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DIGEST OF THE ENGLISH LAW REPORTS FOR NO
VEMBER AND DECEMBER, 1873, AND JANUARY, 1874.
ACCUMULATION. — See APPOINTMENT, 2; DEVISE, 4.
ACT OF BANKRUPTCY. — See BANKRUPTCY, 1.
Action. A married woman owning separate real estate raised money, partly for building on said estate, and partly to pay a debt of her husband's. Both husband and wife joined in the mortgage, and the husband covenanted to repay the loan, which was payable in instalments. The husband and wife gave the defendant authority to receive the first instalment, and the defendant received the same and paid said debt, and held the residue for a debt due him from the husband. The husband and wife brought an action, in the wife's right, for said residue. Held, that said wife could be joined in the action. — Jones v. Cuthbertson, L. R. 8 Q. B.
See COMPANY, 1; False REPRESENTATION.
ADEMPTION. — See DEVISE, 1.
AMALGAMATION. One part of an indenture in two parts, expressing the terms of amalgamation of two companies, was executed by one company, but the second company, before executing their part, added a proviso altering its terms. Held, that said indenture was void, and that there was no amalgamation. – Wynne's Case, L. R. 8 Ch. 1002.
AMBIGUITY. — See LEGACY, 4.
APPOINTMENT. 1. A testator, who had power to appoint the income of a fund to his wife for her life, after directing that his debts should be paid, gave the residue of his property, real and personal, to which he might be entitled, or over which he might have any power of disposition and control, to his wife, her heirs, assigns, and legal representatives. Held, that the power was well exercised. — In re Teape's Trusts, L. R. 16 Eq. 442.
2. A testator, who had a power of appointment over £6000 charged upon real estate, by his will directed said sum to be invested in the purchase of land, and that the rents of such land should be accumulated in a manner which was void under the Thellusson Act. Held, that said rents went to the next of kin, and did not sink into the estate upon which they were charged, nor go to the testator's heirs. — Simmons v. Pitt, L. R. 8 Ch. 978. See DEVISE, 2; LEGACY, 1, 6, 9; POWER.
APPROPRIATION. - See BILLS AND NOTES.
ARBITRATION. 1. The plaintiff company contracted to build a railway between certain termini, and the defendant company contracted to maintain said railway, and carry thereon all traffic arising between said termini. And the plaintiff and defendant agreed that all differences between them should be settled by a standing arbitrator to be named by them in January yearly. The plaintiff built said road, and the defendant carried traffic arising between said termini upon its own lines of railway and not over the plaintiff's railway. No arbitrator was appointed. The plaintiff filed a bill praying an injunction to restrain the defendants from carrying traffic arising between said termini over other than their own railway. Held, that the court had jurisdiction, and that the injunction should be granted. — Wolverhampton & Walsall Railway Co. v. London & North-western Railway Co., L. R. 16 Eq. 433.
2. Declaration, that the defendant had agreed to keep on certain manors such a number only of hares and rabbits as would do no injury to trees upon the manor; yet that the defendant did not keep such a number, &c. Plea, that one of the terms of the agreement was, that if such injury was done the defendant would pay a reasonable compensation for the same, to be determined by two arbitrators or an umpire, and that no arbitrators had been appointed. Demurrer, held, that the plea was a good one. There was no liability until an award was made. — Dawson v. Fitzgerald, L. R. 9 Ex. 7. See CONTRACT, 1.
ARTICLES. — See CORPORATION.
ASSENT. — See LEGACY, 9.
BANKRUPTCY. 1. G. owed money to N., who threatened proceedings for the recovery of his debt. G. stated to N. that he had no money, but that he had some oil, and that if N. could induce a certain firm to buy it he would pay N.'s debt out of the proceeds. N. stated the whole matter to said firm, who agreed to buy the oil of G. At this time G. had no oil, but a few days later he contracted for the purchase of oil from W., and the oil was delivered to said firm at G.'s request. G. never paid W. for the oil, and had no expectation of being able to do so when he ordered it. Said firm paid to N. the amount of his debt at G.'s request. G. became bankrupt. A jury found that said oil, being substantially the whole of G.'s property, was transferred by him when insolvent and not under pressure, with intent to give N. a fraudulent preference. The court thereupon beld that the transfer was an act of bankruptcy and a fraudulent preference. On appeal, held, that on the evidence the purchase of said oil was a bonâ fide transaction, and that N. was a payee in good faith and for a valuable consideration; and that there was no act of bankruptcy and no fraudulent preference. — Ex parte Norton. In re Gollen, L. R. 16 Eq. 397.
2. A. and B., partners, who had borrowed money of their father for the use of the partnership, covenanted, jointly and severally, that when requested by their father, or by a trustee, they would pay said money to the trustee, who was to hold in trust for the father for life, remainder to A. and B. as tenants in common; and in the mean time A. and B. covenanted to pay interest upon said money. A. and B. became bankrupt. Held, that said trustee had a claim provable against both the separate and partnership estates of A. and B. in bankruptcy, which was not subject to deduction on account of the reversionary interest of A. and B. — Ex parte Stone. In re Welch, L. R. 8 Ch. 914.
3. In 1866 the C. company, which was indebted to P., agreed to transfer to three other companies its whole undertaking, and the companies agreed to give the contract for constructing the C. railway to P. or his nominee. In 1867 P. executed an inspectorship deed surrendering his effects, and it was provided that he should receive his discharge as soon as all his effects should be assigned to the inspectors. In 1871 P., in consideration of a certain sum of money, nominated a certain firm as contractors to build said railway. Held, that as P. was not a party to the agreement between the C. and other companies, and as the C. company did not make said agreement, or any covenant therein, as trustee for P., P. bad no interest under the same which would pass by the inspectorship deed, and that said deed did not affect property coming to P. after the date of its execution. — Ex parte Piercy. In re Piercy, L. R. 9 Ch. 33.
See COMPANY, 2; EXECUTORS AND ADMINISTRATORS, 3; LIEN, 2 ; PARTNERSHIP, 3. BEQUEST. — See APPOINTMENT, 1; CHARITY; ELECTION; EXECUTORS AND
ADMINISTRATORS, 2; ILLEGITIMATE CHILDREN; LEGACY ; Lex Locı; MARSHALLING ASSETS; MORTGAGE, 3; Trust, 3, 5.
BILL OF LADING. By the provisions of a charter-party, if any part of the cargo should be delivered in a damaged condition, freight should be payable "on the invoice quantity taken on board as per bill of lading, or half freight upon the damaged portion, at the captain's option.” A bill of lading for a certain quantity of barley was signed by the master, who added, however, at the foot of the bill of lading, “quantity and quality unknown.” The barley was damaged, and the master claimed freight for the invoice quantity taken on board as per said bill of lading, Held, that the master was entitled to the freight he claimed, notwithstanding said memorandum at the foot of said bill of lading. — Tully v. Terry, L. R. 8 C.P. 679. See FREIGHT; INSURANCE, 2.
BILLS AND Notes. 1. L., in Bombay, and G., in London, were engaged in joint transactions in buying and selling goods in India and England. According to their course of dealing, L. drew on G., discounted the drafts in Boinbay, and with the proceeds purchased cotton, which was consigned to G., under the agreement that such cotton should be specifically appropriated to meet the bills. Held, that holders of such bills were entitled to have the cotton specifically appropriated, subject to the right of the joint creditors (if any) of L. and G. to have the proceeds of
such cotton applied as part of the aggregate estate. - Ex parte Dewhurst. In re Leggatt. In re Gledstanes, L. R. 8 Ch. 965.
2. A., in New Orleans, remitted funds to B., in Liverpool, and then sold bills drawn on B., stating that the bills were drawn expressly against funds to a much larger amount already remitted to B. Held, that a purchaser of said bills was not entitled to a specific portion of the funds remitted to B. – Citizens' Bank of Louisiana v. First National Bank of New Orleans, L. R. 6 H. L. 352. See EVIDENCE, 1; LETTER.
BOTTOMRY BOND. — See Wages.
BROKER. Certain stock-brokers bought for their principal a large quantity of stock, for which they paid their own money. The principal died July 19, and on July 16, 18, and 19, the brokers sold the stocks, which had fallen in value. In ordinary dealings the brokers would have kept the transaction open with their principal, in accordance with the customs of the Stock Exchange, until July 28. Held, that the brokers had a right to recover the difference between the amount paid for the stock and the amount for which it was sold, less any loss occasioned by selling before July 28, the next settling day. — Lacey v. Hill, L. R. 8 Ch. 921.
BURDEN OF Proor. In a case of damage the defendants made no charge of negligence against the plaintiffs, but denied generally the averments in the petition, and pleaded inevitable accident. Held, that the burden of proof was on the plaintiffs, and that they must begin. — The Benmore, L. R. 4 Ad. & Ec. 132.
CHARGE. A tenant for life, with proviso for renewal, whose estate was subject to certain charges, neglected having a renewal of the lease, which, if duly renewed, would bave still been subject to said charges. The tenant purchased the reversion, which was conveyed to trustees, to prevent merger of the term. Subsequently the tenant mortgaged the property in fee, said trustee joining in the conveyance. Held, that the charges upon the renewable term were fastened on the reversion also. — Trumper v. Trumper, L. R. 8 Ch. 870; 8. c. L. R. 14 Eq. 295; 7 Am. Law Rev. 468. See APPOINTMENT, 2; LEGACY, 5; MORTGAGE, 3.
CHARITY. A testator gave the residue of his real and personal estate to trustees for investment in government securities in their joint names, the interest to be from time to time given to such of the lineal descendants of R. as they might severally need, the trustees to make such provision as would ensure a continuance of said trust at their decease. Held, that the gift was charitable. — Gillam v. Taylor, L. R. 16 Eq. 581. See CONTRACT, 6; MARSHALLING Assets.
Check. – Ste EVIDENCE.
CODICIL. — See LEGACY, 7.
COMPANY. 1. The L. company desired to have 40,000 shares taken in the company. The I. company guaranteed a subscription for said shares, and applied to a bank to discount their notes for £200,000, which the bank agreed to do upon the guarantee of the L. company that until the notes were paid it would leave with 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 the amount. The £200,000 was carried to the credit of the I. company, which then provided shareholders, and paid a deposit of £5 per share on the 40,000 shares, thus replacing the £200,000 to the credit of the L. company at the bank. Afterward, the notes not being paid, the bank paid them out of the above sum standing to the credit of the L. company. After an order had been made winding up the L. company, a shareholder filed a bill on behalf of himself and all the other shareholders, except the defendants, against the L. company and the bank to recover said £200,000 for the benefit of the L. company, as having been applied in breach of trust. Bill dismissed. — Gray v. Lewis. Parker v. Lewis, L. R. 8 Ch. 1035. See Gray v. Lewis, L. R. 8 Eq. 526.
2. The plaintiff, who held shares in a company, sold them to A., who sold them to B. The company was wound up, and a call made upon said shares. B. was unable to pay, and the company proved for the amount of said calls against A., who had become bankrupt, but no part of said amount was paid. The plaintiff paid a sum in settlement of the claim against him for said calls, which he was obliged to pay under the Companies Act. Held, that A. was liable to indemnify the plaintiff against calls made after A. had transferred said shares to B., and that said liability was not discharged by A.'s bankruptcy, as it was not provable under $ 153 of the Bankrupt Act, 1861. – Kellock v. Enthoven, L. R. 8 Q B. 458.
3. If the governing body of a company is so divided that it cannot act together, the court will grant an injunction and appoint a receiver, if necessary, until a meeting has been held by the company, and a proper governing body appointed. — Featherstone v. Cooke. Trade Auxiliary Co. v. Vickers, L. R. 16 Eg. 298.
4. By deed of settlement of a company, a shareholder desiring to transfer his shares to any person was to hand in the name of such person to the directors, who were either to accept him as transferee or find some one within fourteen days who would take the shares at market price. Failing to find such person, the person proposed would be entitled to the transfer. The company amalgamated with a corporation without authority under said deed, but with assent of all the shareholders. A year later the former directors of the company executed a deed with the corporation resuscitating the company, and shortly afterward the corporation was wound up. Afterward A. transferred 200 shares to P. for a nominal consideration, and the transfer was approved by the directors. Held, that said transfer was invalid. — Allin's Case, L. R. 16 Eq. 449.
5. The plaintiff sold fifteen shares to a broker, who gave the name of K. as transferee. K. subsequently turned out to be an infant, the plaintiff was obliged to pay calls, and be filed a bill against the broker for indemnity. The broker answered that he had purchased ninety shares, in which said fifteen were included, for A., B., and C., but that the shares were left standing in K.'s name, and were not appropriated between A., B., and C. Held, that A., B., and C. were sever