DIGEST OF THE ENGLISH LAW REPORTS FOR MAY, JUNE, AND JULY, 1874.

ACTION.

The defendant purchased certain shares in a company from the plaintiff, and directed that they should be transferred and registered in the name of his son G., who was an infant, of which fact the plaintiff was ignorant. Subsequently G. brought an action by his father, as next friend, against the plaintiff, charging him with fraud in selling the shares; and the action was compromised on the terms of G. withdrawing all charges of fraud, and having the purchase-money repaid to him. The company was wound up, and the plaintiff's name was placed upon the list of contributories in place of G's. The plaintiff then filed a bill alleging that the defendant was the real purchaser of said shares, of which fact he was not aware when he entered into said compromise; and he prayed that it might be declared that the defendant was the real owner of the shares, and was liable to indemnify the plaintiff from all liability in respect of them. Held, that said compromise was a bar to the suit. Maynard v. Eaton, L. R. 9 Ch. 414.

See COVENANT, 2; SPECIFIC PERFORMANCE.

ADMINISTRATION. See EXECUTORS AND ADMINISTRATORS.

1. A testator bequeathed his property to K., on condition that he should pay out of the rents and profits a certain annuity. K., who had paid the annuity for sixteen years, gave a check for a half-yearly instalment. The check was dishonored, and the annuitant filed a bill for a receiver, and for a sale if the annuity was not paid. Bill dismissed on the ground that, as the estate was sufficient, the annuitant might have recovered his annuity by distress, or he might have sued on the check. ·Kelsey v. Kelsey, L. R. 17 Eq. 495.

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2. An annuity given to a trustee for as long as he should continue to execute the office of trustee under a will, was held to cease with the payment of the trust property to a person absolutely entitled. - Hull v. Christian, L. R. 17 Eq. 546.

ANTICIPATION.

- See LEGACY, 2.

APPOINTMENT.

1. A testatrix, who had power of appointment in favor of five persons, or their respective issue, gave three of them £5 each, and gave all the rest and residue of her property, of whatever kind and wherever situate, and over which she had any power of appointment, to the other two. Held, that the legacies of £5 were

charged upon both the testatrix's personal property and the property over which she had power of appointment, and that therefore the power was well exercised. - Gainsford v. Dunn, L. R. 17 Eq. 405.

2. A testatrix appointed "all funds and properties, whatsoever or wheresoever, which have been or shall be purchased out of the savings of property to which I have been or shall be entitled for my separate use," to certain perHeld, that a balance at the testatrix's bankers, which arose from savings from her separate estate, did not pass under the appointment. · Askew v. Rooth, L. R. 17 Eq. 426.

sons.

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3. R. had a power of appointment over two funds of £37,000 and £800 consols. R. made several appointments, and finally made a deed revoking all prior appointments, and directing his trustees to stand possessed of said sums of £37,000 and £800 consols, or other the stores, funds, and securities of which the same now consist, or hereafter may consist," upon trust as to £7,000 consols for A. R. then made similar appointments for other persons of sums amounting to £37,000 consols, and he appointed the residue to C. At the date of said deed the trust-funds had been reduced by sales and reinvestments by the trustees to £27,000 consols and £8000 cash. Held, that the appointment in favor of C. was of the residue, and not of a specific sum, and therefore failed altogether. De Lisle v. Hodges, L. R. 17 Eq. 440.

See TRUST, 2.

ASSIGNEE.

See DISTRESS; Lease, 2.

BAITING ANIMALS.

A match took place between two dogs, at £25 a side, as to which could take the greatest number of rabbits by running after them, in a field so walled round that the rabbits could not escape. Held, that such recreation was not "baiting animals.". · Pitts v. Millar, L. R. 9 Q. B. 380.

BANKRUPTCY.

1. A debtor against whom execution had been issued handed to the sheriff on July 24th a bill of exchange, a check, and three bank-bills, in part payment of the debt, and the remainder was paid by another person in money. The creditor assented to this arrangement. On July 26th the debtor filed a petition in liquidation, and an injunction was granted restraining the creditor and sheriff from proceeding farther; but the sheriff delivered the bill, check, bank-bills, and money to the creditor on July 28th. The trustee, under the liquidation, requested that the bill of exchange, check, and bank-bills be delivered up to him. Held, that the bill of exchange, check, and bank-notes were delivered under pressure, and might be retained by the creditor. - Ex parte Brooke. In re Hassall, L. R. 9 Ch. 301.

2. By statute, a husband shall not by reason of marriage be liable for the debts of his wife contracted before marriage; but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy, such debts as if she had continued unmarried. Judgment was obtained against a married woman for a debt contracted before marriage. The woman had no separate property. Held, that the woman could not be adjudged a bankrupt. - Ex parte Holland. In re Heneage, L. R. 9 Ch. 307.

3. An action was brought upon an overdue bill against the acceptors. The defendants obtained leave to defend the suit, on paying £880 into court to abide the event of the suit. The defendants subsequently filed a petition in liquidation. Held, that the plaintiff in said action was a secured creditor, and that an inquiry must be made to ascertain how much of said £880 he was entitled - Ex parte Banner. In re Keyworth, L. R. 9 Ch. 379.

to.

BEQUEST.-See APPOINTMENT, 1, 2; ILLEGITIMATE CHILDREN; LEGACY DUTY; MARSHALLING ASSETS; WILL.

CARRIER.

The defendant's horse was sent to S. on the plaintiff's railway, and on its arrival was sent to a livery stable, as there was no one at the station to receive it, and the plaintiff had no accommodation for horses. The defendant's servant came soon afterwards and demanded the horse, which the stable-keeper said he might have on payment of 1s. 6d. The servant went away, and the defendant came to the station, where the station-master said he would pay all charges; but the defendant went away without the horse, and subsequently refused to receive it unless he were paid for his loss of time. The horse remained at the stable four months, incurring a bill of £17, which the plaintiff paid, and then sent the horse to the defendant, who received it. Held, that the defendant was liable for all of said livery charges. - Great Northern Railway v. Swaffield, L. R. 9 Ex.

132.

See STATUTE, 1.

1. A steam ferry-boat ran across a river in a dense fog, with the knowledge that there were three vessels in its path, and, though using all ordinary care, ran into one of said vessels. Held, that the ferry-boat alone was to blame for the collision. The Lancashire, L. R. 4 Ad. & Ec. 198.

2. In a collision suit the plaintiff must begin, although the only defence is inevitable accident.

It is the duty of a steam-vessel in a dense fog to come to anchor, if over a proper anchorage ground. It is not sufficient for the vessel to go dead slow. The Otter, L. R. 4 Ad. & Ec. 203.

COMMON.

A commoner pur cause de vicinage cannot distrain the cattle of another commoner, because they come upon the common by color of right. — Cape v. Scott, L. R. 9 Q. B. 269.

COMMON CARRIER. See STATUTE, 1.

COMPANY.

A company, which had exhausted its capital, raised new capital by issuing shares, which were to be subject to calls for the purpose only of payment of the company's debts. The original shares were fully paid up; but 6s. only were paid on the new shares of £1 each when the company was wound up. A surplus remained after all debts were paid. Held, that the surplus must be divided between the old and the new shareholders in proportion to the amounts they had respectively paid on their shares. In re Eclipse Gold Mining Co., L. R. 17. Eq. 490.

CONSTRUCTION. - See APPOINTMENT; CONTRACT; COVENANT; EXECUTORS AND ADMINISTRATORS; ILLEGITIMATE CHILDREN; LEASE, 1; LEGACY; LEGACY DUTY; MARSHALLING ASSETS.

CONTRACT.

1. Five persons contracted to build a harbor, and soon afterward one of the contractors died. The four survivors then signed an agreement, in which the executors of the other contractor were parties; but blanks were left for their names until they should be appointed. The deceased contractor had named three persons as executors; but one disclaimed, and the other two proved the will, and subsequently signed said agreement. The four surviving contractors offered evidence to show that they would not have signed said agreement if they had known that the third person named as executor, as aforesaid, would disclaim. Held, that the estate of the deceased testator was entitled to share in the profits of said contract, which were to be ascertained when said contract was completed; and that said agreement between the surviving contractors and the two executors of the deceased contractor was binding, and that the evidence - offered was inadmissible. — McClean v. Kennard, L. R. 9 Ch. 336.

2. The defendants caused plans and specifications of a bridge to be prepared by an engineer. The plaintiff contracted to build the bridge in accordance with said plans and specifications, which were shown to him by the defendants. Held, that there was no implied contract, by the defendants, that the bridge could be erected in accordance with said plans and specifications. Thorn v. Mayor of the City of London, L. R. 9 Ex. 163.

3. The defendant contracted to sell the plaintiffs 250 tons of iron, half to be delivered in two weeks, remainder in four weeks. Payment, net cash fourteen days after delivery of each parcel. The defendant failed to deliver the first half of the iron until long after the time agreed upon, and, when he demanded payment of the plaintiffs, they refused, claiming to set off damages for the defendant's breach of contract. The plaintiffs subsequently demanded delivery of the remaining 125 tons, but the defendant refused to deliver. Held, that the plaintiffs had not repudiated the contract by refusing to pay for the first 125 tons of iron. - Freeth v. Burr, L. R. 9 C. P. 208.

4. The plaintiff, a weaver, worked for the defendants, and received wages regulated by the number of pieces which he wove and delivered to the defendants. His wages were ascertained and fixed on Thursday in each week, but were not paid until Saturday. The plaintiff was obliged by his contract to give fourteen days' notice before leaving, such notice to be given at the time of booking

up on Thursday. If he left without notice, he was to forfeit all wages due. The plaintiff earned 15s., in a week ending Thursday, April 25th, and such sum was fixed at that time; and he then worked the afternoon of Thursday and the morning of Friday, earning 7s. during that time; and he left the defendants' service on said Friday, without giving any notice. Held, that the plaintiff forfeited the whole 22s. Walsh v. Walley, L. R. 9 Q. B. 367.

See ANNUITY, 2; CARRIER; Damages; FRAUDS, STATUTE OF; INTEREST; TRUST, 2.

COVENANT.

1. Three mines of coal, of which A. was the upper, B. the middle, and C. the lower, were demised to the defendant, who covenanted to work the mines with their utmost care, with a competent number of workmen, and in the most effectual manner, and according to the usual practice of carrying on collieries with effect. The lessor filed a bill, alleging that the defendant had abandoned working the A. mine and had worked the C. mine beyond the B. mine; and praying that the defendant be restrained from working the C. mine until he had extended the B. mine to the same point as the C. mine, and that he be restrained from working the B. and C. mines without working the A. mine. It appeared that the defendant had worked the mines as well as practicable, and according to the usual manner. Injunction refused. - Lord Abinger v. Ashton, L. R. 17 Eq. 358.

2. In 1844, the defendant leased certain coal mines for twenty-one years, and a portion of the mines were worked out in September, 1845. In October, 1845, the defendant sold the land containing the worked-out mine, with covenants of title, quiet enjoyment, and against incumbrances, to J., who sold to the plaintiff in 1846. In 1848, within twenty years before action brought, the lessees under said lease entered the mine under the plaintiff's land, and removed some fire-clay and several loose pieces of coal. In 1865, the plaintiff's house subsided in consequence of the mining operations carried on before 1846. Held (by BRAMWELL and CLEASBY, BB.; KELLY, C.B., dissenting), that the fact that the coal was worked out before the conveyance to J. was no breach of covenant for title, as such coal formed no part of the land which was sold; that the subsistence of said lease did not constitute a breach of covenant; and that, if there was any breach, it was complete at the time of the conveyance to J., and was barred by the Statute of Limitations, as the subsidence in 1865 gave no new cause of action. - Spoor v. Green, L. R. 9 Ex. 99.

3. A lessee covenanted that he would not assign the premises without the written consent of the lessor, such consent not being arbitrarily withheld; provided that if the lessor should assign without such consent, “but such consent is not to be arbitrarily withheld," then it should be lawful for the lessor to enter. Held, that there was no covenant on the part of the lessor not to withhold his consent arbitrarily; but that, if he did so refuse consent, the lessee might assign without his consent. Treloar v. Bigge, L. R. 9 Ex. 151. See CONTRACT, 2; EASEMENT, 1; Lease, 1.

DAMAGES.

The plaintiff was the lessee of an inn, part of which was underlet to the de