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Scott v. Avery and Elliott v. Royal Exchange Assurance Co., have adopted it. Now in both those cases the clause under the consideration of the court was of the very broadest character. In the first, these words occurred: "if a difference shall arise, relative to ... or any other matter relating to the insurance;” in the second, these : “ in case any difference shall arise, touching any loss or damage.” In both cases the court allowed the plea, declaring indeed that they were to be distinguished from the authorities which laid down the rule as to ousting the courts; but finding their distinction in a verbal difference, rather than in one which touched the spirit of the contract. That distinction was, as we have already stated, that these contracts were to be likened to those in which A. agrees to pay B., upon the happening of a certain event, which event is, in this particular case, the determination of a third party. But the difficulty is here: The clause does not leave to the third party the simple determination of a debt: it opens the question whether there is any debt at all; it opens every question which can possibly arise as matter of difference between the parties. There can be no doubt, either, that the intention of Mr. Justice Cresswell, in drawing the clause in Scott v. Avery was to devise some means by which agreements to arbitrate might be held valid, nor that such was the practical result of the case. How, indeed, can the result of that case be distinguished from the result of Halfhide v. Fenning, which has been frequently said to be bad law? We have seen that even Baron Bramwell, who, having been of counsel for the agreement in Scott v. Avery, may be supposed to have had a leaning in favor of a liberal construction, refused to go the length of the decision reached in Elliott v. Royal Exchange Assurance Co., and desired to restrict the rule so as to cover only cases in which “the original agreement is not simply to pay a sum of money, but that a sum of money shall be paid if something else happens, and that something else is, that a third person shall settle the amount.” But the other judges were not satisfied with this, and it seems to us that they have practically overruled the early cases of Kill v. Hollister and Thompson v. Charnock, and their latest decision in effect admits the plea in bar of an agreement to refer. Again, as we have already said, the principle of Scott v. Avery, rigidly applied, would create a perpet
DIGEST OF THE ENGLISH LAW REPORTS FOR AUGUST,
SEPTEMBER, AND OCTOBER, 1868.
ABATEMENT. — See Trust.
ACTION. 1. Declaration that defendant wrongfully, negligently, and improperly hung a chandelier in a public-house, knowing that the plaintiff and others were likely to be therein and under the chandelier, and that the chandelier, unless properly hung, was likely to fall upon and injure them; and that, the plaintiff being lawfully in the public-house, the chandelier fell upon and injured him. Held, bad, on demurrer, as not disclosing any duty by the defendant towards the plaintiff, for breach of which an action would lie. — Collis v. Selden, Law Rep. 3 C. P. 495.
2. Declaration by the widow of A., under 9 & 10 Vict. c. 93, and 27 & 28 Vict. c. 95, against a railway company for negligence, whereby A. was injured, of which injuries he died. Plea, that in the lifetime of A. the defendants paid him, and he accepted, a sum of money in satisfaction and discharge of all claims and causes of action against the defendants. Held, good, on demurrer, inasmuch as the cause of action was the defendant's negligence, which had been satisfied in the deceased's lifetime, and the death of A. did not create a fresh cause of action. - Read v. Great Eastern Railway Co., Law Rep. 3 Q. B. 555. ADMINISTRATION. — See EXECUTOR AND ADMINISTRATOR.
ADMIRALTY. – See SHIP, 2, 3.
ADVANCEMENT. - See POWER, 1.
2; SHIP, 3. AGREEMENT. — See CONTRACT. ALIEN. — See COPYRIGHT.
ALTERATION. A promissory note expressed no time for payment, and, while it was in the possession of the payee, the words “on demand” were added without the maker's assent. In an action by the payee against the maker, held, that, as the alteration only expressed the original effect of the note, and was therefore immaterial, it did not affect the validity of the instrument. — Aldous v. Cornwell, Law Rep. 3 Q. B. 573.
APPEAL. 1. Where a decree has been made against several defendants, the bill may be dismissed against all the defendants on an appeal by one defendant only. - Kent v. Freehold Land & Brick-making Co., Law Rep. 3 Ch. 493.
2. Where a court of equity has decreed chattels to be delivered up, the execution will not usually be stayed pending an appeal to the House of Lords. — Harrington v. Harrington, Law Rep. 3 Ch. 564.
APPORTIONMENT. An annuity was charged on property, part of which was mining land, settled on A., and part agricultural land, settled on B. The mining land produced a large income, but, being of a fluctuating nature, and liable to great diminution, was valued at seven years' purchase, and the agricultural land at thirty years' purchase. Held, that the two properties must contribute in proportion to the actual income de anno in annum, and not in proportion to the capitalized value. – Ley v. Ley, Law Rep. 6 Eq. 174.
APPROPRIATION. — See TRUST.
ATTORNEY. 1. An attorney, acting as clerk to a firm of attorneys, received the purchase money of certain property, which he appropriated to his own use. He admitted the misappropriation. Held, that, though he was not acting strictly in his professional character, yet that the court would exercise its summary jurisdiction and punish the misconduct; and they suspended him for a year. – Re Hill, Law Rep. 3 Q. B. 543.
2. An attorney inserted in a deed a false recital as to the consideration, knowing it to be false, and attested the execution of the deed and the receipt of the consideration, knowing that no such consideration had passed or was intended to pass. But no fraudulent use of the deed had been attempted, no fraudulent motive alleged, and no injury occasioned by it. Held, that the misstatement was not in itself sufficient to warrant the striking the attorney off the rolls. — In re Stewart, Law Rep. 2 P. C. 88. See PARTNERSHIP.
AUCTIONEER. See FRAUDS, STATUTE OF, 2.
BANKRUPTCY. 1. A trader gave a bill of sale of his stock in trade to A.; but the bill was not registered. Nine months after, he conveyed by deed all his property, except his furniture and book debts, to a creditor, to secure the same debt and further advances. Held (1) that, notwithstanding the reservation, the deed was fraudulent, as it placed the bulk of his property out of the reach of his creditors; and (2) that, being thus fraudulent, it could not be sustained as a substitution for the first bill of sale. — Ex parte Foxley, Law Rep. 3 Ch. 515.
2. The plaintiffs were in the habit of drawing bills on Bombay, and handing them to the defendants, London bankers, for collection by the defendants' Bombay branch, the proceeds being remitted to the plaintiffs through the defendants' London house. The plaintiffs executed a deed of inspectorship, under the Bankruptcy Act, 1861, the defendants then having in their hands £3,248 of the plaintiffs, the proceeds of bills collected in Bombay. At the same date, the plaintiffs were indebted to the defendants in the sum of £8,335. Held, that it was a case of mutual credit, within the Bankruptcy Act, 1849, § 171, and that the defendants might retain the £3,248 as a set-off. – Naoroji v. Chartered Bank of India, Law Rep. 2 C. P. 444. See PRIORITY, 1.
BARRATRY. — See Ship, 1.
BILL OF LADING. See FREIGHT, 2; SHIP, 1.
CHEQUE. — See Donatio CAUSA MORTIS.
CODICIL. — See REVOCATION OF WILL,
COLLISION. See Ship, 1.
COMPANY 1. A company incorporated for the working of collieries contracted with A. to erect a pumping engine and machinery for that purpose, 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. — South of Ireland Colliery Co. v. Waddle, Law Rep. 3 C. P. 463.
2. Directors of a joint-stock company, who neglect its rules, are liable to make good to the shareholders any loss occasioned thereby; their liability in this respect does not differ from that of ordinary trustees. — Turquand v. Marshall, Law Rep. 6 Eq. 112.
3. Where the functions of a corporation have ceased, the managers of the corporation are bound to account for all moneys belonging to the corporation, and, when such moneys are improperly retained, to make a decree on the petition of a shareholder on behalf of himself and the other shareholders, for the division of the moneys among them. — Cramer v. Bird, Law Rep. 6 Eq. 143.
4. On the 9th of May, the plaintiff, through his brokers, sold shares in a company to the defendants, stock jobbers, the settling day being the 15th of May. On the 10th, the company stopped payment, and the petition for winding up was presented on the 11th. The purchase money was paid by the defendants on the 15th ; the certificates of the shares were then delivered by the plaintiff and transfers were executed by him to seventeen persons as nominees of the defendants. The transfers could not be registered on account of the winding up. Held, on a bill for specific performance, that the defendants were bound to fulfil the contract, to repay the amount of calls paid by the plaintiff, and to indemnify him against future calls. — Coles v. Bristowe, Law Rep. 6 Eq. 149. See MISREPRESENTATION; ULTRA VIRES.
CONFLICT OF Laws. A bill of exchange, drawn in France upon and accepted by the drawee in London, was indorsed in blank in France; such indorsement does not, by the