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DIGEST OF THE ENGLISH LAW REPORTS FOR NOVEM.
BER AND DECEMBER, 1868, AND JANUARY, FEBRUARY, MARCH, AND APRIL, 1869.
ACTION. THE plaintiff, in common with other inhabitants of a district, enjoyed a customary right to have water from a certain spout. The defendant, being the owner of the land through which came the stream supplying the spout, on various occasions prevented sufficient water reaching the spout to supply the inhabitants. The plaintiff, however, had never suffered any actual inconvenience. Held, nevertheless, that the plaintiff could maintain an action for diverting the water, on the ground that the defendant's acts might furnish evidence in derogation of his rights. Harrop v. Hirst, Law Rep. 4 Ex. 43.
See BILL OF LADING; MONEY HAD AND RECEIVED. . ADMINISTRATION. See CONFLICT OF Laws; EXECUTOR AND ADMINISTRATOR,
2; NULLITY OF MARRIAGE; PRINCIPAL AND SURETY, 1; Trust, 1; WILL, 5.
ADMIRALTY. 1. An American citizen, serving on board a British ship, killed another American citizen serving on board the same ship, the ship being at the time in the river Garonne, within French territory, at a place below bridges, where the tide ebbed and flowed, and great ships went. Held, that the offence was cognizable in the Admiralty. - The Queen v. Anderson, Law Rep. 1 C. C. 161.
2. In a suit to recover damages by the executor of a person killed by a collision; Held, though with doubt, that the Court of Admiralty had jurisdiction under Lord Campbell's Act, and the Admiralty Act, 1861, $ 7.— The Guldfare, Law Rep. 2 Adm. & Ecc. 325.
See BILL OF LADING; BOTTOMRY BOND; COLLISION, 1, 3–5; FREIGHT, 1; INTERROGATORIES, 2; SHIP, 2-4.
ADULTERY. — See DIVORCE, 2-4; INJUNCTION, 5.
AGREEMENT. -- See CONTRACT.
ALIMONY. 1. Alimony pendente lite was allotted on the average annual earnings of a husband, a master mariner, though at the time of his answering the petition for alimony he was temporarily out of employment. — Thompson v. Thompson, Law Rep. 1 P. & D. 553. . 2. Where husband and wife have been living apart for many years, and the
wife has supported herself, and is still able to do so, alimony pendente lite will not be allowed. — Burrows v. Burrows, Law Rep. 1 P. & D. 554; George v. George, Ib. See DIVORCE, 3.
ANCIENT LIGHT. — See LIGHT.
APPEAL. — See Costs; INJUNCTION, 6. .
APPRENTICE. — See MASTER AND SERVANT.
ARBITRATOR. - See AWARD.
ARREST. A person accused of crime, who attends under his recognizances at the hearing of the charge against himself, is privileged from arrest on civil process during his return home, after having been remanded on bail. - Gilpin v. Cohen, Law Rep. 4 Ex. 131.
ASSIGNMENT. A builder assigned to T. £200 of what should be coming to him under a contract with A. The contract provided that if the building was not finished on a certain day, A. might employ another builder to complete it. When the assignment was made, the time for completion had expired. Soon after the builder conveyed his property to a trustee for the benefit of his creditors, and the trustee completed the building with his own money, and was repaid by A. Allowing this repayment as proper, nothing remained due on the contract. T. then filed his bill against A. to enforce payment of the £200. Held, that the payment by A. to the trustee was proper, and that the bill should be dismissed. - Tooth v. Hallett, Law Rep. 4 Ch. 242.
See BANKRUPTCY, 1, 2; CONVERSION; COVENANT, 3; MORTGAGE, 1; PARTNERSHIP, 2.
ATTORNEY. 1. The plaintiff recovered a verdict for 251. against the defendant. The plaintiff's attorney informed the defendant's attorney that he had a lien for costs to a large amount on the damages recovered by the plaintiff. Subsequently, a rule nisi for a new trial was granted on the ground that the verdict was against evidence. The plaintiff and defendant, without the knowledge of their attorneys, settled the action, the defendant paying 101. to the plaintiff, who was very poor, in discharge of all claims for damages and costs. Held, that the plaintiff's attorney was not entitled to compel the defendant to pay his costs, as the result of the proceedings was doubtful at the time of the settlement, and there was, therefore, no existing fund on which the lien for costs had attached, and as the settlement was not shown to be fraudulent. — Ex parte Morrison, Law Rep. 4 Q. B. 153.
2. Where a solicitor is not the general agent of his client, so as to be able to receive the client's money at all times without his knowledge, but has only received money for him in respect of separate transactions, and his client was
Helenee, who conting in a suit Law Rep.
aware of these at the time, and knew what was to be received, the solicitor is entitled to have his bill for costs paid, though he has not kept accounts of all the money received. - In re Lee, Law Rep. 4 Ch. 43.
3. The plaintiff in a suit became bankrupt, and the suit was revived by his assignee, who employed a different solicitor. A decree was afterwards made. Held, that the solicitor of the original plaintiff must produce the documents in his possession which were necessary for drawing up the decree, notwithstanding his lien on them for costs, though the documents were not strictly in evidence in the case. — Simmonds v. Great Eastern Railway Co., Law Rep. 3 Ch. 797.
4. An attorney who has been discharged by his client can set up a lien for costs as a reason for not producing or delivering up the papers on which he claims the lien, though his client be thereby embarrassed, and this lien extends to all costs due him from the client. Secus, if the attorney discharges himself. In re Faithfull, Law Rep. 6 Eq. 325. See CONTEMPT, 1; HUSBAND AND WIFE, 2; LUNATIC, 1.
AVERAGE. — See INSURANCE, 2.
AWARD. 1. Evidence of an arbitrator is admissible in explanation of his award, and if it appears that he has mistaken either the subject matter referred to him, or the legal principle affecting the basis on which the award is made, the award will be set aside or referred back to him. — In re Dare Valley Railway Co., Law Rep. 6 Eq. 429. . 2. Semble (per KELLY, C.B., MARTIN and CHANNELL, BB.), that it may be shown by the evidence of an arbitrator that the award includes an amount for something over which he had no jurisdiction. - Duke of Buccleuch v. Metropolitan Board of Works, Law Rep. 3 Ex. 306.
3. The plaintiff agreed to row a race with K., each to deposit a stake with the defendant, and "the decision of the referee to be final.” There was a default in the start, and the referee ordered K. to inform the plaintiff that, if he did not start, K. was to row over the course without him. K. rowed over the course without communicating this order to the plaintiff or giving him any opportunity to start, and the referee, without any inquiry, ordered the stakes paid to K. Held, that the referee's order was conditional on its being communicated to the plaintiff; that, never having been communicated, there never was such a start or race as was contemplated ; that, therefore, the referee's jurisdiction to award the stakes had not attached; that his decision was not final; and that the plaintiff was entitled to recover his deposit from the defendant. - Sadler v. Smith, Law Rep. 4. Q. B. 214.
BAILMENT. — See COLLISION, 4.
BANK. - See INTEREST, 2.
BANKRUPTCY. 1. By statute, if the goods of a trader are levied on and sold under an execution for more than £50, he is to be deemed to have committed an act of bankruptcy; and if within fourteen days from the sale he is adjudged a bankrupt, the money is to be paid to the assignee in bankruptcy. An execution was levied on
the goods of a trader, and he, having already ceased to carry on business, in consideration of the withdrawal of the execution, assigned the whole of his property to the judgment creditor. The jury found the transaction bona fide. Held, that as the creditors could have interfered and taken the proceeds of the execution, there was no sufficient equivalent for the assignment, which was therefore void, and an act of bankruptcy (Exch. Ch.). — Woodhouse v. Murray, Law Rep. 4 Q. B. 27.
2. An assignment of the debtor's property for the benefit of creditors may be given in evidence as an act of bankruptcy, though unstamped and unregistered. - Ex parte Squire, Law Rep. 4 Ch. 47.
3. A. in Charleston, applied to B., in Liverpool, to raise funds to buy cotton for sale in England, at the risk of certain speculators for whom A. acted, and B. applied to an English bank for an advance for that purpose. Accordingly, A. drew on an American branch of the bank for the funds needed, bought the cotton, consigned it to B., drew bills on him and indorsed them to the bank. The cotton was consigned to B., who accepted the bills drawn by A., and
A. indorsed the bills of lading to the bank for security. Afterwards A. and B. both became insolvent. The value of the cotton was insufficient to cover B.'s acceptances. Held, that B. was not the sole owner of the cotton, and therefore that the bank could prove against his estate, without giving up their security. — Ex parte English and American Bank, Law Rep. 4 Ch. 49.
4. Company A. guaranteed bills for £35,000 accepted by company B., and company B. assigned to company A. certain property as security for the payment of the bills. Both companies were wound up, and the holders of the bills, who had no notice of the security, proved against both estates for the whole amount, and recovered from company A. £21,000, and from company B. £5,250; afterward the security was realized, and produced £23,500. Held, that the proceeds of the security were part of the estate of company A., and were divisible among its creditors. — Loders' Case, Law Rep. 6 Eq. 491.
5. A bank permitted A. to overdraw his account, on having a limited guaranty from a surety, which provided that all dividends, compositions, and payments received on account of A. should be applied as payments in gross, and that the guaranty should apply to and secure any ultimate balance due to the bank. A., when indebted to the bank more than the amount of the guaranty, compounded with his creditors, and the surety paid the amount of the guaranty. Held, that the rule was the same as in bankruptcy, and that the bank was entitled to receive dividends on the full amount of their debt, till the sums so received, added to the amount paid by the surety, should equal the whole amount due. — Midland Banking Co. v. Chambers, Law Rep. 7 Eq. 179...
6. B., of Barbadoes, was in the habit of drawing bills upon W., of London, and selling the drafts, and then of buying bills, and remitting them to W., to keep him in funds to meet his acceptances of the drafts so drawn on him, the amounts being carried into general account. W. stopped payment; at the time, undue acceptances of his were running to the extent of £25,000. On the news arriving in Barbadoes, B. also stopped payment. After the stoppage of W., drafts arrived in London for acceptance to the amount of £16,000, which were dishonored, and remittances arrived to the amount of £12,000. W. was afterwards made bankrupt. Held, that there was no specific appropriation of the
remittances to cover the drafts sent home by the same mails for acceptance, but that the remittances must be carried into general account between B. and W.; and that, so far as they were in specie, or to be treated as in specie, at the time of the bankruptcy, the principle of Ex parte Waring, 19 Ves. 345, must apply. – Trimingham v. Maud, Law Rep. 7 Eq. 201. .
7. An adjudication of bankruptcy and a discharge, in England, does not supersede the authority of a court at Barbadoes to inquire into and punish offences against the insolvent law of that island, in a proceeding had there previous to the adjudication in England, the insolvent having again placed himself within the jurisdiction of that court. — Gill v. Barron, Law Rep. 2 P. C. 157.
See ATTORNEY, 3; ESCAPE; EVIDENCE; FRAUDULENT CONVEYANCE; LEGACY, 1; MARSHALLING OF ASSETS.
BENEFIT SOCIETY. - See FRIENDLY SOCIETY.
BILL OF LADING. The assignees for value of a bill of lading can sue ship-owners in the admiralty for neglect in properly carrying the goods, on the grounds, (1) under 24 Vict. c. 10, $ 6, and 18 & 19 Vict. c. 111, § 1, of breach of contract; (2) under the former section, of negligence. — The Figlia Maggiore, Law Rep. 2 Adm. & Ecc. 106. See FREIGHT, 2, 4; SALE, 1.
BILLS AND NOTES. 1. Semble, that the following document: “July 15, 1865. On 1st of August next, please pay to A. or order £600, on account of moneys advanced by me to the S. company. To Mr. W., official liquidator of the company," is a negotiable bill of exchange. — Griffin v. Weatherby, Law Rep. 3 Q. B. 753.
2. The following promissory note was signed by the secretary of a corporation: “On demand, I promise to pay A. fifteen hundred pounds. For Mistler Railway Company. John Sizer, secretary." Held (per KELLY, C. B. and Pigott, B. ; CLEASBY, B., dubitante), that John Sizer was not personally liable. - Alexander v. Sizer, Law Rep. 4 Ex. 102.
3. The directors of a company gave to J. H., for value, an instrument under the company's seal, headed “ debenture," by which the company "undertake to pay to the order of J. H., on 1st July, 1867,” £1,000, with interest halfyearly, on presentation of the annexed coupons. Held, that an indorsee for value of this instrument was entitled to prove on it against the company free from equities between H. and the company. Semble, that the instrument was a promissory note. - In re General Estates Co., Law Rep. 3 Ch. 758.
4. One who takes up an accepted bill supra protest for the honor of the drawer can sue the acceptor, and the acceptor cannot plead in defence a right of set-off against the drawer. — In re Overend, Gurney, & Co. Ex parte Swan, Law Rep. 6 Eq. 344.
5. A bank, the holder of a bill of exchange at maturity, commenced actions against B., the acceptor, and C., an indorser. On March 21, C. paid the amount due, and proceedings were ordered to be stayed in the action against him on para ment of costs; these were paid on April 13, and the bank then gave the bill to C., who delivered it to the plaintiffs in payment of a debt due from him. Judgment was