« PreviousContinue »
Partnership-Joint Adventure-Sale. A. and B. entered into a joint adventure for yarn. A. authorized B. to purchase the yarn at a certain price, and B. purchased the yarn at a slightly increased price, in his own name, from L., and granted bills in his own name, without disclosing the joint adventure. B. became bankrupt. In an action by L. against A. Held (Lord Mure diss.) that A. was liable to the extent of the price at which he had authorized B. to buy the yarns. Many English cases were cited on both sides. Per Lord President (Inglis): “ The fair result of the evidence is that B. was to act as agent for the joint adventure in making the purchase, and I do not think that the circumstance that he agreed to give a farthing more the spindle than he was authorized to give deprives him of the character of agent. If an agent exceeds his instructions, that does not alter the character of the transaction. He may not bind his principal to a greater amount than he was authorized to bind him, but he will not make himself anything but an agent." 8 June, 1877. Lockhart v. Moodie & Co., 4 S.C., 859.
A ship was chartered to load a cargo of scrap iron, and therewith to proceed to G--, or so near thereto as she may safely get. On roth September she arrived at G-, but the docks
On the 12th, the ship was anchored off the entrance of one of the docks, where it was proved that ships were in use to be unloaded of similar cargoes by means of lighters, but there had been no practice as to scrap iron. On the 13th, the master intimated he was ready to discharge ; but the discharge did not commence until the 22nd, and was completed on the 28th September, when the vessel had been removed into the docks. Held, that demurrage was due from the 14th to the 28th September. Many English cases were cited. Per Lord President (Inglis): “ There is no difficulty in the rule of law, which is recognised both here and in England. A vessel, where she undertakes to go to a certain port, does not fulfil her obligation unless she goes either to the appointed place of discharge, or to a usual place of discharge. I am of opinion that the obligation in this case was fulfilled, and that the charterers, though they desired to get the vessel into the railway dock for the purpose of discharging on to trucks, could not reasonably refuse to take delivery where the ship lay, when the result was to cause delay." 19 June, 1877. Bremner v. Burrell and Son, 4 S.C., 934.
Property-Restriction. All the feuars in a street held titles containing restrictions that “the houses to be built should all be single or self-contained lodgings." During thirty years, numerous houses had been converted into business offices. Held, that the right of the feuars to object had been lost by abandonment. 22 June, 1877. Fraser v. Downie, 4 S.C., 942.
Domicile-Succession. A Scotchman entered the civil service of the East India Company in 1841, and continued so until 1875, when he died in Scotland while on furlough. Held, that neither the clauses in the Act, 1858, nor the Act of Council, 1865, affected his domicile, which he had acquired before the Acts had passed, and that his domicile was in India at the time of his death. 23 June, 1877. Wauchope v. Wauchope, 4 S.C., 945.
Thellusson Act, 39, and Geo. II., c. 98. A trust deed directed the trustees to lay out the residue of the succession in the purchase of lands to be entailed. The trustees did not make the purchase until thirty-four years after the testator's death. Held, ist, that the Thelluson Act applied to the accumulations made after the lapse of twenty-one years from the testator's death; but 2nd (Lord Deas and Lord Rutherfurd Clerk dissenting), that the heir of entail was entitled to the accumulations and not the trustee's next-ofkin, as he would have been entitled to the rent of the land if it had been purchased. 29 June, 1877. McKenzie v. McKenzie's Trustees, 4 S.C., 962.
Contract-Reparation. An action of damages was founded on a missive whereby the defender agreed to give the pursuer a certain salary for the first two years' service, and “at the expiry of the second year I engage to give you a substantial interest by way of partnership in my business, so that your annual income may be considerably increased." The pursuer alleged that the defender failed to give implement of the concluding clause: Held (Lords Craighill and Shand diss.) that the action was irrelevant, in respect there were in the letter no termini habiles out ofwhich a contract of copartnery could have been formed. Per Lord President (Inglis): “ There is no means of making out the termini of a contract of co-partnery; there is no endurance specified, no declaration of what shares are to be. None of the essentials of such a contract
are settled in this short sentence. If any man of business was set down to prepare a contract of co-partnery from these materials, he would decline the employment, because the task would be impossible.” “A contract which cannot be enforced by specific implement in so far as regards its form and substance is no contract at all, and cannot form the ground of an action of damages.” Per Lord Shand: “ The well-known
• language of obligation is used. It may be that unfortunately the Court cannot tie down the defender to any obligation, because the deed is too loosely expressed, but it is clear that the undertaking was given as an obligation, and I think it must be taken to have been the leading consideration which induced the pursuer to enter into the contract. This being so, the pursuer suffers injustice if he has given his services for two years at a low remuneration, and now is to find that the remaining stipulations are not binding." "The law will not compel parties to enter upon, or, in some cases, to keep up, a close and intimate relation against their will, but will give damages for breach of contract. The most common example is an engagement to marry, and the contract of service is another. So also in partnership the law will not compel specific implement where the co-partnership has not begun, but damages will be given in lieu of implement." (English authorities were cited, especially 1822, Figes v. Cutler, 3 Starkie, 139; 1832, McNeill v. Reid, 9 Bingham, 68.) July, 1877. McArthur v. Lawson, 4 S.C., 1134.
Legal Obituary of the Quarter.
(ENGLAND, SCOTLAND, AND IRELAND.) ASHWORTH, Thomas Baker, Esq., Solicitor, Rochdale, aged 34. Admitted 1868. Sept. 30.
Batt, William Forster, Esq., Solicitor, Abergavenny, aged 65. Admitted 1837. Sept. 25.
BERKELEY, Thomas, Esq., Solicitor, aged 75. Admitted 1831. July 17.
BLEWITT, Reginald James, Esq., formerly Solicitor, of Llantarnam Abbey, Monmouthshire, aged 78. J.P. and D.L. for Monmouthshire; Editor of the Monmouthshire Merlin, a Liberal paper, 1829-32; M.P. (Liberal) for Monmouth District Boroughs, 1837-52. Sept. 11.
Boodle, Henry Mitford, Esq., Certificated Conveyancer, aged 76. Aug. 3.
BOSANQUET, William Henry P., of Kilmagemogue, Co. Waterford, and of the Inner Temple, Esq., Barrister-at-Law, J.P. for Co. Waterford, aged 73. Called 1836. Sept. 29.
BURN, George, Esq., W.S. (Scot.) Admitted 1864. Sept. 20.
Cayley, George John, of the Inner Temple, Esq., Barristerat-Law, aged 52. Author of " The Bridle Roads of Spain, "&c. Called 1852. Oct. II.
CHALK, Sir James Jell, of the Middle Temple, Knight, Barrister-at-Law, F.S.A., aged 74. Called 1839. Secretary to the Ecclesiastical Commissioners, 1850-71, receiving the honour of knighthood on his resignation. Sept. 23.
CHAPMAN, James, Esq., D.C.L. (Ch. Ch., Oxon.), formerly an Advocate of the College of Doctors of Law; J.P. and D.L. for Kent. July 3.
CHELMSFORD, The Right Hon. Lord, Hon. D.C.L., Oxon., F.R.S., aged 84. We extract the following particulars of his career from the Daily News :-“ The late Lord Chelmsford was the youngest of the three sons of Mr. Charles Thesiger, collector of Customs in the Island of St. Vincent, by his wife, Mary Anne, daughter of Mr. Theophilus Williams, and was born in London, 15th July, 1794, consequently he was in his 85th year. At an early age he entered the Royal Navy as a midshipman on board the Cambrian frigate, having adopted the profession of his gallant uncle, Captain Sir Frederick Thesiger, R.N., who was aide-de-camp to Lord Nelson at Copenhagen. At the wish of his parents, his two elder brothers having died young, he changed his profession for that of the law, and was further induced to make the change on the destruction of his paternal property by the great eruption of Mount Souffrière in 1812. He was called to the bar by the Honourable Society of Gray's Inn in Michaelmas Term, 1818, and went the Home Circuit, of which he ultimately became a leading member, and was made a King's Counsel in 1834. He was an unsuccessful candidate for Newark in February, 1840, but in the following month was elected M.P. for Woodstock, which borough he represented in the House of Commons till 1844, in which year
he was elected M.P. for Abingdon, and represented that borough till 1852, when he was returned 'for Stamford, which he represented in Parliament till his elevation to the peerage. Sir Frederick Pollock having been appointed Lord Chief Baron of the Exchequer in the place of Lord Abinger in 1844, Sir William Follett succeeded him as Attorney-General, when Sir Robert Peel selected Mr. Thesiger for the vacant Solicitor-Generalship. As is customary, he then received the honour of knighthood. In July, 1845, Sir William Follett was compelled to resign his office as Attorney-General on account of his declining health, when Sir Frederick succeeded him as Attorney-General, a post which he filled till the resignation of Sir Robert Peel's Government in July, 1846. On Lord Derby coming into power in February, 1852, Sir Frederick Thesiger again became Attorney-General, which office he held during that short Administration. On Lord Derby again succeeding to power in February, 1858, Sir Frederick became Lord Chancellor, when he was made a Privy Councillor, and on March ist was raised to the peerage by the style and title of . Baron Chelmsford, of Chelmsford, in the county of Essex. He quitted the office with the Ministry in June the following year, Lord Derby again succeeded to the Premiership in June, 1866, when Lord Chelmsford resumed the post of Lord High Chancellor, which he held till February, 1868, when he retired from public life, and was succeeded by the present Lord Chancellor, Earl Cairns. The late peer was a fellow of the Royal Society, and an hon. D.C.L. of Oxford. He married, March 9, 1822, Anna Maria, youngest daughter and co-heir of Mr. William Tinling, of Southampton, and niece of Major Peirson, the heroic defender of Jersey, by which lady, who died April 9, 1855, he leaves surviving issue besides three daughters, four sons;