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DIGEST OF THE ENGLISH LAW REPORTS FOR AUGUST, SEPTEMBER, AND OCTOBER, 1873.
Abandonment. — See Charter-party, 2. Accessories. — See Extradition. Action. — See Contract, 8; Principal And Agent, 2; Rent-charge; Theatrical Engagement. Advance Against Freight. — See Charter-party, 3.
Affidavit Of Documents. Where a bill was filed by the Republic of Liberia, the plaintiffs were ordered to file the usual affidavit, stating what documents, if any, they had relating to the matters in question. — Republic of Liberia v. Imperial Bayik, L. R. 16 Eq. 179.
Agreement. — See Contract.
A husband who had been separated from his wife for many years had covenanted to pay, and had paid, a small annuity to his wife. The husband instituted a divorce suit against his wife because of her adultery, and the wife petitioned for alimony because of her husband's fortune having largely increased since said covenant to pay an annuity. No alimony was allowed. — Powel v. Powel, L. R. 8 P. & D. 55.
Alternative Contract. — See Damages, 2.
The defendants by their negligence caused the death of R., who was under covenant to pay the plaintiff an annuity of £200 during their joint lives. An "accountant," acquainted with the business of life insurance, after referring to the " Carlisle Tables," testified as to the value of an annuity of £200 for the life of two persons of the respective ages of R. and the plaintiff. The judge instructed the jury that they might calculate the damages which the plaintiff was entitled to recover, by ascertaining the sum of money which would purchase an annuity of £200 for a person of the plaintiff's age, according to the average duration of human life. Held, that said witness was competent, though not an actuary; but that as the plaintiff had lost an annuity for the joint lives of herself and R., and as an annuity upon the plaintiff's life only would be of greater value, said instructions were erroneous.—Rowley v. London and North Western Railway Co., L. R. 8 Ex. (Ex. Ch.) 221.
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Two parties, between whom (here was great hostility, left certain matters in dispute to two arbitrators, who were to select a third. During the arbitration one of the parties lunched at h expense the arbitrator whom he had appointed the third arbitrator, his solicitor, a short-hand reporter, and himself. Held, that said lunch furnished no ground for setting aside the award. The two arbitrators first appointed erroneously appointed a third as umpire, but, after the mistake was discovered, appointed a third arbitrator, and began proceedings de novo, and the parties to the submission agreed not to impugn the award. Held, that any irregularities in the proceedings were waived by beginning de novo and by said agreement. — Mosdy v. Simpson, L. R. 16 Eq. 226.
Assignee. — See Eent-charge.
1. A. assigned a patent to B., in consideration of B. paying royalties to A. B. at the same time advanced A. money, upon the agreement that B. should repay himself by retaining one-half the royalties, and, in case of A.'s bankruptcy, should retain the whole of the royalties. B. became bankrupt. Held, that B. had a lien upon one-half said royalties; but that the agreement as to retaining the whole of said royalties was a fraud upon the bankrupt laws, and void. — Ex parte Mackay; Ex parte Brown. In re Jeavons, L. R. 8 Ch. 643.
2. The holder of a bill upon which an insolvent debtor was liable signed a creditor's deed for the amount of the bill, but in the interval between signing and the formal proof, received payments on the bill from other parties liable thereon. The trustee of the debtor paid a dividend upon the whole amount of the bill. Held, that, considering the uncertainty of the law at the time, the trustee should not be charged for the over payment made in misapprehension of the state of the law. — Ex parte Ogle. In re Pilling, L. R. 8 Ch. 711.
8. A creditor of an insolvent debtor sold his debt for 10*. in the pound to T., a brother-in-law of the debtor, and subsequently, at a meeting of creditors, voted at the request of T. for a composition of 2*. 6d. in the pound. Held, that as said creditor's vote was clearly in the interest of the debtor and not of the creditors, the composition, which was carried by said vote, must be set aside. — Ex parte Cobb. In re Sedley, L. R. 8 Ch. 727.
See Damages, 1; Extradition; Trust, 2.
Bequest. — See Devise; Legacy; Vested Interest; Will.
Bills And Notes.
1. An incorporated company sold to M. an instrument under the seal of the company, and countersigned by two directors and the secretary. The instrument was headed with the name of the company, was called a debenture, was numbered, and promised to pay the bearer, subject to the printed conditions indorsed thereon, £100 on May 1, 1872, or on any day on which the bond was entitled to be redeemed, according to said conditions. By said conditions a certain number of indentures were to be drawn periodically and paid off. M.'s indenture was stolen, and purchased in good faith by the plaintiff. The company, having notice of the robbery, refused to pay the indenture. It was admitted that such instruments were in practice treated as negotiable. Held, that the conditions of said instrument prevented it being a promissory note; also, that by contracting to pay the bearer the company could not render the title of the owner liable to be divested by theft and sale to a bona fide purchaser; and that the alleged custom could not annex such an incident to the contract . Whether an instrument under the seal of a corporation can be a promissory note, qucere. — Crouch v. Credit Foncier of England, L. R. 8 Q. B. 871.
2. W. and B. were in partnership as attorneys. B., without authority from W., drew a bill, in a private transaction, upon the defendant in the firm name, and in the firm name indorsed it to the plaintiff for value. The defendant accepted the bill, which was dishonored at maturity. Held, that the defendant was not estopped from denying that the bill had been indorsed by said firm. — Garland v. Jacomb, L. R. 8 Ex. (Ex. Ch.) 216.
See Bankruptcy, 2; Damages, 2; Trust, 2.
Interest upon suitors' moneys held by the chief clerk to the Court of Queen's Bench was held to belong to the crown, for the benefit of the public. — Colchester v. Law, L. R. 16 Eq. 253.
* Bottomry Bond.
For a case where a bottomry bond for advances to repair the ship, given upon ship, freight, and cargo, was set aside as against the cargo, because of insufficient communication from the master or the agents of the owners of the vessel with the owners of the cargo, and because the prospect of benefit to the cargo from repairing the ship was not such as to justify giving the above bond on the cargo, see The Onward, L. R. 4 Ad. & Ec. 88.
The plaintiffs, brokers in the London Stock Exchange, bought stocks for the defendant for the loth of July, and on that day, by the defendant's instructions, carried them over to July 29th, the next account day, paying differences amountmg to £1688. On the 18th of July the plaintiffs, being unable to meet their engagements, by reason of the defendant's and others' failing to make their due payments, were declared defaulters, and according to the rules of the Stock Exchange all their transactions were closed at the prices current on that day. The result of this was to make the plaintiffs liable to pay further differences on the stocks carried over for the defendant. Held, that the plaintiffs were not entitled to recover any thing beyond said £1688, as the defendant was not liable for the plaintiffs' losses caused by their own insolvency. — Duncan v. Hill, L. R. 8 Ex. (Ex. Ch.) 242; 8. c. L. R. 6 Ex. 255; 6 Am. Law Rev. 98.
Burden Of Proof. — See Divorce.
1. Declaration on a charter-party between the plaintiff and the owners of the C, " expected to be at Alexandria about 15th of December," alleging that the C. was not expected to be at Alexandria about the 15th December, but was in such part of the world and under such engagements that she could not be at Alexandria about the said day. Demurrer, and plea that the plaintiff knew the voyage the C. was on, and that said charter-party was made subject to the condition that the C. should fulfil her engagements and then proceed to Alexandria. Demurrer to the plea. Held, that the above-quoted words amounted to a warranty that the vessel was in such a position that she might reasonably be expected to be at Alexandria about the 15th December; but that said plea was a good one. Judgment for plaintiff on demurrer to the declaration, and for the defendant on demurrer to the p'ea. — Corkling v. Money, L. R. 8 C. P. 895.
2. On the 22d November, 1871, the plaintiff entered into a charter-party with R., by which the vessel was to proceed from Liverpool to Newport, and there ship a cargo of iron rails for San Francisco, ordinary perils excepted, &c. On the 9th December, the plaintiff effected insurance with the defendants " on chartered freight valued at £2900 at and from Liverpool to Newport in tow, .while there, and thence to San Francisco," &c. The ship sailed Jan. 2, 1872, and on Jan. 4 took the rocks before arriving at Newport. On Feb. 18 she was got into a place of safety, and was got off the rocks March 21. On Aug. 16, 1872, the time of the trial, the vessel was still under repair. Due notice of abandonment was given, but was not accepted. On the 16th February, 1872, R chartered, without the consent of the plaintiff, another ship, by which he forwarded the rails to San Francisco. The jury found that the time necessary for getting the ship off and repairing her was so long as to make it unreasonable for the charterers to supply the agreed cargo at the end of such time; and that such time was so long as to put an end, in a commercial sense, to the commercial speculation entered upon by the ship-owner and charterer. Held (by Keating and Brett, J.T., Bovtll, C. J., dissenting), that the charterer was absolved from his contract, and that therefore the plaintiff could recover the insurance on freight from the defendant. —Jackson v. Union Marine Insurance Co., L. R. 8 C. P. 572.
8. The charterers of a vessel were bound by the charter-party to the following obligation: "Sufficient cash for ship's ordinary disbursements to be advanced the master against freight, subject to interest, insurance, and commission, and
the master to indorse the amount so advanced upon his bills of lading." The
Class. — See Vested Interest.
The corporation of Colchester had from time immemorial exercised an exclusive right of pasturage in certain lands round the walls of the town for commonable animals, levant and couchant within the borough. The corporation, from the time of Henry VIII., exercised the right of releasing their rights of pasturage over certain of said lands, without resistance to the exercise of their rights over the remainder. On the question whether the said right of pasturage was destroyed by release as above, held, that as a legal origin is, if possible, to be assumed for a long-established practice, it must be presumed that the corporation was entitled to an exclusive right of pasturage over said lands, although in the releases of this right it had .been referred to as a right of common. —Johnson v. Barnes, L. R. 8 C. P. (Ex. Ch.) 527; s. c. L. R. 7 C. P. 592; 7 Am. Law Rev. 469.
Common Carrier. — See Negligence.
1. In the act of incorporation of a company, it was provided that no share should vest in any person accepting the same until one-fifth of the amount of such share was paid. M. agreed to take twenty-five shares, and subsequently transferred them without having paid any thing on them, and the transfer was duly registered. Held, that said transfer operated as a new contract between M., the transferee, and the company, and that M. was discharged from his contract to take said shares. —Morton's Case, L. R. 16 Eq. 104.
2. A company sold its business and property to a corporation, which agreed to pay the company's debts. The corporation was unsuccessful in its business, and the company was obliged to pay a debt of £7000 which the corporation failed to pay. The corporation's only assets were certain shipbuilding property, which, though valuable, would have brought but little on a forced sale. A majority of the creditors of the corporation, other than the company, were willing to accept is. in the pound. Accordingly an agreement was entered into between the company and the corporation, whereby the latter transferred its said assets to the company, which agreed to pay the corporation's creditors is. in the pound. The Vice-Chancellor made an order sanctioning this agreement, and directed that the shareholders in the company who did not assent to the agreement should have the value of their interests ascertained, and, upon being paid such value by the liquidator of the company, should surrender to him all their interests in the company. Order affirmed on appeal. — In re Marine Investment Co. Ex parte Poole's Executors, L. R. 8 Ch. 702.
3. The directors of a company which had exhausted its borrowing powers