), VI, 186, p. 13 — Appeal, 116, 117— Criminal Law. do V. Ulleswater Steam Nav. Co. (Q. B.), 1, 51, pp. 489, 490— Trespass. Marsland, Nichols v. Martelli v. HoUoway (H. of L.), Ill, 44, pp. 551, 565, 566— Will. Martin, Allen v. do V. Hobson (Chan. App.), V, 622, p. 167 — Definitions, 546 — Will, do , Lease v. • do , Regina v. do V. Smith (Exch.), VIII, 501, p. 287 — Landlord and Ten. Martineau v. Kitching (Q. B.), II, 539, pp. 443, 444 — Sale. Mason, Matter of (Chan. App.), XII, 725, p. 493 — Trusts. do , Lucas V. Massey, CorkUng v. do , Francisco v. Masson, Mound v. do , Stevenson v. Matanle, Matter of ; Ex parte Schulte (Chan. App.), VIII, 933, p. 42 — Bank- ruptcy, 197 — Evidence, 356 — Notice. Mather, Holmes v. Mathews, Meyrick v. do , Regina v. Matlpck O. B. Hydropathic Co., In re. Maynard's case (Chan. App.), VIII, 727, p. 413 — Public Co. Matthaei v. Galitzin (Eq. C), IX, 850, p. 278 — Jurisdiction. Matthews v. Baxter (Exch.), IV, 502, p. 89 — Contract. Maund v. Mason (Q. B.), VIII, 335, p. 164 — Definitions — 376 — Pauper. Mavro v. Ocean Mar. Ins. Co. (Com. PI.), XII, 473 ; affirming S. C, X, 325, p. 270 — Insurance, Mar. Maxfield v. Burton (Eq. C), VII, 642, p. 332 — Mortgage. May, Great Northern Ry. v. do , James v. Maycoek, Crossley v.' Mayer, In re goods of (Prob & Div.), V, 533, p. 200 — Executors, etc. Mayers, Regina v. Maynard's case (Chan. App.), VIII, 727, p. 412 — Public Co. Maynard v, Eaton (Chan. App.), IX, 515, pp. 85, 86 — Compromise. do , Thornton v. Mayor, etc., of Kingston upon Hull, Wells v do of Liverpool, Stevenson v. do of London, Thorn v. 686 TABLE OF OASES EEPORTED. Mead, Matter of, Ex parte Coclirane (Eq. C), XIII, 802, p. 87 — Contempt, 436, 437 — Receiver. Meinertzagen v. Walters (Chan. App.), 111,563, p. 543 — "Will. Melliado v. Porto Allegre, etc., Ry. Co. (Com. PI.), X, 379, p. 405 — Public Co. Mellier, De Worms v. Mellor V. Watkins (Q. B.), IX, 344, pp. 386. 387 —Landlord and Ten., SOS- Li cense. , Melpomene, The (Adm. & Eccl.), VII, 366, p. 468— Ships, etc. Meuier & Hooper's Telegraph Works (Chan. App.), VIII, 905, p. 431 — Public Co. Mercantile Credit Association, Matter of (Eq. C ), XIII, 538, pp. 430, 431 — Pub- lic Co. Mercer v. Graves (Q. B.), II, 618, p. 19 — Attorney. Merchant Shipping Co. v. Armitage (Exch.), VIII, 383, p. 77 — Charter Party. Meredith, Trappes v. • Merritt, Perry v. Merry v. Nickalls (Chan. App.), Ill, 600, p. 61 - Broker. Metropolitan Board, Buccleuch v. do do v. McCarthy (H. of L.), X, 1; affirming S. C, V, 256, pp. 84, 85 — Compensation. Metropolitan Land & Finance Co., Hardy v. do Ry. Co., Gee v. do do do , Jackson v. do do do , Moore v. Meux V. Jacobs (H. of L.), XIII, 1, p. 211 — Fixtures. Mexican 'Ry. Co., Harrison v. Meyrick v. Laws, and Same v. Mathias (Chan. App.), VIII, S42, pp. 536, 537 — Will. Middleton v. Pollock (Eq. C), XIII, 588, p. 453 — Set-off. V. (Eq. C), XV, 467, p. 455— Set-off. do , Regina v. do V. Windross (Eq. C), VI, 733, p. 534 — Will. Midland Ry. Co., Dawson v. do do do. Firth v. do do do V. Great Western Ry.Co. (Chan. App.), Vn.408, p. 420 — Pub- lic Co. do. Home v. do, Kent v. do, Wright v. Mid. Hants Ry., Stevens v. Miles' Claim, In re (Chan. App.), X, 634, p. 368 — Partnership. Miles V. Furber(Q. B.), IV, 224, pp. 385, 286— Landlord and Ten. do. V. Harrison (Chan. App.), VIII, 881, pp. 551, 553 — Will. Mill V. Hawker (Exch.), XII, 538; affirming S. C, X, 468, p. 361 — Officer. Millar, Pitts v. \ Miller v. David (Com. PI.), VIII, 434, p. 166 —Definitions, 471, 473 — Slander. do , Eastwood v. do V. James (Prob. & Div.), V,503, p. 214 — Former Adj., 524 — Will. do do do do do do TABLE OF -OASES REPORTED. 687 Miller, Learmouth v. do V. Miller (Eq. C), I, 672, p. 532 — Will. > do , Phillips V. do , Rawlinson v. do , Regina v. Millner's trust. Matter of (Bq. C), III, 719, p. 191 — Evidence. Mills, Matter of (Chan. App.), VI, 496, pp. 29, 30— Bankruptcy, 365 — Partner- do V. Capel (Eq. C), XV, 546, pp. 308, 309 — Limitations, Stat. of. do V. Hawker (Exch.), XII, 538, p. 323 — Master and Serv., 361 — OfBcer. Minet v. Morgan (Chan. App.), V, 590, p. 169 — Discovery. Miranda, The (Adm. & Eocl.), IV, 615, pp. 468, 469 — Ships, etc. Mis'a, Currie v. Mitchell V. Holmes (Exch.), IV, 490, p. 877 — Payment. do V. Lancashire, etc., Ry. Co. (Q. B.), XII, 288, p. 70— Carrier, do V Wilton (Eq. C), XIII, 789, p. 11 — Annuity. Mobile, The City of (Adm. & EccL), VIII, 666, p. 6 — Admiralty. J MofEatt, North British Ins. Co. v. MoUett V. Robinson (Com. PI.), I, 335, p. 60 — Broker. MoUwo V. Court of Wards (Priv. C), IV, 121, p. 296 — Lex loci, 365, 366 — Partnership. Monarch Ins. Co., Matter of (Chan. App.), VI, 456, p. 429— Public Co. MoncreiSe, Mordaunt v. Monsell v. Armstrong (Eq. C), III, 803, p. 208 — Executors, etc. Montague v. Flockton (Eq. C), VI, 704, p. 94 — Contract, 245 — Injunction. Moody, Leader v. Mookerjee v. Mookerjee (Ind. App.), XI, 103, p. 498 — Trusts. Moore v. Moore (Eq. C), X, 788, p. 232 — Gift. do V. Metropolitan Ry. Co. (Q. B.), IV, 203, p. 322 — Master and Serv. Morant, Matter of goods of (Prob. & Div.), VIII, 629, p. 202 — Executors, etc. Mordaunt v. Moncreiffe ( Sc. & Div. App.), X, 57, pp. 175, 176 — Divorce. Mordue v. Dean & Cha*pter of Durham (Com. PI.), V, 311, p. 324 — Mines., Morehouse, Todd v, Morgan v. Bain (Com. PL), XI, 220, p. 449 — Sale, do V. Britten (Eq. C), I, 537, p. 564 — Will. do V. aronoW(Eq. C), VI, 604, p. 382— Power, do V. Lariviere (H. of L.), XII, 52 ; reversing S. C, III, 499, p. 17 — Assignment, 277 — Jurisdiction, do , Minet v. do V. Rowlands (Q. B.), II, 611, p. 162 — Defense, 808 — Limitations, Stat. of. do v. ,Steble (Q. B.), Ill, 228, p. 162 — Defense. ' do , Turner v. Morice, Anderson v. Morley, Ex parte, In re White (Chan. App.), VII, 521, p. 37 — Bankruptcy, 318 —Former adj. do V. White (Chan. App.), VI, 581, p. 204 — Executors, etc. Morrice v. Aylmer (H. of L.), XIV, 103; affirming S. C, XI, 503, p. 167 — Definitions, 546 — Will. 688 TABLE OP CASES REPORTED. Morris, Earl of Aylesford v. do V. Morris (Chan. App.), XI, 436, p. 203 — Executors, etc. do , Benuie v. do , Eoswell V. do , Waugh V. Morrison v. Thompson (Q. B.), X, 139, p. 338 — Money had, etc, 400, 401 — Principal and Agt. do V. Universal M. Ins. Co. (Exch.), V, 383; reversing S. C, IV, 433, p. 263 — Insurance, Mar. Morritt v. Douglass (Prob. & Div.), V, 500, p. 515.— Will. Morse, Australasian Steam Nav. Co. v. Mors-Le Blanch v. Wilson (Com. PI.), V, 286, p. 313 — Former adj., 463 — Ships, etc. Mortimore, Westenberg v. Morton, Matter of (Eq. C), XV, 585, p. 376 — Jurisdiction. Morton v. Hutchinson (Priv. C), IV, 191, p. 466 — Ships, etc. do , Regina v. do , Richardson v. Moseley v. Simpson (Eq. C), VI, 738, p. 15 — Arbitration. Mostert, Dennyssen v. Mostyn, Tichborne v. Mott V. Schoolbred (Eq. C), XIII, 583, p. 359 — Nuisance. Mouflet V. Cole (Exch.), IV, 429; affirming S. C, I, 177, p. 93— Contract. Moule V. Garrett (Exch.), I, 307, p. 3 — Actions, 289 — Landlord and Ten. Mount, Regina v. Mountford, Sherratt v. Mountstephen v. Lakeman (Q. B.), I, 68, p. 320 — Frauds, Stat. of. Mowlem, Matter of (Eq. C), IX, 668, p. 493 — Trusts. Maxham, The (Prob. & Div.), XV, 399, p. 399 — Lex loci. Moxon, Basnett v. do V. Payne (Chan. App.), VII, 443, p. 316 — Fraud. . Muckleston, Dixon v. Muir V. Crawford (Se. App.), XIII, 138, p. 47— Bills and Notes, 403 — Princi- pal and Sur. do V. Keay (Q. B.), XIV, 391, p. 197 — Excise. Mulkern, Harris v. MuUer v. Baldwin (Q. B.), IX, 389, p. 164 — Deanitions, 441 — Revenue. Muller, Brown v. Mulligan v. Cole (Q. B.), XIV, 353, p. 300— Libel. Mullings, Phillips v. MuUins V. Collins (Q. B.), VIII, 351, p. 133 — Criminal Law. Mumford v. Stohwasser (Eq. C), XI, 533, p. 356 —Notice, 473, — Specific Peri. Mummery, Jewsbury v. Murphy v. Boese (Exch.), XII, 567, p. 333 — Frauds,,Stat. of. do , McConnell v. do , McLaren v. do , Eegina v. Murray v. Bush (H. of L.), V, 1, p. 107 — Costs, 431, 433 — Public Co. TABLE OF OASES KEPOETED. 689 Murray, Castro v. do V. Clayton (Eq. C), V. 750, pp. 169 170 — Discovery. ^v. (Chan App.), HI, 515, p. 375 — Patent. do V. Mackenzie (Com. PL), XIV, 469, p. 81 — Chattel Mort. Murton, Fleet v. do Trusts, Matter of, In re Green (Chan. App.), XII, 734, p. 493— Trusts. Muskett V. Baton (Chan. Div.), XV, 840, p. 567 —Will. Mutlow V. Bigg (Chan. Div.), XV, 803 ; reversing S. C, IX, 784, p. 101 — Con. • version, 309 — Limitations, Stat. of. Mycock, Begina v. Myers, Smith v. Mytton V. Mytton (Eq. C), XI, 650, p 291 — Legacy. ^aden,.Ex parte, In re Wood (Chan. App.), X, 659, p. 11 — Annuity. Nanson v. Gordon (App. C), XV, 70; affirming S. C, XI, 513, p. 31 — Bank- ruptcy. , Harraway, London, etc.. Bank v. Nash, Watkins v. Negus, Eegina v. Nelson, Osgood v. Neo V. Neo (Priv. C), XIII, 207, p. 13 — Appeal, 518 — Will. Neptune Ins. Co., Jones v. Nesbitt V. Board of Works o| Greenwich (Q. B.), XIV, 287, p. 335— Municipal Corp. Nesham v. Selby (Bq. C), II, 313 ; affirming S. C, I, 640, p. 335 — Frauds, Stat. of. Nettleford, Selby v. Newberry, Burton v. Newberry, Wilson v. Newboult, Regina v. Newby v. Von Oppen & Colt's P. Fire Arm Co. (Q. B.), I, 323, p. 106 — Corpo- ration, 386 — Practice. New«ll V. Van Praagh (Com. PI.), VIII, 415, p. 45 — Bankruptcy. Newill V. Newill (Chan. App.), U, 369, p. 564 — Will. Newman, Grace v. Newman's Settled Estate, In re (Chan. App.),X, 666, p. 455 — Settled Estates. Newsome v. Newsome (Prob. & Div.), I, 341, p. 173 — Divorce. NichoUa, Matter of goods of (Prob. & Div.), IV, 686, p. 198 — Executors, etc. do , Regina v. Nichols V. Hall (Com. PL), V, 300, p. 117 — Criminal Law. do V. Marsland (Bxch ), XIV, 538, p. 351 — Negligence Nicholson, Heartley v. do , Fanham v. Nickalls v. Merry (H. of L.), XIU, 55 ; affirming S. C; III, 600, p. 61. — Broker, 244 — Infant. Nickersou, Harris v. Nield V. London N. W. Ky. Co. (Bxch.), XI, 333, p. 513 — Water-courses. Nile, The (Adm. & EccL), XIV, 693, pp. 469, 470 — Ships, etc. Nixon, Engleback v. 87 690 TABLE OF OASES RBPOETED. Nixon, Hall v. Noble V. Willock (Chan. App.), VII, 378, p. 517 — Will. Nolan, French v. Noonan, Regina v. Norman, Rodde v. Norris v. Fra^er (Eq. C), V, 864, p . 107 — Costs, 559 — Will. ' North, Jones v. Northampton Ry. Co., Wilson v. North Brancepeth Coal Co., Salvin v. North British & M. Ins. Co. v. Moffat (Com. PI.), I, 80, p. 256— Insurance, Fire. North Eastern Ry. Co., Hall v. do do Oliver v. do do Richardson V. , do do Robson v. do do V. Wanless (H. of L.), IX, 1, p. 341 — Negligence. North of England Pure Oil Cake Co. v. Archangel Mar. Ins. Co. (Q. B.), XII, 283, pp. 273,278— Insurance, Mar. North London Ry. Co., Bridges v. Northern Maritime Ins Co., Lishman v. North Staffordshire Ry. Co., Ex parte. In re Traders' N. S. Carrying Co. (Bq. (..;, XI, 673, p. 45— Bankruptcy. North Western Bank, Ex parte (Eq. C), V, 719, p. 381— Pledge. do do Cole v. North Western Ry. Co., Clough v. Notara v. Henderson (Q. B.), I, 269, p. 66 — Carrier, 154 — Damages. Nottingham, Hall v. Nottingham Hide Co. v. Bottrill (Com. PL), VII, 326, p. 234— Guaranty. Nugee, Ex parte (Eq. C), XIII, 588, p. 453— Set-off. Nugent V. Smith (C. P. Div.), XV, 203, p. 64— Carrier. Nuneaton Local Board v. 'Seueral Sewage Co. (Eq. C), XIII, 664, p. 359 — Nuisance. Nunn's Trusts, Matter of (Eq, C), XI, 868, p. 293 — Legacy. Oatley, Hayes v. Ocean Mer. Ins. Co., Gambles v. do do Mavro v. Occlestou V. FuUalove (Chan. App.), VIII, 788, p. 164— Definitions, 555,556 — Will. Ochsenbein.T. Papelier (Chan. App.), VI, 576, p. 186 — Equity. Ogden V. Benas (Com. PI.), X, 283, p. 24 — Banks, etc., 328 — Money had, etc. Ogg V. Shuter (C. P. Div.), XV, 381 ; reversing S. C, XI, 316, p. 445 — Sale. Ohlsen v. Terrero (Chan. App.), XI, 485, p. 569 — Witness. O'Leary, Wilson v. Old, Tickner v. Olivant v. Wright (Chan. Div.), XV, 779 ; modifying S. C, XIII, 741, p. 164 - Definitions, 539 — Will. Oliver v. North Eastern Ry. Co. (Q. B.), IX, 350, p. 435 — Railway Co. O'Mahoney v. Burdett (H. of L.), XII, 23, p. 540 — Will. Onslow, Regina v. Onward, The (Adm. & Eccl.), VI, 383, p. 57 — Bottomry. . TABLE OF CASES EEPOETBD. 691 Oppert, Vale v. O'Reardon, Matter of (Chan. App.), VIII, 739, p. 37— Bankruptcy, Oriental Financial Corp. v. Overend, Gurney Ss Co. (Chan. App.), I, 478, p. 408 — Principal and Sur. Oriental Commercial Bank v. Savin (Eq. C), VI, 715, p. 203 — Executors, etc. Oriental Inland Steam Co., Matter of, Ex parte Scinde Ey. Co. (Olian. App.), X, 586, pp. 188, 189 — Estoppel. Orlebar"^ Settlement Trusts, Matter of (Eq. C), XV, 563, p. 318— Marriage Settlement. Orton V. Smith (Prob. & Div.), V, 518, p. 108 — Costs. Osborn v. Gillett (Exch.), IV, 464, p. 330 — Maftter & Serv., 337 — Negligence. Osborne V. Hbrnburg (Ex Div.), XV, 397, p. 387 — Practice. Osgood V. Nelson (H. of L.), IV, 37, pp. 105, 106 — Corporation. Oswald, Matter oi (Prob. & Div.), X, 517, pp. 535, 536 — Will. Otter, The (Adm. & Eocl.), VIII, 674, p. 6 — Admiralty, 466 — Ships, etc.- Oulton V. RadclifEe (Com. PL), VIII, 483, p. 276 — Jurisdiction. Ousey V. Ousey (Prob. &.Div.), XII, 683, p. 173 —Divorce. Overend, Gurney & Co. v. Gibb (H. of L.), Ill, 1, p. 408 — Public Co. , do ■ V. Oriental Fin. Corp. (Chan. App.), XI, 37 ; affirming S. C, 1, 478, p. 402 — Principal and Sur. Owen V. Delamere (Eq. C), V, 765, pp. 186, 187 — Equity. Owen Wallis, The (Adm. & Eccl.), VIII, 653, p. 466 — Ships, etc. Oxenham, Regina v. Oxley, Kay v. P , S. V. Pacific Ins. Co., lonides v. Page V. Tonng (Eq. C), XIII, 476, p. 544— Will. Paine v. Jones (Eq. C), IX, 833, p. 309 — Limitations, Stat. of. Palatine County Loan Co., In re (Chan, App.), X, 673, p. 434 — Public Co. Paleu, Dewitte v.. Palethorp, Matter of (Eq. C), XIII, 795, p. 43 — Bankruptcy. Palmer v. Flower (Eq. C), I, 664, p. 364 — Parties 546 — Will. Palmer's Trusts, Matter of (Eq. C), XI, 854, p. 457 — Settlement. Panama, etc., Telegraph Co., v. India Rubber, etc., Works Co. (Chau. App.), XIV, 759, p. 99 — Contract, 395 — Principal an'd Agt. Papelier, Ochsenbein. v. Pappa V. Rose (Com. PL), III, 375 ; affirming S. C, I, 87, p. 16 — Arbitrator, 60 — Broker, 97 — Contract. Paraguassu Steam Tramway Co., Matter of Adamson's Case (Eq. C), XI, 596, p. 411 — Public Co. Parfitt V. Chambre (Eq. C), V, 701, pp. 155, 156 — Damages. do V. Lawless (Prob. & Div.), IV, 687, p. 196 — Evidence, 530 — Will. Parke, Matter of (Eq. C), IX, 873, p. 170 — Distress. Parker v. Lewis (Chan. App.), VII, 529, pp. 419, 430 — Public Co. do , Locking v. do V. McKenna (Chan. App.), XI, 456, p, 107 — Costs, 317 — Fraud, 410 —Public Co. Parkin v. Seddons (Eq. C), VI, 625, p. 436 — Receiver. Parkyns, Ross v. 692 TABLE OP OASES KEPOKTED. ■ fl Parmeiiter, Regina v. Pamell, Barrell v. Parnham's Trust, Matter of (Bq. C), II, 357, pp. 543, 544— Will. Parsons, Josselyn v. Pascoe, Fowkes v. Patterson, Kelley v, Pattinson v. Luckley (Exch.), XIV, 579, p. 98 — Contracts. Pattisson v. Gilford (Eq. C), IX, 786, p. 253 — Injunction. Pattillo, Srutten v. Patton, Cory v. Payne v. Evans (Eq. C), IX, 858, p. 503 — Trusts. do , Moxon V. do , Regina v. do V. Webb (Eq. C), XI, 647, p. 537 — Will. Peacock's estate. Matter of (Eq. C), III, 711, p. 295 — Legacy. Peach, Simpson v. Pearce v. Carrington (Chan. App.), VII, 507, p. 556 — Will. do V. Watts (Eq. 0.), XV, 457, p. 479— Specific Perf. Pearse, Hessman v. Pearson, Matter of (Chan. App.), VI, 569, p. 27 — Bankruptcy. . do V. Commercial Un. Assurance Co. (Com. PI.), ,VI, 248, p. 267 — Insurance, Mar. do V. Helliwell (Eq. C), X, 738, p. 293 — Legacy, do V. Parson (Prob. & Div.), IV, 677, p. 515 — Will. Pease, Jackson v. Pedley, Hasluck v. Peek's Trust, Matter of (Eq. C.),VI, 734, p. 568 — Will. Peek V. Gurney (H. of L.), VIII, 1 ; affirming S. C, I, 567, p. 204 — Executors, etc., 316 — Fraud, 406, 407 — Public Co. Pegge'v Guardians of Lampeter Union (Com. PI.), X, 208 ; reversing S. C, II, 668,'p. 99 — Contr., 311 — Lunatic, 376 — Pauper. Pierce v. Corf (Q. B.), VIII, 316, p. 333 — Frauds, Stat. of. Pembliton, Regina v. Pembroke, Dudgeon v. Pendlebury v. Greenhalgh (Q. B. Div.), XV, 171, p. 338 — Negligence. Pennock v. Pennock (Eq. C), I, 626, p. 565 — Will. Peppercorne v. Gardner (Prob. & Div.), VIII, 627, p. 302 — Executors, etc. Percy, Applebee v. do , Fairland v. Perkins v. Pladgate, In re Bassett's estate (Eq. C), II, 417, pp. 554, 557 —Will Perring V. Trail (Eq. C), IX, 682, p. 73 — Charities. Perry v. Merritt (Eq. C), IX, 702, p. 536 — Will. Peru V. Weguelin (Eq. C), XHI, 679, p. 389 — Practice. Petchell, Matter of goods of (Prob. &'Div.), VIII, 631, p. 535 — Will. Peters, Smith v. Petrocochino v. Bott (Com. PL), IX, 448, p . 52 — Bill of Lading. Petter, Mack v. Phillips V. Bridge (Cpm. PI.), VII, 147, pp. 388, 384 — Landlord and Ten. do V. Poxall (Q. B.), Ill, 259, p. 384 — Guaranty. TABLE OP OASES EBPOKTED. 693 Phillips V. Great Western Ry. Co.(Caian. App.),II, 316, p. 477— Specific Perf. do V. Miller (Com. PI.), XII, 479 ; reversing S. C, VIII, 490, pp. 507, 508 — Vendor and Purch. do V. Mailings (Chan. App.), II, 259, p. 319 — Fraud. d9 V. Silvester (Chan. App.), IV, 843, p. 510 — Vendor and Purch. Philpotts V. Boyd (Priv. C), XIII, 339; affirming S. C, XII, 670, p. 83 — Church Decorations, do , Lehain v. Philps V. Hornstedt (Exch.), IV, 434, pp. .26, 37 — Bankruptcy. PUpps V. pall (Prob. & Div.), X, 531, p. 163 — Definitions, 515 — Will. do V. Lovegrove (Bq. C), VI, 656, p. 500 — Trusts. Phosphate of Lime Co. , Begbie v. do do do V. Green (Com. PL), I, 98, pp. 417, 418 — Public Co. Pickering, Haywood v. do V. Stevenson (Bq. C), III, 754, p. 104 — Corporation, 298 — Lex Loci. Pickwell V. Spencer (Exch.), I, 311, p. 563 — Will. Piercy, Matter of (Chan. App.), VIII, 705, pp.. 31, 33 — Bankruptcy. Piere Superiore, The (Adm & Eccl.), VIII, 648, pp. 4, 5 — Admiralty. Pilcher v. Rawlins (Chan. App.), H, 275, pp. 333, 334 — Mortgage, 504, 505 — Vendor & Purch. Pilking^on, Coles v. Pilley, Saint v. Pinder, lonides v. Pinsoneault, King v. Pinto Leite, Carver v. Piper, Bailey v. do , Hooke v. Pisani v. Attorney-General (Priv. C), X, 78, p. 12 — Appeal, 189 — Estoppel, 214,215— Fraud. Pitt, Simmons v. Pitts V. MUlar (Q. B.), IX, 341, pp. 113, 114 — Grim. Law. plant V. Kendrick (Com. PI.), XIV, 519, p. 389 —Practice. Playford, Castle v. Plumer V. Gregory (Eq. C), XI, 572, p. 280 — Laches, 364 — Parties, 869 — Partnership. Plympton v. Malcomson (Eq. C), XIII, 597, p. 249 — Inj unction, 375 — Patent. Pollock, Middleton v. do V. Pollock (Eq. C), IX, 840, p. 14 — Apportionment. Poole, F. & B. C. Co., In re, Hartley's case (Chan. App.), XI, 511, p. 415 — Public Co. Poole V. Poole (Chan. App.), I, 419, pp. 542, 543 — Will. Pope V. Tearle (Com. PI.), X, 376, p. 7 —Adulteration. Popham, Fischer v. Porritt, Holker v. Portbury, Poleman v. Potter, Finlinson v. do , Begina v. 694 TABLE OF OASES REPORTED. Porto Allegre, etc., Ey. Co., Melhado v. Positive, etc., Ins. Co., Elley v. Pottage, Hookman v. Potter, Matter of (Bq. C.;, IX, 873, p. 170 — Distress. do V. DufSeld (Eq. C), IX, 664, p. 226 — Frauds, Stat, of, 478 — Specific Perf. do , Eaukiu v. Potton, Job V. Poulson, Burns v. Powell, Brown v. Powell Duffa-yn Steam Coal Co. v. Taff Vale Ey. Co. (Chan. App.), VIII, 888, p. 477— Specific Perf. Powell V. Elliott (Chan. App.), XIV, 708, p. 480— Specific Perf. do V. Powell (Chun. App.), XI, 488, p. 364 — Partition. V. (Prob. & Div.), X, 535 ; affirming S. C, VI, 847. p. 10 — Alimony, 196 — Evidence, do V. Kawle (Eq. C), IX, 781,p. 295 — Legacy, do , Sharp v. do V. Smith (Eq. C), III, 654, p. 476 — Specific Perf, Powell's LI. Collieries Co., Blanchet v. Powis, In re. Ex parte Jay (Chan. App.), VIII, 783, p. 87 — Bankruptcy. Powner, Eegiua v. Praagh, Newell v. Preece, Steed v. Prentice V. London (Com. PL), XIV, 611, p. 14 — Arbitration, 189 — Estoppel. Prescott V. Barker (Chan. App.), VIII, 813, p. 564 — Will. Pretty v. Bickmore (Com. P1.),VI, 183, p. 348 — Negligence. Price, Crawley v. do , Lord v. Pride v.jBubb (Chan. App.), I, 436, pp. 338, 339 — Husb. and Wf. Prince v. Eegina (Priv. C), VIIl, 68, p. 153 —Customs. Printing, etc., Co. v. Sampson (Eq. C), XII, 841, p. 875— Patent. Prison Charities, Matter of (Eq. C), VI, 670, pp. 73, 74 — Charities. Prodgers, Giacometti v. Propert, Weeks v.' Proprietors Birmingham Canal, Dunn v. Prothero, Matter of goods of (Prob. & Div.), XII, 671, p. 199 — Executors, etc Provincial Ins. Co., Browning v. ^ , do do V. Leduc (Priv. C), XI, 84, pp. 364, 265, 271, 372— Insur- ance, Mar. 363 — Parties. Prudential Ins. Co. v. Knott (Chan. App.), XI, 498, p. 347 — Injunction. Pryer v. Gribble (Chan. App.), XIV, 776, p. 473 — Specific Perf., 483 — Stipu- lation. Pryse v. Pryse (Ex. C), V, 730, p. 276 — Jurisdiction. Pudsey Gas Co. v. Corpoiation of Bradford (Eq. C), V, 784, pp. 350, 351 — Injunction. Pughe, Lloyd v. Pugin, Birchall v. TABLE OF CASES EEPORTBD. 695 Radde v. Norman (Eq. C), HI, 776, p. 252 — Injunction, 488— Trade Mark Radcliffe, Oulton v. do , Kegina v. Radford v. Willis (Chan. App.);I, 415, p. 567 — Will. Radley v. London and N. W. Ry. Co. (Bxch.), XII, 544 ; reversing S. C, VIII, 516, p. 351 — Negligence. Raggett V. Findlater (Eq. C), VII, 653, p. 489 — Trade Mark. Raine v. Wilson (Eq. C), VII, 590, p. 386 — Practice. Rainy v. Bravo (Priv. C), III, 194, p. 803 — Libel. Rankin v. Potter (H. of L.), V, 40, pp. 270, 271 — Insurance, Mar. Ransford, Regina v. ^ Ratehe, The (Adm. & Bccl.), VII, 364, p. 470 — Ships, etc. Raw, Ciosse v. Rawle, Powell v. ' Rawlins, Pilcher v. Rawlinson v. Miller (Chan. Div.), XV, 644, p. 191 — Evidence, 365 — Partition. Ray, Ball v. Rayner v. Koehler (Eq. C), III, 733, p. 200 — Executors, etc., 379 Pleading Rea, Regina v. Reader, Matter of (Eq. C), XV, 604, pp. 28, 45 —Bankruptcy. Realm Ins. Co., Joyce v. Reary, Greenfield v. Redford, Ashforth v. Redgrave v. Lee(Q. B.), IX, 335, p. 207 — Fartory. Redpath v. Allan (Priv. C), IV, 176, p. 482 — Statutes. Redway v. McAndrews (Q. B.), VII, 126, p. 313 — Malicious Pros. Reed, In re Cox, Ex parte (Chan. Div.), XV, 756, p. 36 — Bankruptcy, do V. Kilburu Co-operative So. (Q. B.), XII, 295, p. 91 — Contract, do , Regina V. ' Rees, Glegg v. do V. Rees (Prob. & Div.). VI, 365, p. 521 — Will. Reeve, Regina v. Regina v. Aden (Cox's 0. C), VI, 337, p. 126— Criminal Law. do V. Allen (C. C. Res.), II, 243, p. 114 — Criminal Law, 482 — Statutes. do tr. Armstrong (Cox's C. C), XIV, 637, p. 278 — Jurisdiction. do v.'Asplin (Cox's C. C), V, 470, p. 121 — Criminal Law. do V. Aunger (Cox's C. C), V, 486, p. 148 ' do do V. BaUey (Cro, C. Res.), I, 394, p. 129 do do V. Banks (Cox's C. C), V, 471, p. 18— Attempt, 114 do do V. Barratt (Cro. O. Res.), VII, 320, p. 133 ' do * do V. Bauld (Cox's C. C), XV, 316, p. 115 do do V. Bird (Cox's C. C), IV, 533, pp. 127, 128 do do V. Blakeman & HoUis (Cox's C. C), VI, 319, p. 112 do do V. Booth (Cox's C. C), IV, 521, p. Ill do do V. Brett (Cox's C. C), XIV, 620, p. 121 do do V. Buckley (Cox's C. C), XV, 328, pp. 143, 144 do do V.' Bullard (Cox's C. C), IV, 603, p. 188 do do V. Bunn (Cox's C. C), IV, 564, p. 114 do 696 TABLE OF OASES EEPORTED. Regina v. Burton (Cox's C. C), XIII, 418, pp. 130, 121 — Criminal Law. do V. Butterworth (Cox's C. C), II, 195, p. 135 do do V. Casey (Cox's C. C), XV, 345, p. 148 do do V. Castro (Q. B.), VI, 317, p. 146 do do V. CatheraU (Cox's C. C), XIII, 455, p. 149 do do V. Caton (Cox's C. C), X, 506, p. 125 do do V, Chambers (Cro. C. Res.), I, 283, p. 133 do do V. Chapman (Cox's C. C), II, 160, pp. 133, 146 do do V. Christian (Cro. C. Res.), VII, 333, p. 117 do do V. Coggins (Cox's C. C), VI, 342, p. 130 do do V. Cooke (Cox's C. C), II, 167, p. 139 do do V. Cooper (Cro. C. Res.). IX, 505, p. 113 ' do do V. do (Q. B. Div.), XV, 155, p. 144 do do V. Coote (Priv. C"), V, 159, pp. 140, 151 do do V. Cesser (Cox's C. C), XIV, 643, p. 118 do do V. Cotton (Cox's C. C), V, 479, p. 145 — Crim. Law, 193 — Evidence, do V.Crawley (Cox's C. C), II, 215, p.. 136 — Criminal Law. do V. Creese (Cro. C. Res.), VIII, 575, p. 133 do do V. Creswell (Cox's C. C), XIV, 619, p. 114 do do V. CuUum (Cro. C. Res.), V, 397, pp. 118, 119 do do V. Daynes & Warner (Cox's C. C.),VI, 339, pp. 135, 136 do do V. Doherty (Cox's C. C), XI, 378 380, p. 140 do do V. Downes (Q. B. Div.), XV, 161, p. 134 do do V. Bripps (Cox's C. C), XI, 381, p. 148 do do V. Edwards (Cox's C. C), IV, 518, p. 144 do do V. English (Cox's C. C), II, 334, p. 121 do do V. Farrell (Cro. C. Res.), IX, 499, pp. 143, 143 do do V. Finney (Cox's C. C), X, 507, p. 123 do do V. Foulke? (Cro. C. Res.), XII, 640, p. 117 do do V. Francis (Cro. C. Res.), IX, 509, p. 145 ' do do V. Furness (Cro. C. Res.), I, 236, p. 139 do do V. Gallagher (Cox's C. C), XJH. 416, p. 146 do do V. Gibbons (Cox's C. C), IV, 537, p. 136 do ' do V. Goldsmith (Cro. C. Res.), V, 437, p. 136 do do V. do (Cox's C. C), VIII, 605, p. 150 do do V. Graham (Cox's C. C), XIII, 413, p. 118 do ' do V. Gratrex (Cox's C. C), 210, p. 139 do do V. Gamble (Cro. C. Res.), IV, 505, p. 136 do do V. Hagan (Cox's C. C), IV, 606, p. 141 do 'do V. HfeU (Cox's C. C.), II, 213, p. 138 — Crim. Law, 193 — Evidence, do V. do (Cox's C. C ), XIII, 409, p. 118 — Criminal Law. do V. Hampton (Cox's C. C), IV, 528, pp. 148, 149 do do V. Handley (Cox's C. C), XIII, 431, pp. 134, 125 do do V. Hare (Cox's C. C), XIV, 627, p. 145 do do V. Harrison (Cox's C. C), II, 174, p. 128 do do V. Hazleton (Cro. C. Res.), XI, 350, p. 120 do do V. Heseltine (Priv. C), V, 483, pp. 134, 138 — Crim. Law, 193 — Evi- dence. TABLE OP CASES EEPOETED. 697 Regina v. Hibbert (Cox's C C), XIII, 433, p. 115 — Criminal Law. do V. Hilditoh (Cox's C. C), II, 194. p. 143 , do do V. HiUarn (Cox's 0. C). II. 327, p. 143 ' do do V. Hitchcock (Q. B. Div.), XV, 151, p. 125 do do V. Hodgson (Cox's C. C,), XIV, 620, p. 121 do do V. Holden (Cox's C. C), II, 219, p. 133 do do V. Holdsworth (Cro. C. Res ), I, 391, p. 134 do do V. HoUis (Cox's C C), VI, 319, p. 113 do do V. Holmes (Cro. C. Res.), 1,236, p. 139 do ■ do V. JackBon&Kew(Cox's C. C.),IV, 605, p. 137 do do V. Jacobs (Cox's C. C), II, 204, p. 139 do do V. James (Cox's O. C.,, II, 192, p. 135 do do V. John (Cox's C. C), XIII, 443, p. 134 — Crim. Law, 240 — Husband and Wf . do V. Johnson (Cox's C. C), IV, 540, p. 132 — Criminal Law. do V. Jones (Cox's C. C), IV, 530, p. 141 do do V. do (Cox's C. C), X, 510, p. 124 do do V. Justices of Co. Prison of Lewes (Exch.), XIV, 379, p. 279 — Juris- diction, do V.Kay (Q. B.), VI, 86, p. 483 — Statutes. do v.'KendaU (Cox's C. C), VIII, 609, p. 128 — Criminal Law. do V. Kew (Cox's C. C), IV, 605, p. 137 • do do V. King (Cox's O. C), II, 198, p. 139 do do V. Kitchener (Cro. C. Res.), VII, 327, p. 131 do do V. Knight (Cox's C. C), II, 186, p. 139 do do V. Langton (Cox's C. C), XV, 366, pp. 138, 145, 146 do do V. Lefroy (Q. B.), IV, 250, p, 87 Contempt. do V. Lewis (Cox's C. C), II, 316, p. 139 do do V. Lince (Cox's C. C), VI, 814, p. 120 do do V. Lock (Cro. C. Res.), IV, 412, p. 113 do do V. McLeod (Cox's C. C), VIII, 589, p. 124 do do V. McMahon (Cox's C. C), XV, 308, p. 130 do do V. Madden (Cox's C. C), IV, 528, pp. 148, 149 do do V. Manning (Cro. C. Rea.), I, 230, p. 131 do do V. Martin & Webb (Cro. C. Res.), II, 254, p. 148 do do V. Matthews (Cox's C. C), VI, 339, p. 137 do do V. Mayers (Cox's C. C), IV, 559, p. 133 do do V. Middletou (Cox's C. C), IV, 536; S. C, V, 407, p. 138 — Criminal Law. do V. Miller (Cox's C. C), XIV, 683, p. 113 do do V. Morton (Cro. C. Res.), V, 393, pp. 131, 123 do do V. Mount (Priv. C), XII, 181, p. 150 do do V. Murphy (Cox's C. C), XV, 333, p. 130 -do do V. Mycock (Cox's C. C), II, 177, p. 113 do do V. Negus (Cro. C. Res.), V, 403, p. 119 do do V. Newboult (Cro. C. Res.), I, 391, p. 134 do do V. Nicholls (Cox's C. C), XIII, 433, pp. 133, 134 do do V. Noonan (Cox's C. C), XV, 337, p. 133 do do V. Onslow (Cox's C. C), V, 448, p. 116 do 88 698 TABLE OF OASES REPORTED. Regina v. Oxenham (Cox'a C. C), XV, 373, pp. 136, 137 — Criminal Law. do V. Parmenter (Cox's C. C.),' II, 331, p. 144. do do V. Payne (C. C. Res.), I, 396, p. 146 — Crim, Law, 569 — Witness, do V. Pembleton (Cro. C. Res.), IX, 501, p. 131 — Crim. Law. do V. Porter (Cox's C. C), V. 497, p. 133 do do V. Powner (Cox'a C. C), IV, 535, p. 135 do do V. Prince (Cro. C. Res.), XIII, 385, pp. Ill, 113 do do V. Radcliffe (Cox'a C. C), VI, 334, pp. 119, 137, 137, 140 do do V. Ransford (Cox'a C. C), XI, 363, p. 134 do do V. Rea (Cro. C. Res.), II, 341, pp. 114, 115 do do V. Reason (Cox's C. C), IV, 517, p. 140 do do V. Reed (Cox's C. C), II, 157, p. 135 do do V. Reeve (Cro. C. Rea.), II, 338, pp. 140, 141 do do V. Richmond (Cox's C. C), VI, 333, p. 136 do do V. Roberts (Cox's C. C), VIII, 601, p. 151 do do V. Roden (Cox's C. C), X, 511, pp. 144, 145 do do V. Rogers (Cro. C. Res.), I, 330, p. 131 do do V. Rothwell (Cox's C. C), II, 301, p. 133 do do V. Roxburgh (Cox's C. C), II, 165, p. 113 do do V. Rudge (Cox's C. C), XI, 373, p. 149 do do V. Rue (Cox's C. C), SIV, 646, p. 141 do do V. Satchwell (Cro. C. Kfes.), V, 893, pp. 113, 149 do do V. Saunders (Q. B.Div.), XV, 151, p. 135 do do V. Savage (Cox's C. C), XIV, 633, p. 138 do do V. Shropshire Union Co.(Q. B.), XIII, 30; reversing S. C, VI, 147, p 497 — Trusts. do V. Sinclair (Cox'a C. C), XI, 385, p. 113 — Criminal Law. do V. Sinclair (Cox's C. C), XI, -385, pp. 113, 113 do do V. Skipworth (Cos's C. C), V, 456, p. 116 do do V. Slowly (Cox's C. C), IV, 545, p. 138 do do V. Smith (Cox's C. C), VIII, 608, p. 151 do do V. Spanner (Cox's C. C), II, 308, p. 138 do do V. Steele (Cox's 0. C), II, 331, p. 143 do do V. Stewart (Cox's C. C), XV, 331, p. 142 do do V. Tancock (Cox's C. C), XIV, 654, p. 138 do do V. Tate (Cox'a C. C), II, 164, p. 133 do do V. Taylor (Cox'a C. C), X, 509, p. 138 do do V. do (Cro. C. Res.), XII, 636, p. 135 do do V. do (Cox's C. C), XIII, 427, pp. 143, 144, 145 do do V. Thomas (Cox'a C. C), XI, 357, p. 149 do do V. Thompson (Cro. C. Res), II, 353, p. 146 do do V. do (Cox'a' C. C), XIV, 635, p. 143 do do V. Tichborne (Q. B.), IX, 333, pp. 133, 146, 147 do do V. Torpey (Cox's C. C), II, 180, pp. 136, 137— Crim. Law, 240 — Hus- band and Wf . do V. Towers (Cox's C. C), VIII, 585, p. 133 — Criminal Law. do V. Turner (Cox's C. C), IV, 561, p. 142 do do V. Twist (Cox's C.C), VI, 335, p. 139 ' do do V. Venn (Q. B.), XIII, 355, p; 151 — Customs. TABLE OP CASES REPORTED. 699 Uegina v, Vernon (Cox's C. C), II, 206, p. 140 Criminal Law. do V. Vine (Q. B.),XII, 259, p. 197 — Excise. do V. Wainright (Cox's C. C), XIV, 633, pp. 141, 149 — Criminal Law. do V. Ward (Cro. C. Res.), I, 403, p. 134 do do V. Warner and Daynes (Cox's C. C), VI, 339, pp.125, 136 — Crim. Law. do Waters (Cox's C. C), V, 469, p. 16 — Arrest, 119 — Crim. Law. do V. Watkinson (Cox's C. C), IV, 547, p. 135 do do V. Weaver (Cro. C. Res.), VII, 333, p. 191 — Evidence. do V. Webb & Martin (Cro. C. Res.), II, 354, p. 148 — Crim. Law. do V. Welch ( Q. B. Div.), XV, 159, p. 131 do do , White v. . do V. Widdop (Cro. C. Res.), IV, 507, p. 44— Bankruptcy;i34— Crim. Law. do V. Wildman (Cox's C. C), IV, 603, p. 147. Criminal Law. do V. WilUa (Cox's C. C), 11, 218, p. 139 do do V. do (Cro. C. Res.), II, 339, p. 150 do do V. Wilson (Cox's C. C), X, 504, pp. 143, 151 do do V. Wollaston (Cox's C. C), II, 234, p. 113 do do V. Woodhall(Cox'sC. C.).IV, 529,p. 149 do do V. Woodhurst (Cox's C. C), V, 496, p. 137 do do V. World (Cox's C. C), XV, 340, p. 130 do do V. Yates (Cox's C. C), IV, 533, p. 136 do Rennie, Anglo Eq. Nav. Co. v. do V. Morris (Eq. C), I, 651, p. 399 — Prmcipal & Agt. Revell V. Blake (Com. PI.), VI,.336, p. 25 — Bankruptcy, 276 — Jurisdiction.' Reynard v. Arnold (Chan. App.), XII, 766, p. 389 — Landlord & Ten. Reynolds, Matter of goods of (Ptob. & Div.), V, 528, pp. 516, 517 — Will. do V. Howell (Q. B.), VI, 129. p. 393 — Practice. Rhodes v. Porwood (App. C), XV, 134, p. 93 — Contract, 319 — Master & Serv. Richards v. Delbridge (Eq. C), IX, 669, p. 491 — Trusts. Richardson, Matter of (Eq. C), XIII, 538, pp. 430, 431 — Public Co. Richardson, Goodson v. do V. Great Eastern Ry. Co. (Com. PI.), XIII, 343, p. 350 — Negligence, do V. Morton (Eq. C . ), I, 61 1, p. 203 — Executors, etc., 293 — Legacy, do V. North Eastern Ry. Co. (Com. PI.) I, 136, p. 64 —Carrier, do , Stanton v. do , Sutcliffv. Riche, Ashbury»Ry. Carriage, etc., Co. v. * Richmond, Regina v. Ridge's Trusts, Matter of (Chan.. App.), Ill, 559, pp. 550, 551 — Will Ridgway v. Edwards (Chan. App.), VIII, 787, p. 387— Practice. Riley, Kent v. Rimini v. Van Praagh (Q. B.), IV, 196, p. 45 — Bankruptcy. Ripley v. Great Northern Ry. (Chan. App,), XIV, 717, pp. 185, 186 — Eminent Domain. Robarts, Matter of goods of (Prob. & Div.), VII, 346, p. 535 — Will, do , Goodwin v. do , Johnson v. Roberts v. Edgerton(Q. B.), X, 138 p. 7 — Adulteration, do , Gunn v. 700 TABLE OF CASES EEPORTED. Roberts v. Humplireys (Q. B.), VII, 93, p. 139 — Criminal Law. do , Regina v. Robertson, Matter of (Bq. C), XV, 585, p. 376 — Jurisdiction. Robey & Co.'s P. Iron Works v. Olliver (Chan. App.), Ill, 571, pp. 16, 17 — As- signment, 304 — Lien. Robinson, Ashton v. do , Boddington v. . do , Halfhide v. do V. Knights (Com. PI.), VI, 330, p. 76 — Charter Party. do V. Mollett (H. of L.), XIV, 177; reversing S. C, I, 835, p. 153 — Custom. do , Stewart v. Eobson V. North Eastern Ey . Co. (Q. B.), XII, 303, p. 346 — Negligence Rock V. Lazarus (Eq. C), V, 748, p. 103 — Copyright. Roden, Regina v. Rodecouachi v. Elliott (Com. PI.), X, 388; affirming S. C, VII, 300, p. 166 — Definitions, 365, 366 — Insurance, Mar. Roe, Evans v . Rogers, Matter of (Chan. App.), IX, 531, p. 43 — Bankruptcy, 198 — Execution, do , Regina v. do , Warriner v. Rokeby, Lord, Dawkins v. Rollins, V. Hinks (Eq. C), I, 716, p. 351 — Injunction. Rooth, Askew v. Roper V. Johnson (Com. PI.), IV, 397, p. 98 — Contract, 160 — Damages. Rose, The (Adm. & Eccl.), V, 550, p. 6 — Admiralty, do , Pappa V. Rosedale, etc.. Iron Co., Tyers v. Rosher v. Williams (Eq. C.),XIII, 733, p. 510 — Voluntary Settlement. Ross' Trust, Matter of (Eq. C), I, '683, p. 170 — Distribution. Ross V. Peddea (Q. B.), Ill, 354, p. 839 — NegUgence. do , Hicks V. do V. Parkyns (Eq. C), XIII, 834, p. 366 — Partnership. Rbthwell, Regina v. Roquette v. Overmann (Q. B.), XIV, 830, p. 398- -Lex Loci. Routledge, Warne v. Rowe V. London Piano Forte Co. (Cox's C. C), XIV, 648, pp. 307, 308 — False ' Imprisonment, do , Watson v. Rowland, Fothergil v. do , Morgan v. Rowland v. London & N. W. Ry. (Exch), VI, 393, pp. 158, 159 — Damages, 194 — Evidence, 569 — Witness. Rowsell V. Morris (Bq. C), VII, 646, p. 304 — Executors, etc. Roxburgh, Regina v. Roye, Republic of Liberia v. Royden, Clover v. Rudge, Regina v. Ruding's Settlement, Matter of (Eq. C), III, 736, p. 458— Settlement, 551 — Will. TABLE OP OASES REPORTED. 701 Rue, Hegina v. Ruffles V. Alston (Eq. C), XIII, 483, p. 315— Marriage Settlement. RusseU's Trust (Eq. C), V, 694, p. 257 — Insurance, Life. Russell V. Wakefield Water Works Co. (Eq. C), XV, 448, p. 421 — Public Co. Rust, Buxton v. Rutherford, Llewellyn v. Sackville v. Smyth (Eq. C), VII, 734, p. 334— Mortgage. Sadler, Webb v. Saint v.Pilley (Exch.), XII, 577, p. 211 — Fixtures. Salaman v. Glover (Eq. C), XV, 436, p. 179 — Easement. Sale V. Lambert (Eq. C), IX; 661, p. 225 — Frauds, Stat. of. Salt, Andrews v. Salter, Batstorie v. Salvin v. N. Brancepeth Coal Co. (Chan. App.), X, 685, p. 248 — Injunction, 391 — Practice. Sampson, Printing, etc., Co. v. Samson, In re goods of (Prob. & Div.), V, 540, p. 198 — Executors, etc. Sander V. Heathfield (Eq. C), XI, 642, p. 203 — Executors, etc., 494— Trusts. Sanderson v. Aston (Exch.), IV^ 452, p. 401 — Principal and Sur. do V. Graves (Com. PI.), XIII, 364, pp. 221, 222 — Frauds, Stat. of. do , McKewanv. SandiU v. Franklin (Com. PL), XII, 439, p. 287— Landlord and Ten. Sankey, Lee v. San Paulo Ry. Co., Sharp v. San Roman, The (Adm. & Eccl.), IV, 621, p. 75 — Charter Party. Sant V. Sant (Priv. C), X, 101, p. 172 — Divorce. Sargent, Matter of. In re Tahita Cotton Co. (Eq. C), VII, 813, p. 413 — Pub- lic Co. Satchwell, Regina v. Saull V. Browne (Chan. App.), XI, 434, p. 246 — Injunction. Saunders, Regina v. do , Woods V. Savage, Jerges v. do , Regina v. Savin, Oriental Commercial Bank v. Saiby V. Easterbrook (Exch.), II, 121, p. 2 — Accounting. Scaifec v. Parrant (Exch.), XIV, 611, p. 67— Carrier. Scaramanga, Harris v. Scargill, Carter v. Scarlett, Matter of (Chan. App.), VI, 586, p. 310 — Lunacy. Scheibler, Matter of (Eq. C), X, 694, p. 296 — Lex Loci. Schoolbred, Motts v. Sohulte, Ex parte ; In re Matanle (Chan. App.), VIII, 933, p. 42 — Bankruptcy. 197 — Evidence, 356 — Notice. Schwan, The (Adm. & Eccl.), VIII, 663, p. 7— Admiralty. Schweder, Leech v. Scinde Ry., Matter of. Oriental, etc., Co., Matter of (Chan. App.), X, 586, pp, 188, 189 —Estoppel. Scott, Cape v. 703 TABLE OP OASES REPOETED. Scott, Commins v. do V. Cumberland (Bq. C.),^I, 546, p. 3 — Administration Suit. da , Gorris v. do , Hogg V. Scriingeour's Claim, Laoey v. Hill (Chan. App.), VII, 473, p. 58 -^Broker. Scrutton v. Pattillo (Bq. C), XII, 803, p. S37 — Husband and Wf. . Searle v. Laverick (Q. B.), VIII, 298, p. 23 — Bailment. Secretary of State, ete., Singh v. Seddon, Aspden v. Seddons, Parkins v. Selby, Nesham v. . . Selby V. Nettlefold (Chan. App.), VIII, 770, p. 179 — Basement, 357 — ;Notice. Seward, Jacobs v. Seymour, London & P. Ins. Co. v. Shackleton, Matter of (Chan. App.), XIV, 723, p. 315 — Fraud. Shadgate, Brooks v. Shand v. Da Binsson (Eq. C), IX, 803, p. 17 — Assignment, 213 — Foreign Attachment, Shankland, Watson v." Sharp, Hamer v. do V. Powell (Com. PI.), H, 567, p. 348 — Negligence. Sharpe v. San Paul Ey. Co. (Chan. App.), VI, 516, p. 95 — Contract, 186 — Equity, 364— Parties. Shaw's Claim, Matter of Brampton, etc., Ey. Co. (Chan. App.), XII, 691, p. 435 — Public Co. Shaw V. Foster (H. of L.), II, 1, p. 330 — Mortgage, 504 — Vendor & Puroh. . Sheffield, Matter .of (Chan. App.), IV, 866, p. 374— Patent. Sheffield Waterworks Co. v. Bennett (Exch.), V. 381, p. 166 — Definitions, 513, 514 — Water Tax. Shepheard v. Walker (Eq. C), XV, 530, p. 476 — Specific Perf. do V. Whittaker (Com. PI.), XIV, 395, p. 300 — Libel. Sherratt v. Mountford (Chan. App.), VII, 479 ; affirming S. C, V, 856, p. 165 — Definitions, 557 — WilL Sheraon, Bothamley v. Short V. Short (Prob. & Div.), X, 541, p. 174— Divorce. Shrewsbury Earl of, Hdward v. do do Marshall v. do do Stanley v. do do Talbot v. Shropshire U. Ry. & Canal Co. v. The Queen (H. of' L.), XIH, 20; reversing of S. C. , VI, 147, p. 195 — Evidence, 497 — Trusts, etc. do Union Co., Begina v. Shuter, Ogg v. Sidney v. Sidney (Eq. C), VII, 681, p. 294 — Legacy. Silber, Ellis v. Simmons v. Pitt (Chan. App.), VII, 514, pp. 533, 534 — Will. Simpson, Matter of (Chan. App.), X, 597, p. 373 — Partnership, do V. Crippen (Q: B.), IV, 300, pp. 447, 448 — Sale. do V. Henning (Q. B.), XIII, 310, p, 44 — Bankruptcy. TABLE OP CASES REPORTEIX 703 Simpson, Moseley v. do V. Peach (Bq C), VI, 719, pp. 567, 568 — Will. Simson v. London Gen. Omnibus Co. ( Com. PL), VI, 173^ pp. 341, 343 — Negli- gence. Sinclair, Hegina v. Singh V. Khan (Ind. App.), XI, 113, p. 10 — AUuvion^ do V. Secretary of State (Ind. App.), XI, 118, p. 375 — Jurisdiction. Sittingbourne, Ward v. Skinner y. Great Northern Ry. Co. (Exch.), X, 463, p. 388 — Practice. ■ do V. Visger (Q. B.), Vni, 313, p. 504 — Turnpike. Skipworth, Eegina v. Slark V. Dakyns (Chan. App.), XI, 438 ; affirming S. C, V, 857, p. 383 — Power. Slater v. Jones (Exch.), V, 378, p. 44 — Bankruptcy. Sleeman v. Wilson (Eq. C), 1, 538, p. 335 — Guardian & Ward, 493, 497 — Trusts, 531 — Will. Slowly, Regina t. Smale v. Burr (Com. PI.), IV, 330, p. 63 — Bill of Sale, 337 — Fraudulent Conv. Small, Dawson v. Smart, British Mut. Invest. Co. v. do , Hooper v. do , Matter of (Chan. App.), IV, 855, p. 33 — Bankruptcy. Smidt V. Tiden (Q. B.), IX, 379, p. 74— Charter Party. Smith, Matter of (Chan. App.), XI, 444, p. 171 — Distribution. do V. Baker (Com. PI.), V, 333, p. 38 — Bankruptcy, 183 — Election. do V. Bank of New South Wales (Priv. C), III, 74, p. 56 — Bottomry. do, Beall v. do V. Cook (Q. B. Div.), XV, 194, pp. 9, 10 — Agistment. ■ do V. Darby (Q. B.), Ill, 381, pp. 335, 336 — Mines. do V. Eggington (Com. PI.), VIII, 454, pp. 388, 389 — Landlord & Ten. do V. Fletcher (Exch.), VIH, 510; reversing S. C, III, 433, pp. 341, 343 — Negligeaee. i do , Geipel v. do , Goddard v. do , Gregg v. do V. Iliffe (Bq. C), XV, 536, p. 439 — Reformation of Instr. do , Keet v. do V. Myers (Q. B.), 1, 43, p. 97 — Contract. do , Marshall v do , Martin v. do , Nugent v. do , Orton v. do V. Peters (Bq. C), XV, 463, p. 393 — Practice, 493 — Specific Perf. do , Powell V. do , Regina v. do V. St. Lawrence Tow Boat Co. (Priv. C), VIII, 336, p. 350 — Negligence. do V. Steele (Q. B.), XI, 194, p. 331 — Master & Serv. do V. Union Bank (Q. B. Div.), XV, 166 ; afdrming S. C, XIII, 838, p . 83 — Check. 704 TABLE OF CASES EEPOETED. Smitli, Wood v. Smyth, Sackville v. Sneesby V. Lancashire, etc., By. Co. (Q. B. Div.), XV, 176; affirming S. C, Tin 337, pp. 337. 355 — Negligence, 393 — Practice. Snelling v. Thomas (Eq. C), VII, 829, pp. 476, 477— Specific Perf. Sobey v. Sobey (Bq. C), V, 805 p. 386 — Ne exeat. Sgftley, Matter of , Ex parte Hodgkin (Eq. C), XV, 593, p. 40 — Bankruptcy . Sottomalor, Matter of (Chan. App.), X, 663, p. 310 — Lunatic. South, Matter of (Chan. App.), VIII, 914, p. 198 — Executors, etc., 344 — Infant. Southam. Matter of (Eq. C), IX, 657, p. 81 — Chattel Mort. Soutten, Ingram v. Spanner, Regina v. Spargo'8 case. In re Harmony, etc.. Tin & Copper Mining Co. (Chan. App.), V 626, pp. 376, 377 — Payment, 411 — PubUo Co. Spencer, The (Adm. & Eccl.), XIV, 684, p. 465 — Ships, etc. do , Pickwell v. do V. Wilson (Eq. C), VI, 830, p. 561 —Will. Spensley v. parrison (Eq. C), V, 685, p. 108 — Costs. Spindrift, The (Adm. & Eccl.), XIV, 699, p. 467 — Ships, etc. Spittle, Bloomer v. Spoor V. Green (Exch.), VIII, 540, pp. 110, 111 — Covenant, 381 —Pleading. Stafford, Lycett v. Staffordshire, The (Priv. C), in,' 74, p. 56 — Bottomry. do , etc., Waterworks Co., Clowes v Stallibrass, Want v. Stanford, Palvey v. do V. Hurlstone (Chan. App.), VIII, 775, p. 353 — Injunction. Stanley v. Dowdeswell (Com. PL), XI, 370, p. 89— Contract. do V.Shrewsbury (Eq. C), XIII, 546, p. 179 — Easement, 348 — Injunc tion. Stanton v. Austin (Com. PI.), in, 417, p. 80 — Charter Party. do V. Richardson (Com. PI.), X, 333 ; affirming S. C, III, 314, pp. 78, 79 — Charter Party. St. Catherine's College, Parrar v. Stead, Butcher v. do V. Hardaker (Eq. C), V, 789, pp. 548, 549 — WilL Steadman, Poulget v. Steble, Morgan v. Steed v.Preece (Eq. C), IX, 738, p. 378 — Personalty. Steele v. Brannan (Com. PI.), II, 575, pp. 360, 361 — Obscene Publication. do , Regina v. do , Smith v. Stenton & Belhaven Steerage (App. Cas.), XV, 143, p. 198 — Evidence. Stephens, Matter of (Com. PL), VIII, 481, p. 393 — Practice. do V. Australasian Ins. Co. (Com. PL), IV, 296, p. 361 — Insurance, Mar. Stephenson, Pickering v. TABLE OF CASES EEPORTED. 705 Stepney, Daniel v Stewart v. Robinson (Sc. App.), XIII, 165, p. 313 — Marriage. Stevens, Goods of (Cox's C. C), V, 468, p. 149 — Criminal Law. Stevens' Trust, Matter of (Eq. C), V, 746, p. 165 — Definitions, 556 — Will. Stevens, London Financial Asso. v. do V. Mid Hants Ry. Co. (Chan. App.), VII, 555, p. 434 — Public Co. I Stevenson, Henderson v. do V^ Masson (Eq . C), VII, 693, p . 394 — Legacy, 397, 398 — Lex Loci. do V. Mayor, etc., of Liverpool (Q. B.), XI, 160, p. 558— Will. do ,The, and The Bougainville (Priv. C), VIII, 343, p. 465— Ships, etc. Stewart, Goods of (Prob. & Div.), XIII, 466, p. 199 — Executors, etc. do v. Eddowes (Com. PI.), IX, 405, p. 195 —Evidence, 334— Frauds, Stat. • of. do , Hudson v. do , Regina v. do V. West India & Pac. Steamship Co. (Q. B.), IV, 339; affirmed S. C., (Exch.), VI, 103, p. 471 — Ships, etc. Stimson v. Farnham (Q. B.), I, 60, pp. 458, 459 — Sheriff. St. Lawrence Tow Boat Co., Smith v. St. Mary Islington, London School Board v. Stock V. Holland (Exch.), IX, 460, p. 43 — Bankruptcy. do V. McAvoy(Eq, C), V, 711, p. 8 — Advancement. • Stocks V. Ellis (Q. B.), VI, 169, p. 83— Commission. Stockton Waterworks, Cattle v. Stohwasser, Mumford v Stokes, Armstrong v. Storr, Benjamin v. Starchan, Adamson v. Stranton Iron & Steel Co., Matter of (Bq. C), VII, 581, pp. 413, 414 — Public Co Strathmore's Estate, Matter of (Eq. C), IX, 848, pp. 108 — Costs, 487 — Tenant for Life. Strong V. Bird (Bq. C), IX,. 837, pp. 330, 331 — Gift. Strutt's Trust, Matter of (Eq. C), VII, 634, p. 499 — Trusts. Superiore, The Piere (Priv. C), IX, 364, p. 4 — Admiralty. Sutcliffe V. Richardson (Eq. C), II, 406, p. 543— Will. ' Sutherland, The (Adm. & Eccl.), XIV, 670, 673, p. 464 — Ships, etc. Swahey v. Goldle (Chan. Div.), XV, 798, p. 537 — Will Swaffield, Gt, Northern Ry. Co. v Sweeting v. Turner (Q. B.), II, 73, p. 400 — Principal and Agt , 443 — Sale. Swift V. Jewsbury (Q. B.), VIII, 354, pp. 315, 316 — Fraud. do V. Wintherbotham (Q. B.), V,;303, pp. 315, 316— Fraud, 397— Princi- pal and Ag^nt. Swindon, Local Board, Bolingbroke v. do Waterworks Co. v. Wilts, etc., Canal Co. (H. of L.), XIV, 86 ; modi, fying S. C, IX, 546, p. 346— Injunction, 442 — Riparian Owner, 513 — Water-course. 89 706 TABLE OF OASES EEPORTED. Syers v. Syers (App Cas.), XV, 5a, pp. 386, 367 — Partnership. Sykes, Matter of goods of (Prob. & Div.), V, 521, p. 190 — Evidence, 521 — Will, do V. Sykes (Eq. C), I, 555, p. 549 — Will. Sylvester, Philips v. do , Thomas v. , Symington v. Symington (Sc. App.), XII, 109, p. 362 — Parent and Child. Symonds v. Symonds (Prob. & Div.), IV, 674, p. 176 — Divorce. Synge v. Synge (Chan. App.), VIII, 778; modifying S. C.,V,897, p. 551 — Will. Syria, The, and The American (Priv. C), XI, 75, 395, p. 466— Ships, etc. Taff Vale Ry. Co. v. McNabb (H. of L.), VI, 1, p. 433 — Railway Co. do , Powell, etc.. Coal Co. v. Tagg, Hedges V. Tagore v. Tagore (Ind. App.), IX, 309, pp. 168, 169 — Devise. Tahita Cotton Co., In re Sargent (Eq. C), VII, 813, p. 413 — Public Co. Talbot V. Earl of Shrewsbury (Eq. C), 111,830, pp. 181, 183 — Ej ectment, 193 — Evidence, do V. Jevers (Eq. C), XIII, 775, p. 533 — Will. Tancock, Regina v. Tanham v. Nicholson (H. of L ), III, 154, p. 181 — Ejectment. Tapp V. Jones (Q. B.), XIV, 388, p. 18 —Attachment. Tapscott V. Balfour (Com. PI.), IV, 316, pp. 76, 77, 78— Charter Party, 165 — Definitions. Tate, Regina v. Tatham, Hutchinson v. Taylor, Gillman v, do V. Qreenhalgh (Q. B.), X, 135, p. 321 — Master and Serv. do V. Liverpool & G. W. Steam Co. (Q. B.),X,172, p. 49 — Bill of Lading, 164, 167 — Definitions, 195 — Evidence . do , Regina v. do V Taylor (Eq. C), VII, 848, p. 548 — Will, do V. do (Eq C), XIII, 692, p. 9 — Advancement, 458 — Set-off. Teape's Trusts, Matter of (Eq. C), VI, 801, p. 383 — Power. Tearle, Pope v. Teasdale's Case (Chan. App.), VIII, 732, pp. 414, 415 — Public Co. Telegraph Construction Co., Fraser v. do , Despatch & Intel. Co. v. McLean (Chan. App.), VI, 561, p. 94 — Con- tract, 254— Injunction. Tennant, City of London Brewery Co. v. Terrero, Ohlsen v. Terry, Attorney-General v. do V. Brighton Aquarium Co. (Q. B.), XIII, 253, pp. 484, 485— Sunday, do , TuUy V. Teutonia, The, Duncan v. Koster (Priv. C), II, 526, p. 79— Charter Party. Tewart v. Lawson (Eq. C), X, 805, p. 437 — Receiver. Thames, Conservators of. Winch v. Tharsis Sulphur & Copper Co. v. Loftus (Com. PL), IV, 283, p. 16 — Arbi- trator, 837 — Negligence. Theodor, Westwick v. TABLE OP CASES EEPOETED. 707 Thomas v. Howell (Eq. C), IX, 744, p. 552 — Will. do V. Reglna (Q. B.), XI, 134, p. 233 — Government, 378 — Petition of Biglit. do , Snelling v. do V. Sylvester (Q. B.), VI, 103, p. 440 — Bents. Thompson, Trust Deed, Mattet of (Chan. App.), XI, 433, p. 493 — Trusts, do V. Burra (Eq. C), VII, 604, p. 549 — Will do ' , Kreift v. do , Morrison v. do , Regina v. Thorn V. Mayor of City of London (App. Cas.), XV, 28; affirming S. C, XII. S55, and IX, 472, p. 97 — Contract. Thornbury, Wilson v. Thornton, Gillett v. do V. Maynard (Com. PI.), XIV, 532, p. 454 — Set-off. do V. Thornton (Eq.. C), XV, 509, pp. 547, 548— Will. Thorpe v. Srumfitt (Chan. App.), VI, 554, p. 179 — Easement, 360 — Nuisance . Threfall v. Borwick (Exch.), XII, 266 ; affirming S. C, II, 689, p. 254— Inn- keeper. Thursby v. Thursby (Eq. C), XII, 808, pp. 560, 561 — Will. Tichborne v. Mostyn (Com. PI.), IV, 303, p. 183 — Ejectment, do , Murray v. do , Regina v. Ticknor v. Old (Eq. C), X, 743, pp. 558, 559 — Will. Tiden, Smith v. Tinker's Estate, Matter of (Eq. C), XV, 440, p. 561 — Will. Todd V. Moorhouse (Eq. C), XI, 680, pp. 486, 487 — Tenant for Life. Toleman v. Portbury (Q. B.). II, 89, p. 285 — Landlord & Ten. Tommas, Marler v.* . Toole V. Young (Q. B.), X, 153, p. 104 — Copyright. Topham, Matter of (Chan. App.), VI, 530, p. 41 — Bankruptcy. Torpsy, Regina v. Torrance V. Bank of Br. N. America (Priv. C), VIII, 203, p. 401 — Principal &Sur. do V. Botton (Eq. C), HI, 674 ; affirmed S. C, IV, 800, pp. 506, 507 — Vendor & Purch. Towers, Regina v. Townsend v. Townsend (Prob. & Div.). VIII, 611, p. 173 — Divorce. Trade Auxiliary Co. v. Vickers (Eq. C), VI, 768, p. 436 — Receiver. Traders' N.Staffordshire Carrying Co., In re (Eq. C), XI, 672, p. 45 — Bank- ruptcy. Trail, Perring v. Traippes v. Meredith (Chan. App.), II, 264, p. 543— Will. Trask, Cannon v. Tredegar v. Windus (Eq. C), XIII, 538, p. 183 —Election, 244— Injunction. Treeby, Matter of (Prob. & Div.), XIII, 463, pp. 530, 521 — Will. Trefftz V. Cannelli (Priv. C), III, 146, p. 21 — Bailment. Treharne v. Lay ton (Q. B.), XIV, 282, p. 165- Definitions, 529 — Will. Treloar v. Bigge (Bxch.), IX, 464, p. 163 — Definitions, 283 — Landlord & Ten. 708 TABLE OP OASES KEPOETED. Trench V. Nolan, Gal way Election, Matter of (Weekly R.), II, 711, p. 183 — Election. Trevor, Ex parte (Chan. Div.), XV, 752, p. 26 — Bankruptcy, 81 — Chattel Mortg. Trueman's Estate, Hooker v. Piper (Eq. C), III, 744, p. 499 — Trusts. Trumper v. Trumper (Chan. App.), VII, 433, pp. 73, 73 — Charge. Truscott, Carlyon v. Trustees of Market Harborough, etc., v. Kettering Highway Board (Q. B.), V, 251, p. 482— Statutes. Tucker, Curnick v. do , Kemp v . TafEnell v. Borrell (Eq. C), XIII. 739, p. 188— Estate Tail. Tuite V. Bermingham (H. of L.),XIV, 36, p. 164 — Definitions, 457 — Settle- ment. Tully V.Terry (Com. PI.). VII, 231, p. 48— Bill of Lading, 166 — Definitions. Tupper, Matter of (Chan. App.), VIII, 879, p. 28 — Bankruptcy. Turnbull v. The Stratbnatei- (App. Cas.), XV, 19, pp. 463, 470— Ships, etc. Turner's Goods, In re (Prob. & Div.), Ill, 480, p. 522 — Will. Turner v. Buck (Eq. C), IX, 816, p. 295 — Legacy. do , Chesemore v. do V. Collins (Chan. App.), II, 290, p. 319 — Fraud. do V. Goulden (Com. PI.), VIII, 384', p. 16 — Arbitrator, 389 — Piactice. do , Great Eastern Ey. Co. v. N do V. Morgan (Com. PI.), XIV, 444, p. 378 — Jurisdiction. do , Eegina v. do , Sweeting v. Turton v. Barber (Eq. C), VII, 853, p. 569 — Witness. Tweedale, Matter of (Prob. & Div.), XI, 889, p. 520 —Will. Twist, Eegina v. . Twistleton v. Twistleton (Prob. & Div.), I, 260, p. 175 — Divorce. Tyers v. Eosedale, etc.. Iron Co. (Esch ), XII, 631 ; reversing S. C, VII, 273, p. 159 — Damages, 450 — Sale . UUeswater Steam Nav. Co., Marshall v. Umfreville v. Johnson (Chan . App.), XIV, 803, p. 360 — Nuisance. Union Bank, Smith v. Union Marine lus. Co., Jackson v. United Land Co. v. Great Eastern Ry. Co. (Eq. C), VIII, 738, p. 177 — Easei- ment. United Merthye Collieries Co., Matter of (Eq. C), V, 707, pp. 160, 161 — Damages. United Ports, etc., Ins., In re (Chan. App.), VIII, 939, pp. 428, 439 — Public Co- Universal, etc. , Ins. Co. In re, Forbes' Claim (Eq. C), XII, 846, p. 255 — Insar' ance, Fire. do do Morrison v. do do , Morton v. University College, Yates v. Upmann v. Elkan (Chan. App.), I, 474, p. 106 — Costs, 489 — Trade-mark. Upsall, Hickman v. TABLE OF OASES REPORTED. 709 ITpton, Briggs v. Vale V. Oppert (Chan. App.), XII, 748, p. 19— Attorney, 387— Practice. Vanderzeo, Alexander v. Vane v. Xane (Chan. App.), V, 607, pp. 306, 307 — Limitations, Stat, of, 396— Principal & Agt. Van Praagh, Newell v. do , Rimini v. Varley v. Coppard (Com. PL), III, 378, p. 283— Landlord & Ten. Varna Railway Co. , Crampton v. Vaughan V. Halliday (Chan . App.), X, 590, p. 13 — Appeal, 304 — Lien. Vaughn, McKechnie v. Vaughton v . Loudon & N. W. Ry . Co. (Bxch.), VIII, 535, p. 68 — Carrier. Vaux, Matter ot (Chan. App.), X, 613, p. 36 — Bankruptcy, ''''enables, Harris v. Venn, Regina v. Vernon, Regina v. Vestry of Bermondsey v. Johnson (Com. PI.), VI, 305, p. 306 — Limitations, Stat. of. Vestry of St. Paucraa, Hammond v. Viant's Estate, Matter of (Eq. C), X, 755, p. 316 — Marriage Settle. Vitkers, Trade Auxiliary Co. v. Villars, Matter of, In re Rogers (Chan. App.), IX,531, p. 43 — Bankruptcy, 198 — Execution. Vine, Regina v. Visger. Skinner v. Von Oppen, Newby v. Vysa V. Foster (H. of L.), XI, 1; affirming S. C, IV. 904, pp. 503, 503— Trusts. "Waddell v. 'Wolfe (Q. B.), X, 145, p. 506 — Vendor & Purch. 'Wainford v. Heyl (Eq. C), XIII, 835, p. 340 — Husband & Wt., 503 — Trusts, etc. Wamwright, Regina v. 'Waite V. Littlewood (Chan. App.), IV, 760, p. 167 — Definitions, 540— 'Wm. Wakefield Waterworks, Russell, v. Waldy V. Gray (Eq. C), XIII, 759, p. 193 — Evidence, 331,333 — Mortgage, 357 — Notice. Wales Brown v. Walker, Matter of (Chan. App.), I 465, p. 393 — Legacy. do V. Homer (Q. B. Div.), XV, 146, p. 336 — Highway. do , Lee v. do , Shepheard v. Walle^ley Local Board, Joli£fe v. Walley, Walsh v. Wall's Case (Eq. C), V, 686, p. 89 — Contract, 439;— Public Co. Wall V. City of London Real Co. (Q, B.), VIII, 381, pp. 157, 158 — Damages. Wallis, The Owen (Adm. & Eccl.), VIII, 653, p. 466 — Ships, etc. Walroud V. Hawkins (Com. PL), XII, 406, p. 385 — Landlord & Ten. Walsh, Matter of (Chan. App.), XV, 676, p. 438 — Public Co. do V. Walley (Q. B.), IX, 338, p. 330— Master & Serv. 710 TABLE OP CASES EEPOETED. Walsh V. Wason (Chan. App.), VI, 441, p. 236 — Husband & Wf. Walter, Collier v. Walters, Harvey v. do , Hunter v. do , Meinertzagen v. Want V. Stallibrass(Bxch.),V, 363, p. 1 — Abstract of Title, 509 — Vendor* Purch. Ward, Matter of (Chan. App,), IV, 823, p. 35 — Bankruptcy, 444, 445— ISale. , Ward's Trusts, Matter of (Chan. App), III, 597, pp. 885, 386 -Power. Ward V. Breton (Eq. C), XI, 793, p. 245 — Injunction, do , Begina v. do V. Sittingbourne, etc., Ry. Co. (Chan. App.), X, 545, p. 433 — Public Co. do V. Wolverhampton Waterworks Co. (Eq. C), I, 658, p. 93 — Contract. Warden, Edwards v. ' Wardle, Weisse v. Warne v. Eoutledge (Eq. C). X, 811, p. 103 — Copyright Warner v. Brighton Aquarium Co. (Bxch.), XIV, 578, p. 133 — Criminal Law, 106 — Definitions, do , Gray v. do , Regina v. Warren, Ex parte. In re Joyce (Chan. App.), XII, 714, pp. 37, 38 — Bankruptcy. do , Giles v. Warriner v. Rogers (Eq. C), VI, 781, p. 331 — Gift. Warrior, The (Adm. & Eccl.), IV, 608, p. 467 — Ships, etc. Wason, Walsh v. Waterer v. Waterer (Eq. C), V, 901, p. 368 — Partnership. Waters, Matter of (Chan. App.), VI, 490, p. 30 — Bankruptcy, 90 — Contract. do , Regina v. Wates, Hills v. Watkins, Matter of (Chan. App.), VI, 466, p. 35 — Bankruptcy, 153 — Custom- Watkins, Mellor v. do V. Nash (Eq. C), XIII, 781, p. 188 — Escrow. Watkinson, Regina v. Watson V. Cox (Eq. C), V, 816, p. 99 — Contract. do V. Row (Eq. C), XI, 605, pp. 303, 304 — Executors, etc. do V. Shankland (Sc. & Div. App.), VI, 75, p. 76 — Charter Party, do V. Woodman (Eq. C), XV, 572, p. 308 — Limitations, Stat. of. Watt, Forbes v. do V. Ligertwood (Sc. & Div. App.), IX, 195, p. 88 — Contempt, do , Pearce v. Watts V, Watts (Eq. C), VII, 783, p. 185— Eminent Domain, 643 — Will. Waugh V. Morris (Q. B.), V, 197, p. 91 — Contract, 463 — Ships, etc. Wax Chandlers Co., Attorney-General v. Weaver, Regina v. Webb V. Earle (Eq. C), XV, 487, p. 413 — Public Co. do , Payne v. do , Regina v. do V. Sadler (Chan. App.), V, 636, p. 384 — Power. Webber v. Corbett (Eq. C), VI, 841, p. 553 — Will. TABLE OP OASES REPORTED. 711 Webster, Fisher v. Weeks, Garratt v. do V. Propert (Com. PL), VI, 193, p. 399 — Principal and Agt. Wegaelin v. Cellier (H. of L.), VII, 20, p. 49 — Bill of Lading. do , Peru v. Weise v. Wardle (Eq. C), XI, 766, pp. 368, 364 — Parties. Welch, Regiua v. Weller v. London, Brighton, etc., By. Co. (Com. PI.), VIII, 441, p. 346 — Negligence. Well, Grimoldby v. i do V. Mayor, etc., of Kingston upon Hull (Com. Pi.), XII, 463, p. 232 — Frauds, Stat. of. Wells V. Wells (Eq. C), X, 817, p. 165 — Definitions, 556 — Will. Wemyss v. Hopkins (Q. B.), XIII, 306, p. 137— Criminal Law. West V. Baker (Ex. Div.), XV, 294, p. 39 — Bankruptcy. Westcott, Ex parte (Chan. App.), X, 630, pp. 30, 31 — Bankruptcy, 370 — Partnership. West Cheshire Ry., Green v. Westenberg v. Mortimore (Com. PL), XIII, 325, p. 451 — Security for costs. Western Counties Manure Co. v. Lawes Chem. Manure Co. (Bxch.), X, 391, p. 299— LibeL West India & Pac. S. S. Co., Stewart v. Weston V. Arnold (Chan. App.), VH, 572, p. 305 — Lights, 374— Party Wall. Westwick v. Theodor (Q. B.),XII, 280, p. 14 — Apprentice. Whaite V. Lancashire, etc., Ry. Co. (Exch.), VIII, 513, p. 67 — Carrier, 166 — Definitions . Whalley, Matter of (Eq. C), IX, 868, p. 44 — Bankrup,t.cy do , Regina v. Wheatcraft, Allsopp v. Wheelwright, Guardians of Halifax Un. v. , Wherley, Hogarth v. . Whetham, Dennis v. Whitaker v. Forbes (C. P. Div.), XV, 234 ; affirming 8. C, XIV, 437, p. 278 — Jurisdiction. White, Matter of. Ex parte Westcott (Chan. App.), X, 630, pp. 30, 31 —Bank- ruptcy, 370 — Partnership. do , Ex parte Morley (Chan. App.), VII, 521, p! 37 — Bankruptcy, 213 — Former Adj. White, Baker v. do V. Cordwell (Eq. C), XV, 525, p. 315 — Marriage Settlement, 453, 453 — Set-ofF. do V. Hindley Local Board of Health (Q. B.), XII, 375, p. 348 — Negligence. do V. Jameson (Eq. C), IX, 817, p. 360 — Nuisance. do , Morley v. do V. Regina (Cox's C. C), XV, 353, p. 135 — Criminal Law. do V. White (Eq. C), V, 834, p. 438 — Reformation of Inst. Whitfield v.' Langdale (Chan. Div.), XV, 649, p. 545 — Will. Whittaker, Ex parte (Chan. App.), XIV, 733, p. 315 — Fraud. Whitworth, McKenzie v. 715} TABLE OP OASES EBPOETED.> Whittaker, Pell v. do , Lea v. do , Shepheard v. Whittington, Boote. Whitworth, Matter of, Ex parte Gibbes (Chan. App.), XV, 667, p. 446— Sale. Why te V. Why te (Eq. C), VII, 673, p. 293 — Legacy . Widdop, Regina v. Wietllabach, Davey v. Wight'B Trust, Matter of (Eq. C). VI, 627, p. 331 — Mortgage. Wilby V. Blgee (Com. PL), XIII, 353, p. 307— Limitations, Stat. of. Wilcock's Settlement, Matter of (Chan. Div.), XV, 708, p. 456 — Settlement. do V. Carter (Eq. C), XI, 859, p. 350 — Injunction. Wilde, Ex parte, Daglish, Ex parte (Chan. App.), VII, 563, pp. 310, 311 -Fix- tures, do , Harvey v. Wildes V. Dudlow (Eq. C), XI, 788, p. 308 — Executors, etc., 231 — Frauds, Stat. of. Wildmar, Eegina v. Wilkes, Regina v. Wilkinson, Matter of (Chan. App.), XI, 441, p. 313 — Lunatic, do V. Clements (Chan. App .), 783, p . 480 — Specific Perl do , Peatherstone v. Willan, Colonial Bank v.. WiUiams v. Arkle (H. of L.), XIV, 1, p. 491 — Trusts, 563, 563 — WUl. do ,Biddulph v. do V. Evans (Eq. C), XIII, 490, p. 13 — Appeal, 473 — Specific Pert do V. Great Western Ey. Co. (Com. PI.), IX, 469, p. 354— Negligence, do V. Heales (Com. PI.), VIII, 473, p . 301 — Executors, etc. do Hugo V. do Jones v. , do Rosher v. do V. Williams (Eq. C), V, 844,p.'301 — Executors, etc. v. (Com. PL), X, 345, p. 384 — Landlord and Ten. Williamson, Curtis v. do V. Freer (Com. PI.), X, 335, p . 303 — Libel. do V. Williamson (Chan. App.), X, 700 ; reversing S. C, IX, 649, p. 283— Landlord and Ten. Willis, Radford V. do , Eegina v. Willockv. Noble (H. of L.), XIII, 100; affirming S. C, VII, 373, p. 517 — Will. Wills V. Bourne (Eq. C), VI, 831, p. 553— Will, do V. Wills (Eq. O.), XIII, 843, p. 540 — Will. Wilmot, Ellis v. Wilson, Hill v. do V. Ferrand (Eq. C), I, 734, pp. 391, 393 — Practice, do V. Hodson (Exch.), I, 193, p. .201 — Executors, etc. do V. Johnstone (Eq. C), VII, 617, p. 371 — Partnership. TABLE OF CASES EEPOETED. 713 "Wilson V. Lloyd (Eq. C), VI, 643, pp. 401, 403 — Principal & Sur. do , Mors Le Blanch v. do V. Newbury (Q. B.), 1, 14, p. 379 — Pleading. do V. Northampton By. Co. (Chan. App.), VIU, 866, p. 481 —Specific Perf. do V. O'Leary (Chan. App.). II, 343, pp. 535, 536 — WUl. do , Raine v. do , Regina v. do , Sleeman v. do , Spencer v. do V. Thornbury (Eq . C . ), IX. 641, p. 387 — Practice. do V. Wilson (Prob. & Div.), IV, 663, pp. 171, 174, 176— Divorce, 177 — Domicile. Wilton, Mitchell V. Wilts & Berks Canal Nav. Co. v. Swindon Waterworks ^ Co. (Chan. App.), IX, 546, p . 512 — Water-course . Wimbleton Conservators, etc., v. Dixon (Chan. Div.), XV, 783, p. 178— Ease- ment. Winch V. Conservators of Thames (Com. PL), X, 212; affirming S. C, III, 344, p. 343 — Negligence. Winder, Ex part.e, In re Wintstanley (Chan. Div.), XV, 746, p. 41 —Bank- ruptcy. Winders, Tredegar v. Windross, Middleton v. Winn, Earl Beaachamp v. Winstanley, Matter of (Chan. Div.), XV, 746, p. 41 — Bankruptcy. Winterbotham, Smith v. Wintham, Qt. Northern Ry. Co. v. Wolfe, Waddellv. WoUaston, Regina v. Wolverhampton, etc.. Railway Co. v. London &'N. W. Ry. Co. (Eq. C), VI, 793, pp 474, 475— Specific Perf. do Waterworks Co . , Ward v. Wood's Case (Eq. C), V, 827, p. 437— Public Co. Wood, Matter of (Chan. App.), X, 659, p. 11 — Annuity. do V. Saunders (Chan. App.), XIV, 805, pp. 180, 181 — Easement. do V. Smith (Priv. C), IX, 256, p. 467 — Ships, etc. do V. Woad (Exch.), X, 373, p. 323 — Membership, 432, 423 — Public Co. Woodard, Cobbett v. WoodfaU V. Arbuthnot (Prob. & Div.), VII, 344, p. 199 — Executors, etc. Woodham, Arnold v. WoodhuU, Regina v. Woodhurst, Regina v. Woodman, Watson v. Woodward, Folkestone v. World, Regina v. Worthington v. Curtis (Chan. & Div.), XV, 833, pp.357, 358— Insurance, Life, do V. Jeffries (Com. PI. , XII, 440, p. 404 — Prohibition, Writ of. 90 714 TABLE OF OASES EEPOETED. Wotherspoon v. Carrie (H. of L.), Ill, 39, pp. 251, 253 — Injunction. Wotton, Matter of Goods of (Prob. & Div.), VIII, 636, p. 514— Will. Wright V. London & N. W. Ry. Co. (Q. B.), XIII, 245, p. 346 — Negligence, do V. Midland Ry. Co. (Exch.), V, 333, p. 353 — Negligence, 436 — Rail- way Co. do , Oliphant v. Wrigley, Matter of, Ex parte Reader ( Eq. C), XV, 604, pp. 38, 45 — Bank- ruptcy. Wulff V. Jay (Q. B.), Ill, 398, p. 403 — Principal and Sur. Wyllie, Dapneto v. Wynne, Matter of (Chan. App.), I, 508, p. 311 — Lunatic. Tardley v. Holland (Eq. C), XV, 432, p. 309 — Limitations, Stat, of, 534 — Will. Tates, Regina v. do V. University College (H. of L.), XII, 67; affirming S. C, V, 664, p. 13 — Appeal, 534 — Wil 1 . Teap Cheap Neo v. Ong Cheng Neo (Priv. C), XIII, 207. p. 518 — WiU. Yelverton, Bubb V. ^ Tglesias, Matter of (Chan. App.), XIV, 829, p. 24 — Banks, etc Y'Gurety, Larios v. Toude V. Cloud (Eq. C), XI, 583, p. 501 — Trusts. Toung, Page v. do , Toole V. Zeden, Laing v. Zemindar, Madras Ry. Co. v. Zucco, In re, Ex parte Cooper (Chan. App.), XIV, 755, p. 38 — Bankruptcy. GENERAL INDEX. Abandonment, See Inaurance, Marine, 270, 371 Abatement, Of legacy, 293. Abatement and revivor, Of soita, 1. Abduction, Of infant. 111, 112. <> Abortion, What will sustain conviction, 112. Abstract of title, Sufficiency, 1. Acceptance, Of contract, 88, 89. Accession, See Bankruptcy, 31. Accessory, Who is, 125. Accident, Inevitable, 1. When a defense, 351, 352 Accord and satisfaction, See Compromise, 85. Accounting, Pending appeal, 2 ; inequity, 391. Accretion, Title by, 10. Action, Grounds of, 2, 3 ; against government, 378 Accumulation, Under will, 533. Acknowledgment, Defective jurat, 2. Acquiescence, In infringement, 104 ; in mistake, 327 Ademption, Of legacy, 294. Administration suit, Costa in, 3, 4. Administrators, See Executors, etc., 198. Admiralty, Jurisdiction, 4 ; pleadings in, practice and costs, 6. See Bil. of lading ; Charter party ; Collision ; Ships. Admissions, As evidence, 140, 141, 194. Adulteration of food, Liability for, 7, 8. ^ Adultery, Divorce for, 173, 174. Advancement, What is, 8, 9. Advances, See Charter party. Adverse possession, Easement by, 178 ; title by, 308. AfiSdavit, Not signed, 9. After acquired property. When passes, 31, 315, 455. Agent, See Broker; Criminal law; Injunction; Officer; Principal and agent. Agistment, Liability for negligence, 9. Agreement, See Contract, and the various titles relating to contracts. Air, Easement of, 179 ; protection of, 247. AUen, Bankruptcy of, 25; jurisdiction, 276, 277, 278 ; lunacy, 310. - Alimony, When granted, 10, 176. AUuvion, Title to, 10. Alteration, See Wills. Ambiguity, Evidence to explain, 194. 716 INDEX. Amendment, At trial, 10, 136 ; after verdict, 393. American Notes, Digest of, 570. Ancient lights, Bight to and protection of, 305. Animals, Injuries by, 11; carrier's liability for injury to, 64, 65 ; baiting, 113; diseased, 117 ; negligence causing injury, 340. Annuity, Probable in bankruptcy; out of what payable, 11; when ceases,. 13 ; charged on land, 14 ; bequest of, 533. Answer, See Pleading. Apothecary, Recovery for services, 18. Appeal, To privy council ; waiver ; evidence on, 13 ; questions ; hearing decision, 13. Appearance, Jurisdiction by, 376 ; of lunatic, 311. . Appointment, Transfer of funds, 13 ; power, 383-385 ; exercise of power 318 ; power Under will, 547. Apportionment, Of rents, 13, 14 ; dividends, 14. Apprentice, Dismissal of, 14. Appropriation, By assignment, 17 ; of remittances, 33. Appurtenant, What passes, 101. Arbitration, Agreement for, 14 ; remedy by ; correction of and setting aside award, 15. Arbitrator, Who is; liability of, 16. Architect, Stipulation for submission to, 93, 98. Arrest, Without warrant, 16 ; under warrant, 146. ' Arson, The crime, 113; indictment for, 134; evidence, 138. Assault, The offense, 113, 113 ; master's liability, 338, Assent, See Contract, etc. Assessment, By municipal corporation, 334. Assets, Of bankrupt, 31, 33 ; of partnership, 368. Assignee, Expenses of, 16. Assignment, What is, 16, 17 ; priority, 18. Attachment, Accruing debt, 18 ; for contempt, 87. Attempt, What is, 18, 134. Attestation, Of wills, 514r-516. Attornment, See Landlord and tenant. Attorney, Authority of, 18 ; lieu of, 19 ; liability ; privilege, 30. Auction sale, Eesale, 30 ; withdrawal, 31. Authority, See Principal and agent. Autrefois acquit, See Criminal law. Average, Loss, 368, 369. Avrard, Correction and setting aside, 15. Baggage, Carrier's liability for, 67, 69. Bailment, Liability of bailee, 31, 83, 83. See Carrier; Innkeeper, etc. Banks and banking, Appropriation of remittances, 33; forged indorse- ments, 34. Bankruptcy, Jurisdiction In, 35 ; act of bankruptcy, 36, 38 ; petitioning credi- tor, 38 ; debts and proof, 89, 31 ; what property passes, 31, 37 ; receiver, etc., 37-39 ; protracted transactions, 39-41 ; execution and other liens, 41- 43 ; practice, 43-45. INDEX. m Barratry, Exception of, 48, 49. Bastardy, See Statutes. Belligerents, See Insurance, marine. Benefit society, Rules j rights in funds, 46. Betting and gaming, See Gaming ; Wager. Bigamy, Tlie crime, 114 ; evidence in, 138. Bills and notes, Sealed ; transfer, 46 ; presentment ; discharge of drawer ; of indorsers ; alterations, 47. ; bona fide holder, 53. Bill of lading. Validity, 47 ; construction, 48-49 ; negotiation ; transfer, 50 ; hypothecation ; delivery , 51-53. Bill of review, By infant, 53. Bill of sale, Validity, 53 ; mortgage, 81 ; series of bills, 237. Blank, SeeVS^iU. Board of health. Authority as to nuisances, 358, 359. Bodily harm, Indictment for, 134. Bona fide holder. When protected, 53. Bonds, Negotiability, 54 ; municipal, 55. Booty, See War. Bottomry, Jurisdiction, 55 ; validity of bonds ; priority, 56, 57. Breach of promise. What is, 5R. Bridges, Liability to repair, 58. Broker, Sales by, .58, 59 ; liability, 60, 61 ; commission when earned, 61. Building, Restraint of erection, 63. Burial ground, Different use of, 63 ; gravestones, 63. Burglary, Evidence in, 138. By-laws, Validity, 361. Canal, See Negligence ; Water-course. Cancellation, For fraud, 317 ; for mistake, 415. Carelessness, Criminal, 123 ; liability for, 337. Carrier, Who liable as, 63, 64; liability for injury, etc., 64, 65; contracts for carrying, 65, 66; limitation of liability, 66, 67 ; liability for theft, 67 ; owner's risk, free pass, 68 ; connecting carriers, 69 ; liability as warehou|)3men, delivery, 70 ; refusal to carry, 71. Cemetery,. Use, 63; gravestones, 63. ■ Certiorari, Jurisdiction, 71, 73. Cestui que trust. See Trusts. Cham.perty, What is, 73. Charge, On equitable leaseholds, 73, 73. Charities, Bequest or devise to ; when abates ; lapsed, 73, 74. Charter psurty. The contract, 74 ; limitation ; exceptions, 75 ; stipulations; lump freight, 76 ; demurrage, 77 ; warranty ; condition ; liability for defi- ciency; for unfitness, 78 ; deviation ; delay, 79, 80. Chattel mortgage. Misdescription ; non-registry ; seizure and sale, 81 ; as af- fected by bankruptcy, 33-36 ; validity, 53 ; fixtures, 310. Check, Crossing does not affect negotiability, 81 ; protection against forged indorsement, 34 ; gift of, 331. Children, Custody of, 83 ; disabilities ; rights ; liabilities, 343, 344 ; defini- tion, 163. YIS . INDEX, Church decorations, When illegal, 83. City, See Municipal Corporations ; Ordinance. OodicU, See Wills. Oollision, See Ships, etc. Colonies, See Lex loci. Comity, See Jurisdiction. Commission, Interrogatories, 83. Common carrier, See Carrier. Common, right of, Appurtenant; of vicinage, 83; distress by commoner, 170. Compensation, For what given', 83 ; inj uriea from public improvements, 84, 85. Compromise, When a bar, 85 ; when not a bar ; when void, 86 ; of criminal proceedings, 86, 87 . Concealment, See Fraud ; Guaranty ; Insurance. Condition, In devise, 168 ; legacy, 291. Condonation. Where a bar to divorce, 173. Confession, As evidence, 140, 141. Confirmation, See Power. Conflict of laws. See Lex loci. Consent, When a defense, 137 ; to sale by trustee, 499. Consideration, For contract, 88 ; guaranty, 333. • • Consignor and consignee. See Bill of lading ; Carrier; Insurance, marine. Conspiracy, The offense, 114, 115. Contempt, Jurisdiction ; what is ; attachment for, 87 ; punishment for, 88 ; criminal, 116. Contract, Parties; consideration; acceptance, 88,1 89 ; validity ; mutuality, 89 ; as afEected by public policy ; by statute of frauds ; illegal considera- tion, 90 ; contrary to law ; construction ; description of subject-matter ; optional, 61, 63; penalty; for agency, 93 ; stipulation for arbitration; building contract ; for lease; not to carry on business, 93 ; to act ; to carry on business ; to construct railway, 94 ; to manufacture ; running arrange- ment, 95 ; for service ; sale to arrive, 96 ; time ; warranty, 97 ; repudia- tion ; alteration, 98 ; determination by notice ; rescission, 98, 99 ; to marry, 58 ; by carrier, 65-68 ; as affected by statute of frauds, 230 ; for sale. Contribution, By legatees, 99 ; suit for, 373 ; by stockholders, 434-433. Conversion, What is, 100. Conversion of realty. What amounts to, 100. Conveyance, Description; boundaries; reservation, 101, 103. Copyright, Subject of title, 103 ; proprietorship ; infringement, 103 ; right to dramatize ; acquiescence, 103, 104. Corporation, Powers of directors ; liabilities, 104, 105 ; removal of officer, 105, 106. See Public company. Costs, Who entitled to, 106-109 ; in collision cases, 6 ; attorney's lien for, 20. Counsel, See Attorney ; Notice. Counter-claim, See Set-off. Courts, See Jurisdiction . Court of claims. See Petition of right. Court martial. See Witness . Covenant, Implied ; running with land ; in restraint of trade, 109 ; breach, 110, 111 ; in lease, 281 ; for settlement, 455. INDEX. ?19 Criminal law, Crimes, etc. ; Abduction, 111 ; abortion ; arson ; assault, 118, 113 ; misappropriation by bailee ; baiting arrivals, 113 ; bigamy ; conspir- acy, 114, 115; contempt; continuing offense, 116; conversion by agent; having diseased animal ; embezzlement, 117-119; escape; fabricating voting paper ; false pretenses, 119-121 ; false record ; forgery, 121 ; fraudulent removal ; gaming, 122 ; homicide, 123, 124 ; accessory ; joint liability ; indecency, 125 ; larceny, 125-130 ; libel, 180 ; malicious mischief ; nuisance, 130, 131; perjury, 131, 132: resisting officer; sale of liquor; Sunday, violation of ; threatening ; unlawful wounding, 133, 134 : indict- ment, 134-186 ; defenses, 136-188 ; evidencejn particular cases, 138, 189 ; admissions, confessions, declarations, 140-144 ; depositions, documents, 142-144 ; res gestae, corroboration, refreshing memory, 144, 145 ; witness, 146 ; practice, 146-151. Cruelty, As grounc of divorce, 172. Curtesy, See Estoppel. Custody of children. See Parent and child. Custom, As to bills of lading, 151 ; other contracts ; as to reversion, 152 ; easement by, 177 ; evidence of, 192. Customs, Forfeiture, 153. Damages, iNatural consequences, 153, 154 ; in particular cases, 154, 155 ; liquidated, 155, 156 ; non-performance, 156-158 ; negligence, 158, 159 ; non-delivery, 159, 160 ; trespass, 160, 161. Damage feasant, Distress for, 170. Death, Damages for causing, .158, 159 ; evidence of, 191, 196. Declaration, As evidence of , 141, 194; pleading, 379. Deed, Validity, 2, 161 ; construction, 101, 233. Defense, When available as, 161-163. Definitions, Various w'ords and phrases, 163-167. Delivery, See Bill of lading ; Carrier ; Sale. Demand, See Landlord and tenant . Demurrage, Stipulations as to, 77 ; liability for, 462. Demurrer, Pleading, 380. Deposition, Commission, 83 ; admissibility, 142. Descent, See Election. Desertion, As ground for divorce, 172. Devise, Charged with debts ; conditional, 168 ; forfeited, 169. See Trusts ; Will. Digest of American Notes, 570 Directors, See Public company. Discbarge, See Bankruptcy ; Principal and surety. Discontinuance, Proceedings for taking land, 186. Discovery, When compelled, 169 ; practice, 387, 388. Discretion, See Public company ; Trusts. Distance, Measurement of, 93. Distress, By commoner ; on joint property ; power of, 170 ; after commence- ment of banruptcy proceedings, 45 ; who may distrain, 285 ; against whom ; excessive ; when bars action, 286. 729 INDEX. Distribution, Per stirpes ; conversion into personalty, 170, 171 Divorce, Jurisdiction; second suit; foreign, 171 ; grounds for, 172, 173 ; con- donation, 173, 174 : when refused ; excuse for delay ; practice, 174-176 ; alimony, 10. Domicile, How determined, 176, 177. Donatio causa mortis, See Gift, 231 ." Draft, See Bills and notes . Drains, See Negligence ; Nuisance. DureBS, Avoiding for; Recovery back, 177. Dying declarations, As evidence, 141 . Easement, Way, by contract ; by custom ; by user, 177, 178 ; eavesdrip, 178 ; light ; right of enjoyment, 179, 180 . Eaves, Eight of drip, 178. mectment, Notice to quit ; mesne profits, 181 ; stay, 182. Elections, Votes for ineligible person, 182 ; of company officers, 405. Election, Of debtor ; of remedy ; between benefits, 183-185. Embezzlement, The crime, 117-119. Eminent domain, Extent of power ; taking when complete ; compensation, 185 ; discontinuance, 186. Equity, Jurisdiction, 186, 187 ; restraining action, 187 ; protection of infants, 244 ; injunctions, 244-254 ; accounting by parties, 371-373. Equitable mortgage. What is, 310. Erasure, See Will. Error, writ of, Sealing, 187. Escape, What is, 119. Escrow, Condition of delivery, 188. Estate tail, Disentailing, 188. See Will. Estoppel, What operates as, 188-190 ; former adjudication, 212-214. Evidence, Presumptions, 190, 191 ■; documentary, 191 ; best evidence ; com- petency, 192-194 ; admissions ; declaratiors ; parol evidence, 194, 195 ; burden of proof, 195-197 ; in criminal cases, 138-146. Excise, What houses require license ; disqualification for, 197 ; unlawful sale of liquor, 133. Execution, Private sale ; what leviable, 198. Executors and administrators, Who may be executor ; appointment of ad- ministrator, 198-200 ; foreign ; retraction of renunciation ; executor de son tort, 200 ; liability of ; assets, who entitled ; priority of claims ; pay- ment of debts, etc., 201, 202 ; distribution ; disputed claims ; indemnity to executors, 202 ; powers, 202, 203 ; right of retainer ; accounting, 203 ; actions, 204. Extinguishment, Henewal note retains security, 204. Extradition, Statutes when apply, 205 ; preliminary inquiry ; statutory re- strictions, 206. Factor, Sale by, 207. Factory, What is, 207. False imprisonment, Who liable for, 207. False pretenses, What are, 119-121. INDEX. 731 False record, What is, 121. False return, Sh.erifE'3 liability for, 458. Fences, Obligation to maintain 308 ; of railway company, 340, 435. Fines and recoveries, Protectors, 209. Fire insurance. See Insurance, fire. Fishery, Rights of, 209. Fixtures, Looms, 209 ; assignment of ; mortgage of, 219 ; when pass by mortgage ; removal, 211. Food, adulteration of, See Adulteration of food. Foreclosure, See Mortgage. Foreign attachment, Validity, 212. Foreign contract. By what law governed, 298. Foreign executors, Rights of, 200. Foreign courts, Jurisdiction, 277, 298. Foreign government, Jurisdiction over, 277. 00/ Foreign judgment, When binding, 276-277. ^ Foreign law. When governs, 295, 299. Forfeiture, Non-payment of customs, 153 ; of lease, 284 ; of legacy, 291. Forgery, The crime, 121 ; indictment, 135 ; evidence, 138. Former adjudication, Who bound by, 212, 213 ; as to what conclusive, 213, 214 ; plea of, 137. Fraud, What amounts to, 214r-216 ; relief against, 216-220 ; fraudulent con- veyance, 26 ; fraudulent preference, 27 ; by married woman, 239 ; by direct- ors, 407 Frauds, statute of. To what contracts applies, 220-222 ; memorandum, 223- 226 ; part performance ; defense, 226. Fraudulent conveyances, What are, 26, 226, 227. Freight, See Bill of lading ; Charter party ; Insurance. Fright, Conspiracy to frighten, 115 ; consent through, 137. Fugitive from justice, Extradition of, 205. Future estate, Deed of, 161 . Gaming, Using place for, 122, 228. Garnishment, Priority, 328. Gas company, Negligence by, 338. General average, Who entitled to, 229 ; provision for in insurance policy, 269. Gift, Conditional ; not accepted, 229 ; when incomplete ; how perfected, 230 ; placing to credit ; transfer of interest ; of stock ; mortis causa, 231, 232. Goodwill, Right of vendor, 232. Government, Breach of contract, 232. Grant, Of warrant, 233. Guaranty, Validity ; illegal preference, 233 ; continuing ; when determined, 234 ; as affected by statute of frauds, 220 ; surety when discharged, 401. Guardian and ward, Testamentary, 235. Habeas corpus. Second arrest, 235. Hearsay, See Evidence ; Will. Highway, Eight to deviate, 235 ; laying gas pipes unde^ ; willful obstruc- tion, 236. 91 732 INDEX. Homicide, The crime, 133, 134. Hotchpot, See Legacy; Will. Husband and wife. Husband's rights ; wife's equities, 336 ; wife's separate property, 337; bank deposit; money loaned; conveyance of, 338; post- nuptial contract as to ; liability, 340, 341 ; coercion ; joint actions ; separa- tion deed, 341, 343 ; marriage articles, 314 ; settlement, 815. Idiot, See Lunatic. Illegitimate children^ See Will. Indecent exposure. The offense, 135. Indemnity, Who entitled to; implied contract for, 343, 343; principal's liability to agent, 398 ; to surety, 404. Indictment, Form and substance, 134-136. Infant, Avoidance by ; maintenance, 343 ; right to possession ; liability ; title of laud ; laches, 344 ; custody and education, 363 Injunction, To restrain action at law, 344 ; action in chancery, 345 ; advertis- ing ; breach of contract, 345 ; infringement of copyright ; criminal pro- ceedings ; deposit of earth ; diversion of water ; inequitable use ; laying pipes under highway, 346 ; libel ; obstruction of light, 347, 848 ; nuisance, 349, 350 ; obstruction of stream ; infringement of patent ; probate pro- ceedings, 349 ; publishing registry ; running trains ; sale by trustees ; supplying gas, 350; threatening circulars; threatened injury; trade- mark, infringement of, 351 ; transgression of powers, 353 ; continuing trespass ; use contrary to lease ; violation of legal rights ; working mines. 353 ; when denied , temporary, 354. Innkeeper, Who liable as ; lien of, 354. Insanity, Is sickness, 46 ; inquiry as to, 379 ; maintenance, etc., 310. Insolvency, See Bankruptcy ; Will. Insurance company. Dissolution, etc., 355. Insurance, fire. Validity of policies and rights of parties, 355, 356. Insurance, life. Validity of policy ; mortgage of ; title to policy money, 357. Insturance, marine, The contract, 358 ; insurable interest, 359-361 ; represen- tations and warranties, 361, 363 ; concealment and misrepresentations, 863-364 ; deviation ;, detention ; illegal voyage, 864, 865 ; risk when attaches ; extent of, 365-367 ; losses ; average, 368-870 ; sale ; abandon- ment, 870-373 ; actions, 373-373. Intent, See Criminal law. Interest, On balance of account; on "ecurity, 374; as damages, 155; on ac- counting by partners, 371 ; on redemption, 437. International law. See Jurisdiction. Internal revenue. See Customs ; Revenue. Interpleader, Practice, 374, 875. Intestacy, See Executors, etc. ; Will. Intoxication, Effect upon contract, 89. Joint liability. For negligence, 375 ; of partners, 868. Joint owners. See Negligence . Joint stock company,. See Public company. Joint tenancy, See Will. INDEX. 723 Judgment, In criminal cases, 149 ; former, who bound by, 213. Judicial sale, Opening for mistake, 275. Jurisdiction, Defects in ; acts of State, 375 ; how obtained ; of various courts, 876, 277 ; of foreign government, body or party, or foreign party ; of different actions, 377-279 ; in admiralty, 4 ; in bankruptcy, 35 ; of con- tempt, 87 ; in criminal law, 146 ; of foreign contracts, etc., 395. Laches, Effect of, 380. Iiandlord and tenant. Admission of tenant, 380 ; tenant's estate ; obligations of landlord, 381 ; covenants of lease, 381-383 ; right of re-entry ; notice to repair ; forfeiture, 284, 385 ; distress, 385, 386 ; notice to quit ; laud- lord's remedies, 387, 388 ; tenant's remedies, and liabilities, 288, 289 ; land- lord's lien, 390 ; lease of mines, 334-338. Larceny, What is, 135-139. Lease, See Landlord and tenant. Legacy,. What passes ; specific, 390; conditional, 391 ; who entitled, 393 ; sub- stitutional ; charged on real estate : abatement ; repending ; hotchpot, 393 ; ademption; deduction, 294; interest on ; lapsing, 395. Legal representatives. See Definitions ; Will. Letters, Contract by, 88 ; as memorandum of contract, 234. Lex loci, and lex fori, Contracts by what law governed, 395-299. Libel, What amounts to, 299-300; what privileged, 300-302 ; j urisdiction ; pleadings, 303 ; as a criminal offense, 130; enjoining, 247. License, Revocation, 303; under excise law, 197. Lien, On bailment, 303 ; on cargo ; on ship ; on securities, 304 ; of attorney, 19 ; of bankruptcy, 31-37 ; of innkeeper, 354 ; of mortgage, 330 ; of vendor, 445. Life estate. See Tenant for life ; Will. Xjight, Right to, how acquired ; how protected, 179, 305. Limitations, statute of, Construction of ; as applied in equity, 306 ; acknowl- 1 edgment ; new promise, 807 ; part payment ; title when acquired, 308 ; trusts ; unad ministered estate, 309. Liquidated damages. What are, 155, 156. , Liquors, sale of. To constable, 133 ; license for, 197. Lord's day, See Sunday. Lunacy, Inquisition, 310. Lunatic, Maintenance, 810 ; appearance ; contract by committee ; action by next friend, 311, 313 ; protection by court ; settlement by, 313. Maintenance, See Infant ; Lunatic. Malice, See Criminal law. Malicious prosecution. Pleading, 318. Mandamus, Restoration to membership, 333. Manslaughter, What is, 123. Marine insurance, See Insurance, marine. Marriage, What amounts to, 313 ; how established, 314. Marriage articles, Construction, 314. Marriage settlement. Wife's equity for; covenant to settle, 315; construc- tion ; election, 316 ; surviving children, 817, 318 ; alteration of ; divorce, effect of ; appointment, 318, 319. 734 INDEX. Marshaling assets, When proper, 319. Master and servant, Contract to employ, 319 ; forfeiture of wages ; master's right of action'; liability, 330-323 ; servant's liability, 833. Membership, Restoration to, 323. Mesne profits, Recovery of, 181. Minerals, China clay, 323. Mines, Reservation of, 323 ; lease of, and rights under, 334-338. Misappropriation, By bailee, 113 ; by clerk, etc., 117. Misdemeanor, What is. 111, etc. Misrepresentations, Effect of, 215, 257, 264. Mistake, Relief against, 327 ; immaterial, 358 ; reformation, 438. Money had and received. When action lies, 328. Money paid, etc.. Recovery back, 328, 339. Mortgage, What is, 339 ; by expectant heir , equitable ; what included, 330 ; what secured by ; priority, 331-333 ; devise subject to ; mortgagee's right to rent ; dismissal of bill for redemption, 334 ; of chattels, 81 ; of fixtures, 209-211 ; who affected by notice, 356. Municipal corporation. Street improvements, 334; dangerous buildings; seal, 335 ; liability for injuries by public improvements, 84. Murder, The crime, 123. Navigable river, Obstruction of, 336 ; rights of riparian owner, 443. Navigation, See Ships, etc. Necessity, Definition, 336. Ne exeat. Writ when allowed, 336. Negligence, What is ground of action, 387-350 ; defenses to action for, 850, 351 ; liability as between two companies, 351, 853 ; question for jury, 353 ; damages, 354. Negotiable instrument. What is, 855 . Ne'w trial. Grounds for, 355. i Next friend. See Lunatic. Notes, American, Digest of, 570. Notice, Effect of, 356-358 Notice to quitj See Landlord and tenant.. Nuisancej What is, 358, 859 ; action for, 359 ; practice, restraint of, 360. Obscene publications, What are, 860. Officer, Personal liability ; sale by, 861 . Ordinances, Imposing penalty, 861 . Oysters, See Fishery. Parent and child, Custody of, 363, 363. Parol evidence, See Criminal law ; Evidence Parties, To suits, 368, 364. Partition, Parties ; practice, 364, 365. Partnership, What constitutes, 865, 366 ; at will, 366 ; executors, not liable as, 367 ; property ; liability, 368, 369 ; survivor , dissolution ; termination by notice ; rights after dissolution, 370 ; rights of executors ; accounting, 371-373 ; winding up, 373. INDEX. 735 Party wall, What includes, 373. Patent, Granting, 374 ; validity, infringement ; practice, 375. ' Pauper, Who liable to support ; maintenance, 376. Payment, What is, 376 ; to husband; application of, 377. Podldlor, Who is, 378. Penalty, See Contract ; Statutes. Pencil writing, See Will. Performance, See Contract ; Sale; Specific performance. Pei^ury, The crime, 131, 133. Perpetuities, See Will. Personalty, Conversion to, 100, 378. Petition of right. When will lie, 378. Pilots, See Ships, etc. Piracy, The crime, 182, 305. Pleading, Declarations ; admissions by ; answer ; pleas, 379 ; replication ; demurrer ; construction, 380 ; foreign pleadings ; amendment, 381. Pledge, By bankrupt ; by executrix ; redemption, 381 ; of bill of lading, 50, 51; by factor, 207. PoTurer, Of appointment, 383 ; exercise of, 383, 384 ; effect of ; confirmation ; lapse ; failure, 385 . Practice, Suing by next friend ; service, 386 ; appearance ; forma pauperis ; change of place of trial ; discovery, 387-390; question for jury; issue out of chancery ; accounting ; stay, 390-393 ; interlocutory orders ; amend- ment ; motion after abatement, 393 ; dismissal; argument on appeal ; tak- ing from files ; costs, 393-394. Precatory trusts, See Trusts ; WilJ. Preferred stock. See Public company. Prescription, Easement by, 178 . Presumption, As evidence, 190. Principal and agent, Authority, 394 ; principal when bound, 394-396 ; princi- pal when liable, 396-399 ; agent's liability, 399-401 ; broker, 58 ; factor, 307 ; servant, 319-323 ; notice to agent, 356. Principal and surety; Guaranty, 333 ; surety when discharged, 401-403 ; right to reimbursement, 404. Prison breach; What is, 119. i Privileged commimication; What is, 300-303. Probate; See Will. Promissory notes; See Bills and notes ; Principal and surety. Public company, Organization and powers, 405 ; directors' duties and liabil- ities, 406-411; shares and stock, 411-416 ; contracts, 416-431 ; actions by and against, 431-432 ; winding up ; contribution, 423-433. Public officer. See OflScer. Public place; Permitting gaming in, 133. Purchaser, See Vendor and purchaser. Railway company, Contracts of, 434 ; charges for services; acquiring ld,nd; surperfluous land, 434 ; fences ; crossings, 435 ; liabilities of connecting companies, 436 ; liabilities as carriers, 63-71 ; exercise of right of eminent domain, 185 ; liability for negligence, 337-353. 736 INDEX. Rape, See Crimiual law. Ratification, See Municipal corporation ; Power. Real estate. See Conversion into personalty ; Executors, etc. ; Will. Receiver, Appointment ; title, 436 ; discharge, 437. Redemption, From mortgage, 437 ; dismissal of bill for, 438 ; of pledge, 881. Reformation of instruments. When decreed, 438-440. Release, See Bankruptcy ; Principal and surety. Religious meetings, disturbance of, 440. Remainder, See Tenant for life ; Will. Renewal note, Security, 440 . Rents, Action for, 440; apportionment, 44L Res adjudioata, See Former adjudication. Rescission, See Contract ; Sale. Reservation, See Conveyance ; Mines. Res gestae, As evidence, 144. Residence, Voter, 441 ; domicile, 176. Restitution, Order in criminal proceedings, 150. Restraint of marriage, Condition, 441. Revenue, Coal dues, 441 ; customs, 153. Reversion, See Will. Revivor, See Abatement and revivor. Revocation, See Will. Right, Petition of.. See Petition of right. Riparian owner, Rights of, 442. Rivers, See Navigable river ; Water-course. Robbery, At Sea, 133. Sale, Construction of contract, 442 ; title when passes, 443, 444 ; vendor's lien ; stoppage in transitu, 445 ; rescission, 446-449 ; excuse for non-delivery, 449, 450 ; memorandum of sale, 323. Salvage, See Ships, etc. Sea-shore, Title to, 450, 451 ; right of fishery, 209. Seal, See Municipal corporation. Security for costs, Order for, 451. Seduction, Loss of service by, 451. Selling liquors. See Criminal law. Separation deed. Annuity, provision for, 451. Set-oflf, What allowed, 453^55. Settled estatps, Improvement of, 455. Settlement, Covenant for, 455 ; validity, 466 ; construction ; succession under, 457 ; false recital ; mistake ; revocation, 458 ; marriage seetlement, 315-319. Sew^ers, See Negligence ; Nuisance. Sheriff, Liability for false return, 458, 459. Ships and shipping, Tonnage, 459 ; master, powers of, 460 ; freight, 451 ; de- murrage, 463 ; collision, 463-467 ; pilots and pilotage, 467 ; salvage, 468- 471 ; average, 471 ; artions, 4 : bills of lading, 47 ; bottomry contracts, 55 ; liability as carriers, 63 ; charter party, 74. * Slander, What actionable, 471. Smuggling, See Customs. INDEX. nil Sodomy. See Criminal law. Soldiers, See Wills. Specific legacy. See Legacy ; Wills. Specific performance. Discretionary; in what cases decreed, 472-474; when barred, 474-476 ; when not decreed, 476-479 ; the decree, 479-481. Statutes, Construction, 481-483 ; repeal, effect of, 483, Statute of frauds. See Frauds, Stat. of. Statute of limitations, See Limitations, Stat. of. Stay, See Practice. Stipulation, How enforced, 483. Stock, See Broker ; Public company. Will. Stockholders, See Public company. Stoppage in transitu. When allowed, 445. Street, See Highway. Subrogation, Right of surety, 404. Subscribing witness. See Will. Succession duty, As affected by domicile, 484. Sunday, Keeping open place of amusement, 484. Support, See Covenant ; Mines ; Negligence ; Pauper . . Surety, See Carrier ; Principal and surety. Survivor, See Executors, etc. ; Marriage settlement ; Partnership ; Will. Taxation, Liability to, 485 ; municipal assessments, 344. Tenant in common. Rights and remedies, 485, 486 ; distress by, 170 ; devise to, 566. ' Tenant by curtesy. See Estoppel . Tenant for life, Lien, 486 ; restraint of anticipation ; liability for costs, 487. Tender, See Sale ; Vendor and vendee. Testamentary guardian. Appointment, 335. Theft, See Criminal law ; Ships, etc. Threats, See Criminal law ; Injunction. Timber, Right to, 487, 488. Toll, See Turnpike. Tombstone, See Burial ground. Tort, See Carrier; Former adj udication ; Trespass. Trade-mark, What is, 488 ; right when lost ; infringement, 489 ; restraint of, 251. Trades-Unions, See Criminal law. Trespass Action for, 489, 490. Trial, See Criminal law ; Practice. Trick, See Criminal law. Trover, Who liable in, 490, 491. Trusts and trustees. How trust created; where implied, 491 ; resulting; trustee, who liable as. 492 ; new trustee, appointment of, 493 ; succession ; con- struction of trust, 494; duties of trustee, 495, 496 ; breach of trust, 496, 497 , purchase by trustee, 498 ; sales by ; payment to ; personal liability of trustee, 499-501 ; right to indemnity, 501 ; accounting by, 502, 503. See Partnership ; Power; Will. 728 , IJ^DEX. Trustees of corporation, See Public company. Turnpike, Evasion of toll, 503 ; exemption, 504. Undue influence, As affecting wills, 519. Ultra vires, See Public company. Usage, See Bankruptcy ; Contract ; Custom . Variance, See Criminal law ; Pleading ; Practice. Vendor and purchaser, Rigbta of assignee ; of hormflde purchaser from trus- tee, 504 ; vendor's right to rescind, 505, 506 ; purchaser's rights, 506-508 ; deposit, right to, 508, 509 ; remedies, 509, 510. See Contract ; Specific performance. Venue, See Criminal law ; Jurisdiction . Vessels, See Ships and shipping. Vis meyor. See Insurance, marine. Voluntary settlement. What is, 510. Wager, Contract for, when void, 510. Waiver, See Appeal ; Appearance ; Landlord and tenant. War, Jurisdiction as to booty, 510. Warehouseman, See Carrier; Factor. Warrant of attorney, Effect of, 511. Warranty, See Charter party ; Covenant ; Insurance , Sale. Waste, Action for; what is, 511, 513 ; injunction against, 253. Water-course, Right to use ; diversion, 512 ; obstruction, 513. See Negli- gence ; Riparian Owners . Water tax, How apportioned, 513. Way, See Covenants ; Deeds ; Easement. Widow, See Dower; Election; Wills. Wills, Execution and attestation, 514-51,6 ; validity, 517-520 ; alteration, 520, 521 ; revocation, 521-524 ; probate, 534-539 ; construction of terms, 539- 530 ; by what law governed ; appointment of executor ; legacy when ab- solute, 531 ; annuity, 533 ; accumulations, 538 ; conditional legacy 534 ; provisos, 535 ; repugnant legacies ;' specific ; shifting, 536 ; charitable ; per capita ; per stirpes ; to class, 537, 538 ; gift over, 538-541 ; abatement of legacy, 541 ; ademption, 543 ; when annuity ceases ; when legacy lapses, 548 ; what passes by terms used, 544-547 ; power of appointment, 547 ; charging estate, 548, 549 ; election, putting wid^w to ; peculiar limita- tions, 549; cross limitations, 550; perpetuities; release of covenant; re- vocation of settlement ; marshaling assets, 551-553 ; hotchpot ; legatee, who intended, 553-557, survivorship; creating trusts, 558-562 ; quantum of estate devised, 563-566 ; cross remainders, 566'; vested remainder ; vested interest, 567 ; 568. Witness. Who may be ; examination; privilege, 569.