« PreviousContinue »
REMOTENESS. — See CONSTRUCTION, 2.
REQUEST. — See Trust, 3; Will, 1.
SALE. 1. March 3, 1876, D., a broker, bought for B. & Co., his undisclosed principals, certain dry goods lying at the K. Docks consigned to C., payment to be made in fourteen days. C. signed a delivery order to the Docks' superintendent to the order of D. D. indorsed it to B. & Co. B. & Co. indorsed it to plaintiffs, as security for advances. March 18, being prompt day, plaintiffs sent the delivery order to the Docks' office, with the request to hold the order, and have warrants made out as soon as possible. He was told the goods would be ready for delivery on the 20th; and a clerk was sent to the Docks' warrant office with the order, where he arrived at 3 P. M. Meantime D., hearing that B. & Co. had suspended, paid C. for the goods, sent to the Docks' warrant office, and obtained a warrant for the goods in the name of C. before the other order arrived, had C. indorse the warrant to him, and give him a second delivery order. The Docks Company returned the first delivery order unexecuted, and plaintiffs brought suit against C., D., and the company. It is a usage of the London Dry Goods Market, that a broker who does not disclose his principal is liable as surety for the latter's default. Held, that the unpaid vendor's lien had passed to D., who was surety for R. & Co., and the plaintiffs gained no title. — Imperial Bank v. London & St. Katherine Docks Co., 5 Ch. D. 195.
2. A man brought in pigs from his infected herd, out of which many had died, and had them sold, expressly stating that they were to be taken with all faults. Held, that at common law, as well as by the Contagious Diseases (Animals) Act, 1869, he was liable in damages to the buyer, on whose hands the pigs died. — Ward v. Hobbs, 2 Q. B. D. 331.
3. N. undertook to sell to E. three farms. The agreement to purchase was signed Sept. 3, 1873, and payment was to be made and possession given Sept. 29 following. In case the purchase was not completed on that day, the purchaser was to pay interest to such reasonable date as might be agreed upon. On that day it turned out that the seller had not a legal title to the property, and the purchaser refused to accept the same, and afterwards, when the seller offered him a clear title, persisted in his refusal. Held, that time was of the essence of the contract, and therefore the refusal was justified. — Noble v. Edwards, 5 Ch. D. 378.
4. The defendants were auctioneers, and issued a list headed: “Great Western Railway Co., catalogue of unclaimed property, which will be sold by auction by Messrs. H. & E., on Tuesday, November 7, or following day. By order of the directors of the above company,” &c. There were the following conditions also printed on the same document: “ The lots to be cleared away within three days after the sale, at the purchaser's expense. If any deficiency arise, or from any cause the auctioneer shall be unable to deliver any lot ... then, in such case, the purchaser shall accept compensation. Upon failure of complying with the above conditions, the money deposited in part payment shall be forfeited. All lots unclaimed within the time aforesaid shall be resold by public or private sale, without further notice, and the deficiency made good by the defaulter.” Plaintiff bought a lot on Wednesday, and paid his deposit, but did not go for the goods till Monday, when he was told the lot had been delivered to another party. A witness said that he saw the goods Saturday morning in process of being delivered. Defendants claimed that they were not liable, on the ground that they were the agents merely of the railway company, and, also, on the ground that plaintiff was bound to take the goods within three days, that being a condition precedent. Held, that there was evidence of a personal contract on the part of the defendants, and that the condition to remove the goods was not a condition precedent.-Woolfe v. Horne, 2 Q. B. D. 355.
See COMPANY, 5; FACTOR; VENDOR'S LIEN.
SALVAGE. The crews of a pilot cutter and three boats, all of the Scilly Islands, saved ten of the passengers of the wrecked German steamship, the Schiller. Subsequently, some of the specie on the Schiller was recovered by divers; and the owners, masters, and crews of the cutter and boats made a claim for salvage out of said specie. Held, that they were entitled. — The Cargo ex Schiller, 2 P. D. 145; s. c. 1 P. D. 473; 11 Am. Law Rev. 702.
SEA-WALL. — See PRESCRIPTION.
SEAWORTHINESS. — See INSURANCE. SHIPPING AND ADMIRALTY. — See CHARTER-PARTY, 1, 2; Freight; Gen
ERAL AVERAGE; INSURANCE; MORTGAGE; SALVAGE.
SLANDER. — See LIBEL AND SLANDER.
STATUTE OF FRAUDS. — See LEASE.
STATUTE OF LIMITATIONS. 1. Demurrer that the following note did not revive a debt otherwise barred by the statute: “Your note . . . forwarded to me here. I return to S. about Easter. If you send me there the particulars of your account, with vouchers, I shall have it examined, and check sent to you for the amount due; but you must be under some great mistake in supposing that the amount due to you is any thing like the sum you now claim." Demurrer overruled. - Skeet v. Lindsay, 2 Ex. D. 314.
2. In 1783, a lease was granted for ninety-nine years, and there was enjoyment under the lease until 1876, when an action was brought for possession, on the ground that the lease was void under 13 Eliz. c. 10. Demurrer that the claim was barred by the Statute of Limitations. Held, that the lease was voidable, not void, and that consequently the statute did not begin to run till the action was brought. — Governors of Magdalen Hospital v. Knotts, 5 Ch. D. 175.
See COMPANY, 2.
CHASER; VENDOR'S LIEN.
SUBSTITUTION. — See CONSTRUCTION, 1.
SYNDICATE. — See COMPANY, 8.
TENANT FOR LIFE. A tenant for life was allowed by the court to retain possession of the titledeeds, as against the remainder-man, who applied to have them deposited in court. — Leathes v. Leathes, 5 Ch. D. 221.
TIME. — See Contract; SALE, 3.
Trust. 1. In 1807, a testator left a will, with the following clause: “I appoint my executor, Charles E., my youngest brother, to be trustee for the following legacies,” naming them: “ Considering that money will be more essential to my brother Samuel than a distant possession of land, I bequeath to Samuel, during his natural life, the interest of £3,000; and, after his death, to his eldest son, James, by his last wife, Margaret J., or M. or E., till he attains twenty-one, and then to obtain the principal. I order that my youngest brother, Charles E., shall be liable to all my lawful debts of every description, and pay them as soon as he can; and also pay my legacies when regularly due; . . . and, to enable him to do this, I bequeath unconditionally to him all my estates ... in Armagh. I also bequeath to him ... all my estates ... in Louth or elsewhere.” The legacy of £3,000 to Samuel was not paid; but, in 1833, his son accepted £300 in settlement, on the ground, urged upon him by Charles's representative, that he was entitled to nothing, as being illegitimate. In 1872, a bill was filed by parties interested under his claim, asking that the composition of 1833 be set aside as unconscionable, and the £3,000, with interest, be declared well charged upon the estates and for general relief. Held, that the agreement of 1833 was null and void, — all the parties having plainly proceeded upon the assumption that the question of the illegitimacy of Samuel's son decided his right; whereas, on the words of the will, that had nothing to do with it; that there was created a trust in respect of the £3,000 on the estates in Armagh bequeathed to Charles (quære as to the Louth estate, that point not having been disputed), and consequently the Statute of Limitations did not apply. Interest on the legacy was, however, allowed for six years only, on the ground that no direct proceedings had been taken to enforce the claim before 1872. Thomson v. Eastwood, 2 App. Cas. 215.
2. A testator devised his property to trustees upon trust, inter alia, that they should, " in their discretion and of their uncontrollable authority, pay and apply the whole or such portion only of the annual income . . . as they shall think expedient to or for the clothing, board, &c., for the personal and peculiar benefit and comfort of my dear wife.” One of the trustees was residuary legatee. The wife was an insane person, and had property in fee in her own right. Held, that the court would not make a decree that the trustees “ should exercise such discretion by paying and applying such portion only of the income of the estate of the testator as with the income from other sources will make up" the amount needed for the wife's support, &c. The court would not interfere with the exercise of the discretion given to the trustees by the will. — Gisborne et al. v. Gisborne et al., 2 App. Cas. 300.
3. Residuary bequest to trustees to hold “in trust for such of my nieces, M. and N., as shall be living at my death, my desire being that they shall distribute such residue as they think will be most agreeable to my wishes." Held, that M. and N. took absolutely for their own benefit. - Stead v. Mellor, 5 Ch. D. 225. See DEVISE, 2.
TRUSTEE Trustees advanced money to A., a builder, on security of land purchased by A. of B., the defendant and one of the trustees, and which A. had built upon. The money was used partly to pay for the land, and partly to repay other sums which A. Owed B. The plaintiff, the other trustee, knew that A. and B. had had business relations. A. went into bankruptcy, and the plaintiff filed a bill against B., his co-trustee, alleging that the security was insufficient, and asking that the property be sold, and that the defendant be held to make up the deficiency. Refused. — Butler v. Butler, 5 Ch. D. 554.
ULTRA VIRES. Suit to recover money advanced by the plaintiff bank to the O. R. Company, and secured by equitable mortgage. Under art. 50 of the articles of association of the company, the power of the directors thereof to borrow money " should not exceed in the aggregate, as an existing debt at the saine time, one-half of the then actually paid-up capital.” Under art. 31, the power of the directors to borrow could be extended by one-half the votes of all the shareholders at a generať meeting. There was no limit of the power of the company to borrow. Dec. 23, 1867, the directors got a credit for £10,000; Sept. 11, 1868, one for £5,000. Oct. 29, 1868, these acts were ratified by the company. Subsequently, the first credit was renewed, and another for £5,000 obtained, neither of which were ever ratified. The paid-up capital was £8,850; and in February, 1871, the amount borrowed was £15,000. Held, that the ratification by the company of Oct. 29, 1868, was within the powers of the company; but it did not authorize any similar transaction by the directors in the future; and all done by them subsequently to that date, contrary to art. 50, was ultra vires. Decree for £8,850 only. — Ireine v. The Union Bank of Australia, 2 App. Cas. 366. See COMPANY, 2, 7.
USAGE. — See VENDOR'S LIEN.
VENDOR AND PURCHASER. Feb. 10, 1876, L., a merchant, and W., a manufacturer, made an agreement under which W. was to supply L. with goods from time to time, and W. should draw upon L. bills of exchange for the invoice price, which L. should accept, L. having regularly a credit of £5,000. L. was to ship the goods to R. & Co., Shanghai, for sale on his account; sending the bills of lading by post, and made out to R. & Co.'s order. W. was to have a lien on the bills of lading, and the goods in transit to Shanghai, or in anybody's hands as well as upon the proceeds or the goods purchased therewith in the hands of the consignees, or in transit homewards; such lien not to be general, but to be confined to the particular shipment, and cease when the bills for such shipment had been paid by L. L. was to insure primarily for the benefit of W., as. mortgagee or pledgee. L. promised W. to give R. & Co. notice of this agreement; but they had no notice of it. Under the agreement, L. ordered goods of W.; they were packed by W.'s packer, and marked “Shanghai.” W. sent the invoice to L., beaded “ L., bought of W.” L. wrote the packer to send the goods to the G., a Shanghai vessel loading at the dock. W. paid the freight to the dock, and the packer advised L. that he had sent the goods thither, at Li's disposal. W. drew on L., at six months, for the amount of the bill of the goods; and L. accepted the bill. The carriers who took the goods to the dock notified L. that they had arrived at their warehouse, and would be sent to the G.; and they were shipped on board that vessel, and the bills of lading made out to L.'s order. He did not, however, pay the freight, and the bills of lading remained in the ship-owners' hands. Subsequently, April 5, 1876, L. suspended payment. April 8, the G. sailed. April 12, L. filed his petition in bankruptcy, and, May 20, was adjudged bankrupt. The trustee in bankruptcy and W. each demanded the bills of lading before the ship reached Shanghai; and it was agreed that the goods should be sold, and the proceeds held to abide the decision of the court. Held, that W. had a right of stoppage in transitu until the goods reached Shanghai; and that, by demanding the bills of lading, he had exercised his right, and could have the bill of exchange accepted by L. paid out of the proceeds of sale of the goods. — Ex parte Watson. In re Love, 5 Ch. D. 35.
See BILL OF LADING; SALE, 3.
VENDOR's LIEN. The P. Company, defendants, manufacturers of steel rails, made a contract for rails with S. & Co., to furnish them a certain quantity at stated times, delivered at Liverpool on board ships; payment to be made three-fifths net cash, and two-fifths by buyer's acceptance, at four months, as each five hundred tons of rails were ready for shipment. The warrant signed by the defendant company for the delivery of the rails contained the phrase, “ Iron deliverable (f. o. b.) to S. & Co., or to their assigns by indorsement hereon;" and it was shown to be the usage of the iron trade that such warrants were considered to pass the goods to the holder thereof free from vendor's lien. Several warrants in this form were sent, with invoice and drafts, to S. & Co., as the instalments of rails were finished, and the rails stored at the company's works. S. & Co. pledged the warrants to the plaintiff banking company for advances; and, before the contract was completed, and while some of the goods were still at the works, and some had been sent to Liverpool on the order of S. & Co., and were in the railway company's warehouse, S. & Co. suspended. Held, that under the above usage, the plaintiffs were entitled to the goods at the works, and were, moreover, entitled to those in