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DIGEST OF THE ENGLISH LAW REPORTS FOR AUGUST,
SEPTEMBER, AND OCTOBER, 1869.
ACTION. — See MONEY HAD AND RECEIVED.
ADMIRALTY. A vessel with her anchor down, but not actually holden by and under the control of it, is “under way,” within the meaning of the Admiralty Regulations, 1858. — The Esk, L. R. 2 A. & E. 350. See COLLISION.
AGENT. — See PRINCIPAL AND AGENT.
ASSIGNEES. — See Costs, 1.
BAILMENT. — See NEGLIGENCE, 1.
BANKRUPTCY. 1. In July, A. voluntarily gave to B., his principal creditor, a bill of sale of all his goods, &c., with a power to enter and sell if, &c. In October, B. entered and sold the goods for less than his debt. In November, A. was adjudged a bankrupt on his own petition, and the creditors' assignee sued B. for the conversion of said goods, and also for money had and received. Held, that as there could be no relation to an act of bankruptcy previous to the bankrupt's own petition, neither count could be maintained. — Marks v. Feldman, L. R. 4 Q. B. 481.
2. J. deposited bills of lading for cotton and coffee with G., as collateral security for G.'s acceptances. J. afterwards authorized G. to sell the cotton and coffee and receive the proceeds. Later, J. became bankrupt. The cotton was sold before J.'s bankruptcy; the coffee did not arrive till afterwards, and after the acceptances had been paid, but was then sold, J. being in G.'s debt. Held, a case of mutual credits. (KELLY, C. B., dissentiente as to the coffee.) (Judgment of Common Pleas reversed. Exch. Ch.) — Astley v. Gurney, L. R. 4 C. P. 714.
3. A. sued B., C., and D. on a joint debt. The defendants pleaded a set-off. (12 & 13 Vict. c. 106, § 171.) A. replied that before plea D. had become bankrupt. Held, a good replication. — New Quebrada Co. v. Carr, L. R. 4 C. P. 651.
4. Although a bankrupt's shares in a bank have been declared forfeited by the bank for a debt due to it, the bank may prove for the full amount of its debt; and the forfeiture, if questioned, must be tried in an independent proceeding. Ex parte Rippon, L. R. 4 Ch. 639.
5. After a company was ordered to be wound up, some of its debts were bought by contributories for much less than the sums actually due. Held, that the full amount of the debts might be proved for. — In re Humber Ironworks Co., L. R. 8 Eq. 122.
See Costs, 1; FIXTURE, 1; INTEREST.
BENEFIT SOCIETY. Among rules, mostly those of a Friendly Society, was this : “ Any free or nonfree member or members leaving his or their employment under circumstances satisfactory to the branch or executive council shall be entitled to the sum of 15s. per week.” An officer of the society testified that members would not be allowed to go where there were strikes, if they could prevent them, and that money would be granted to send them another way. Held (per COCKBURN, C.J., & MELLOR, J.; HANNEN & HAYES, JJ., dissentientibus), that, taking the rules with the evidence, one of the purposes of this society was to support strikes, and was illegal as in restraint of trade. — Farrer v. Close, L. R. 4 Q. B. 602.
BILL OF LADING. — See Sale.
BILLS AND NOTES. In an action against M., as an indorser of a bill of exchange, brought by a bona fide holder for value, the jury were instructed that “if the defendant's signature was obtained upon a fraudulent representation that it was a guarantee, and the defendant signed it without knowing that it was a bill, and under the belief that it was a guarantee, and if he was not guilty of any negligence in so signing the paper, he was entitled to the verdict.” — Held, that the direction was right. — Foster v. MacKinnon, L. R. 4 C. P. 704.
CHEQUE. 1. If there are not effects in a bank on which a cheque is drawn sufficient for its payment when presented, and it is presented at the time when the drawer has reason to expect it will be, and he has no ground to expect that it will be paid, he is not entitled to notice of dishonor; although at the time of drawing it, but before the agreed time of presentment, there were sufficient effects. — Carew v. Duckworth, L. R. 4 Ex. 313.
2. June 4, A. drew a cheque on H. & Co. at Falmouth, in favor of defendant, . who transferred it to the plaintiffs, his bankers at Truro, on the 5th. On the same day the plaintiffs sent the cheque to B. & Co., their agents in London, who received and presented it on the 6th to H. & Co.'s agents in London. On the same day H. & Co.'s agents forwarded the cheque to H. & Co., who received it on the 7th. On that day H. & Co.'s agents in London failed. On the 7th B. & Co. wrote to H. & Co. to return the cheque or to pay it. On the 8th H. & Co. wrote, declining to do either, and stopped payment on the 9th. The plaintiffs gave defendant notice of dishonor on the 9th. Held, that defendant
was liable. The cheque was presented, and notice of dishonor was given, in due time. – Prideaux v. Criddle, L. R. 4 Q. B. 455. See PRINCIPAL AND AGENT.
CLUB. — See COMPANY, 2.
CODICIL. At a testator's death there was found what purported to be a codicil to his last will and testament, which referred only to the dispositions of a deed of gift. Before the deed he had executed several wills, none of which were found. Held, that the codicil should be admitted to proof. — Black v. Jobling, L. R. 1 P. & D.
See WILL, 2.
COLLISION. Two steamships, the Q. and the R., each under the charge of a compulsory pilot, came into collision in the Thames. The Q. was solely to blame, and after the collision she rendered no assistance to the R., and showed no excuse for having failed to do so. Held, that the owners of the Q. were liable, although she had a pilot on board. The master was “the person in charge ” of the Q. at the time under 25 & 26 Vict. c. 63, $ 33. – The Queen, L. R. 2 A. & E. 354.
COMPANY. 1. A company, incorporated for the working of collieries, contracted with A. for the erection of a pumping engine and machinery for use in the colliery, and paid him part of the price. Held, that the company could maintain an action against A. for breach of the contract, though the contract was not under seal. (Exch. Ch.) – South of Ireland Colliery Co. v. Waddle, L. R. 4C. P. 617 ; 8. C. L. R. 3 C. P. 463; 3 Am. L. Rev. 268.
2. A mutual insurance association was formed, but not incorporated. By their rules the members were to severally, not jointly or in partnership, each in proportion to the amount of his own insurance, insure the ships of the other members. The affairs of the association were to be managed by a committee; and all moneys of the association were to be kept in their name at a banker's. Held, that outside creditors could only look to those who gave the orders, not to the association or the members as such. – In re London Marine Ins. Association, L. R. 8 Eq. 176. See BANKRUPTCY, 4, 5; BENEFIT SOCIETY ; INTEREST.
CONCEALMENT. — See INSURANCE, 2. CONDITION. — See INSURANCE, 3; LANDLORD AND TENANT. CONFLICT OF Laws. - See FOREIGN GOVERNMENT; DOMICILE; INSURANCE ;
STAMP, 2; WILL, 2.
CONSPIRACY. — See PARLIAMENT. CONSTRUCTION OF INSTRUMENTS. — See BENEFIT SOCIETY ; DEED; EQUITABLE
ASSIGNMENT; GUARANTEE; INSURANCE, 2–4; LEGACY, 1, 2; STATUTE; Trust; WILL, 5.
CONTRACT. A party caused an agreement for the purchase of a warehouse to be made out in the name of his nephew, paid part of the purchase-money, and induced his
nephew to sign on the faith of his representation that he would give him the warehouse, and pay the balance due. He then died testate, without having provided for such payment. Held, that it must be made out of his assets. – Skidmore v. Bradford, L. R. 8 Eq. 134.
See COMPANY; FOREIGN GOVERNMENT; COVENANT; GUARANTEE; INSURANCE; NovaTION ; PLEADING; SPECIFIC PERFORMANCE; STAMP, 1.
CONTRIBUTORY. - See BANKRUPTCY, 5.
CORPORATION. - See COMPANY, 1.
Costs. 1. The court will not require security for costs to be given by a plaintiff who sues as the assignee of a bankrupt for the benefit of the estate, although he is in insolvent circumstances. — Denston v. Ashton, L. R. 4 Q. B. 590.
2. Nor by two executors, one of whom is out of the jurisdiction, and the other insolvent. — Sykes v. Sykes, L. R. 4 C. P. 645.
COVENANT. 1. A., a brewer, sold land to B., who covenanted with him that A. his heirs and assigns should have the exclusive right of supplying beer to any public house to be erected on the land, but A. did not covenant to supply it. C. bought part of the land with notice of the covenant, built a public house, and supplied it with his own beer. A. filed a bill to restrain C., alleging that A. had always been ready to supply good beer at a fair price. A demurrer was overruled. The covenant was not void. — Catt v. Tourle, L. R. 4 Ch. 654.
2. A lessee having covenanted to use the demised premises for the sale of spirits, the lessor covenanted not to build or keep any house for such sale within half a mile of said premises. Held, that an assignee of the lease could not sue the lessor on his covenant. - Thomas v. Hayward, L. R. 4 Ex. 311.
See LANDLORD AND TENANT.
CURTESY. A husband may have curtesy in an equitable fee given to the separate use of his wife. — Appleton v. Rowley, L. R. 8 Eq. 139.
CUSTOM. — See MORTGAGE, 3.
DEBTOR AND CREDITOR. — See NovaTION.
DEED. The grant of a warren of conies in B., "and all that lodge thereupon built, called,” &c., which warren extends itself “ in and over the wastes of B.,” with a reservation of rent“ for” the same, does not pass an estate in the soil of said wastes. — Earl Beauchamp v. Winn. L. R. 4 Ch. 562. See TRUST.
DEMAND. - See CHEQUE, 2.
DESERTION. A wife having reason to believe that her husband had been guilty of adultery, separated from him, and instituted a suit for divorce, in which she failed. The
husband never thereafter sought to resume cohabitation, nor did the wife, and it was not resumed. Held, that these facts did not constitute desertion by the husband. — Fitzgerald v. Fitzgerald, L. R. 1 P. & D. 694.
DEVIATION. — See INSURANCE, 2.
DISCOVERY. A defendant, in a suit for infringement of a patent, in order to prove that there was no novelty in the plaintiff's patent, interrogated the plaintiff as to the inventions described in the specifications of previous patents, and asked him to show in what respect they differed from his. The plaintiff declined to answer, on the ground that these were not questions of fact, and that they related to the plaintiff's case. Held, that he must answer. A defendant may ask any questions tending to destroy the plaintiff's claim.
An exception bad in part, is not necessarily wholly bad. - Hoffman v. Postill, L. R. 4 Ch. 673.
DIVORCE. — See DesERTION.
DOMICILE. When a domicile of choice is abandoned, the domicile of origin revives and continues until a second domicile of choice is acquired. — Udny v. Udny, L. R. 1 H. L. Sc. 441.
ELECTION. — See PERPETUITY, 2.
EQUITABLE ASSIGNMENT. A., having wheat ex vessel M., in the hands of a factor for sale, borrowed 5001. from B., and gave B. his acceptance at two months, describing the consideration as “ value received in wheat ex M. ;” and it was orally agreed to renew the bill from time to time until A. should receive from the factor the proceeds of the wheat. Held, that this did not amount to an equitable assignment of the fund in the hands of the factor. — Field v. Megaw, L. R. 4 C. P. 660. EQUITABLE CONVERSION. — See TENANCY IN COMMON.
EQUITABLE PLEA. — See PLEADING.
EXCEPTION. — See DISCOVERY.
STAMP, 2; WILL, 3.
FIXTURE. 1. A lessee of rolling mills made an equitable mortgage of the same, and afterwards became bankrupt. On a case stated between the mortgagees and the assignees, held, (1) That duplicate iron rolls, which had been fitted to the machine and used, were fixtures, and passed to the mortgagees; (2) so were straightening plates embedded in the floor; (3) but rolls which had not yet been fitted to the machine; and (4) weighing machines which were placed in bricked