« PreviousContinue »
son or Lawrence to become the servants of the city of Boston in the one case, or of Whittle in the other. If they were in any general employment, they certainly, as far as the evidence went in each case, were engaged at the time of the accident in performing exactly the sort of work which they had agreed with their general employers to do; and, if either of them had refused to do that very work, we cannot but think that he would have been guilty of a breach of his contract with his general employer. Can it be said, that, under these circumstances, these two men are to be taken each to have agreed with another person to become his servant as to the same work by simply submitting to his superintendence and direction, a position which, it would seem, each must be assumed to have contemplated when he made his contract with his general employer? If the answer be in the affirmative, it is submitted that the application to such cases of the rule laid down in Priestley v. Fowler calls for an extension of the principles upon which that rule is based, to a state of facts very different from those in regard to which those principles were first enunciated.
WILLIAM F. WHARTON.
DIGEST OF THE ENGLISH LAW REPORTS FOR MAY,
JUNE, AND JULY, 1877.
ACCESSORY. — See MURDER.
ADULTERY. — See HUSBAND AND WIFE, 1.
AMBIGUITY. — See Will, 4.
ANNUITY. — See PROOF.
APPOINTMENT. — See Election.
AUCTION. — See SALE, 4.
BANKS AND BANKING. — See PARTNERSHIP, 1.
BEQUEST. 1. Gift of £10 to G. P. after the death of the life-tenant. G. P. was named one executor and trustee, but did not accept. Held, that the usual presumption that the gift was made to him as executor was rebutted by its not being payable till after the death of the tenant for life, and that G. P. was entitled to the gift. — In re Reeve's Trusts, 4 Ch. D. 841.
2. Will appointing widow executrix, directing sale of real estate, and the widow to pay the debts. Bequest to the widow of “all my money, cattle, farming implements, &c.; she paying my brother J. the sum of — to him or his heirs; to my brother L. the sum of — , to him or his heirs.” Held, that the widow was entitled to the whole, subject to the payment of the debts. -Chapman v. Chapman, 4 Ch. D. 800.
BILL OF LADING. December 22, 1875, G. & Co., fruit merchants, bought a shipment of goods of the defendants, payment by acceptance at three months on delivery of the shipping documents. Jan. 1, 1876, G. & Co. applied to the plaintiff for an advance of £2,000. They were already indebted to the plaintiff, and he advanced the £2,000, on the promise of G. & Co. to cover their previous account with further security. Jan. 4, the bill of lading, bearing date Dec. 29, 1875, indorsed in blank by defendants, was handed to G. & Co., and they accepted a draft for the price. The next day, they delivered the bill of lading to the plaintiff, according to their promise of Jan. 1 to give him security. Jan. 8, G. & Co. suspended; the ship arrived Feb. 3; the defendants tried to stop the goods in transitu ; and plaintiff claimed them under the bill of lading. The jury expressly found that all the plaintiff's acts were done bona fide. Held, that he was entitled to the goods. The transfer of the bill of lading passed the property, even though the consideration therefor was past. — Rodger v. Comptoir d'Escompte de Paris (Law Rep. 2 P. C. 393), not approved; Leask v. Scott Brothers, 2 Q. B. D. 376.
See VENDOR AND PURCHASER.
BILLS AND Notes. 1. Where the drawer of a dishonored bill has been adjudged bankrupt before the dishonor, a notice sent to him, instead of to the trustee in bankruptcy, by the holder of the bill, is sufficient to enable the latter to prove in the bankruptcy. Such notice sent to the only post-office address of the drawer with which the holder was acquainted is sufficient, although it had ceased for months to be the proper address of the drawer. - Ex parte Baker. In re Bellman, 4 Ch. D. 795.
2. M. & Co. made advances to K. & C.; and drew bills of exchange on K. & C. for the amount, which the latter accepted. They also made assignments to M. & Co. of certain debts due them, intended as security for the same advances. The debtors had notice of the assignment. K. & C. went into liquidation, and a bank which had discounted the above bills proved for the full amount thereof. The trustee collected the assigned debts, under an agreement between him and K. & C. that this should be done without prejudice to the rights of M. & Co. The latter applied to have the proceeds of the debts paid over to them. Held, that M. & Co. must first take up the bills which they had had discounted at the bank; and, if any thing was found due them above the amount of the bills, the proceeds of the debts should be applied first in payment of that balance, and, if any thing then remained, it should be applied in discharging M. & Co.'s liability under the bills of exchange. — Ex parte Mann. In re Kattengell, 5 Ch. D. 367.
See HUSBAND AND WIFE, 2.
BONDS. Coupon bonds were issued as security for a loan, interest payable semiannually for ten years. The redemption of the bonds was provided for by twenty semiannual drawings of not less than £50,000 each, the whole loan being £1,000,000. The drawings were to be May 1 and November 1 in each year. M. & Co., the borrowers, executed a deed of railway property to W. & D., trustees, by which they agreed to transmit such sums monthly as would “be sufficient to meet the half-yearly service and redemption of the loan.” “And the sums so remitted as aforesaid shall be applied in payment, ... on the next following 1st of December and 1st of June (as the case may be), of the principal sums secured by such of the said mortgage bonds as shall have been drawn for redemption on the preceding 1st of November and 1st of May (as the case may be)... and of the half-yearly interest on such of the said mortgage bonds as shall be outstanding and bearing interest which will become payable on such 1st of December or 1st of June (as the case may be). ... But no interest shall be payable on any drawn bond after the day fixed for its redemption." Upon default on the part of M. & Co., it was provided that the trustees might foreclose and take possession, and pay any moneys coming to their hands in defraying the cost of running the road and their own charges and expenses, and the residue towards the payment of the principal moneys and interest on the loan as follows: first, in payment of all arrears of interest actually due on such of the said bonds as shall be outstanding and bearing interest; secondly, in redemption of such an amount of the said mortgage bonds as ought to have been redeemed on any previous 1st of June or first of December, but may not have been redeemed; . . . and, lastly, in the payment of the future interest on the said bonds, and the redemption of the same in any future half year ..." and hold the surplus in trust for M. & Co. M. & Co. failed to remit; the trustees went into possession, and made payments on account of interest on undrawn bonds only, bonds having been drawn but not redeemed. This action was brought to determine how the trustees should apply the funds coming into their hands. Held, reversing the decision of the Master of the Rolls, that the funds should be applied pari passu to pay the interest on the undrawn bonds, and on drawn bonds that remained unredeemed by the fault of M. & Co. — Gordillo v. Weguelin, 5 Ch. D. 287.
BREACH OF PROMISE. — See EVIDENCE, 2.
BROKER. — See SALE, 1.
BY-LAW. — See RAILWAY, 1.
1. Charter-party between plaintiff, owner of the ship, and defendant, for a voyage between Cardiff and Callao to carry coal consigned to defendant's agent. Ship to be loaded at an average of seventy-five tons a day, commencing when wholly unballasted. Stiffening coal to be supplied at the rate of forty tons a day; and all days on which stiffening coal is taken on board, or the ship is detained for the same, are to be excluded in the computation of the said days allowed for loading. The vessel to be discharged at the rate of forty tons a day. “Demurrage to be paid for each day beyond the said days allowed for loading and discharging, respectively, at the rate of 3d. per registered ton per day.” “The master to have a lien on the cargo for all freight and demurrage under this agreement.” “ All liability of the charterers under this agreement shall cease as soon as the cargo is on board; . . . and all questions . . . of demurrage ... to be settled with the . . . agents of the charterers at the port of destination," and to be binding on the owners. “The owners and master to have a lien on the cargo for all freight, dead freight, and demurrage.” The ship was detained by the failure of defendants to furnish
stiffening coal. Plaintiff requested defendant's agent at Callao to settle the demurrage claim, and he refused; but plaintiff's agent delivered the cargo, without enforcing his lien. Held, that there was no liability at all on the charterers after the cargo was loaded. — Sanguinetti v. The Pacific Steam Navigation Co., 2 Q. B. D. 238.
2. Under a charter-party a vessel was to carry a cargo to a good and safe port in the United Kingdom, calling at Queenstown for orders, which were to be forwarded in forty-eight hours, specifying such port. It was agreed that the liability of the charterers should cease as soon as the cargo was on board; provided the same was worth the freight at the port of discharge, but the owners to have an absolute lien on the cargo for all freight, dead freight, and demurrage. The owners brought an action on the charter-party, alleging that the charterers, the defendants, failed to give orders as to said vessel's port of discharge, and also that the charterers gave orders for discharge at a port which was not good and safe within the meaning of said charter-party. Held, that the charterers were not liable under the charter. — French v. Gerber, 2 C. P. D. 247; s. c. 1 C. P. D. 737; 11 Am. Law Rev. 498. See FREIGHT.
COAL MINE. — See COMPANY, 2.
Codicil. — See WILL, 3.
COMMON CARRIER. — See RailwAY, 2.
COMPANY. 1. In 1864, the L. Company and three other companies were consolidated into the C. Company. The C. Company had power to raise any capital which any of the four consolidated companies had had power to raise, by issuing of stock, &c. The L. Company had had power to issue £100,000 preference stock, besides common stock. At the date of the amalgamation it had issued £85,000 preferred, which was called “ No. 1 Preference Stock," and the common stock was called “ No. 2 Preference Stock.” The Directors of the C. Company undertook to issue the remaining £15,000 stock, as No. 1 Preference Stock, under a bona fide impression that they could do so. The court having held that this stock ranked not only below the original No. 1 Preference Stock, but also below the common stock, action was brought by some holders of the £15,000 stock so issued against the C. Company, its directors and secretary. Held, reversing the decision of the Master of the Rolls, that the C. Company, its directors and secretary, were not liable to make it good, all the parties having acted under a common misconception of the law. - Eaglesfield v. Marquis of Londonderry, 4 Ch. D. 693.
2. Action by owners of a coal mine against the owners of an adjoining mine for breaking the barriers between the two mines. The boundary line between the mines was fixed in 1862, the defendants' mine being then owned by the H. Company, previous to which time there had been encroachments; and, in 1864, an agreement was executed, under which all claims for previous acts of trespass were declared settled. The depreda