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And this must probably be taken as a necessary limitation of the rule laid down. The mere proof of the happening of the accident shows nothing. It may have happened from a thousand causes beside that of negligence in the carrier. For example, it may have been the direct consequence of gross negligence on the part of the plaintiff. How, then, can any presumption be said to arise? The presumption must arise only on some proof implying negligence on the part of the defendants. Substantially, the same rule is laid down by HOLMES, J., in Sawyer v. Hann. of St. Jo. R.R. Co.1
137 Mo. 240. In Bird. v. Great N. R. Co., 28 L. J. Exch. 155, POLLOCK, C. B., says that. whether proof of the occurrence of the injury “makes out a prima facie case for the plaintiff or not, depends all on the nature of the accident: as, for instance, if it arises from a collision of different trains on the same line, then it may be so. Here it was otherwise: the accident was of a nature consistent with the absence of negligence." See, too, S. P. Dawson v. Manchester, Sheffield d. Lincolnshire Railway Co., 5 L. T. 682 (Exch.); Great Western Railway Co. of Canada v. Braid ; Same v. Fawcett, 1 Moore P. C. C. N. 8. 101.
DIGEST OF THE ENGLISH LAW REPORTS FOR MAY,
JUNE, AND JULY, 1869.
ACCOUNT. A., the owner of a patent for a loom, agreed with B. that B. should make and sell such looms; A. to receive as a royalty, not to exceed £20, the amount for which the looms were sold above £45. B.'s charges were not to exceed £45, and one-tenth of the royalty. Held, that A. could not bring a bill in equity for an account against B., as there was no agency in which a fiduciary position was created.
A single receipt by B. of money due to A. did not alter the case. — Moxon v.
ACQUIESCENCE. — See BANK.
ADMIRALTY. - See COLLISION ; SALVAGE
ADULTERY. - See ALIMONY, 2. .
AFFIDAVIT. — See EVIDENCE, 3; INTERPLEADER.
MORTGAGE, 4; REBELLION.
ALIMONY. 1. A respondent is not entitled to alimony while she is living with the corespondent as his wife, and supported by him. — Holt v. Holt, L. R., 1 P. & D. 610.
2. The court refused to make any order for alimony, pendente lite, after a decree nisi had been obtained for a dissolution of marriage by reason of the wife's adultery, the wife having allowed nearly a year to elapse after the commencement of the suit before she filed her petition for alimony. – Noblett v. Noblett, L. R., 1 P. & D. 651.
AMENDMENT. - See WILL, 6.
ANCIENT Light. — See Light.
APPOINTMENT. . 1. A leasehold for lives was settled upon trust for A. for life, with remainder to defendant. A. renewed the lease to himself and his heirs, and purchased the fee which was conveyed in trust for him. Then he made an oral demise for a year, and died between two rent days. Held (reversing the decision of STUART, V.C.), that the rent was not apportionable either under St. 11 Geo. II. c. 19, or 4 & 5 Will. IV. c. 22. — Mills v. Trumper, L. R. 4 Ch. 320; s. C. L. R. 1 Eq. 320; 1 Am. Law Rev. 168.
2. By a will which came into operation after the passing of the Apportionment Act, 4 & 5 Will. IV. c. 22, real estate was devised to A. for life, subject to impeachment for waste, with remainder to B. for life without impeachment for waste, with remainders over. With the sanction of the court, timber on the estate was cut down and sold, and the proceeds of sale invested; and the dividends were ordered to be paid to A. during his life: Held, that the whole of a dividend which accrued shortly after the death of A. was payable to B., and could not be apportioned between him and the representatives of A.—Jodrell v. Jodrell, L. R. 7 Eq. 461. See MARSHALLING OF ASSETS.
ARBITRATION. — See AWARD; ERROR.
ARTICLES. — See CONTRACT.
ASSAULT. Counts in an indictment for “unlawfully and maliciously wounding,” and for “ unlawfully and maliciously inflicting grievous bodily harm,” will each support a conviction of an assault, though the word “assault” is not used in either. — The Queen v. Taylor, L. R. 1 C. C. 194.
AssuMPSIT. — See AWARD, 2.
ATTORNEY. When an attorney has been struck off the roll for a fraudulent misappropriation of moneys of a client intrusted to him for investment, it is a condition precedent to his being restored that he should have used the best efforts in his power to make full restitution. —- Re Poole, L. R. 4 C. P. 350.
See MORTGAGE, 4; PARTNERSHIP, 1.
AWARD. 1. The master made an award in favor of the defendant by mistake, from omitting to take account of an advance by the plaintiff to the defendant, which had been duly proved before the master, but which, at the time of making the award, he overlooked. The mistake was admitted by both parties, and the master stated the facts of the case to the court. Held, that the court had power to refer the award back to the master, on motion. — Flynn v. Robertson, L. R. 4 C. P. 324.
2. J., the outgoing tenant of a farm, and F., the incoming tenant, referred the amount to be paid by F. to J. to two valuers, who made a valuation. F. paid part and gave his note for the rest, and entered into possession. Later, F. found that errors had been made in the valuation, by including items which, by the custom of the country, ought not to have been valued to him, and items which did not exist. He nevertheless paid his note; but afterwards, without making any demand or informing J. of the nature of his complaint against the valuation, he sued J. for money had and received. Held, that F. could not recover. — Freeman v. Jeffries, L. R. 4 Exch. 189. See ERROR.
BAILMENT. — See DAMAGES; PLEDGE.
BANK. A bank-account which was largely overdrawn, was, for the half-year ending June, 1867, charged with interest at 5 per cent. and a commission of £500. The pass-book balanced on this footing was sent to the customer, who raised no objection to the charges. He died December, 1867. Held, that the charge of £500 for said half-year had been acquiesced in and was valid, but that this could not be inferred for subsequent half years. Also, that the right of the bank to charge compound interest ended with the death of the customer. - Williamson v. Williamson, L. R. 7 Eq. 542.
BANKRUPTCY. 1. A delivery of goods, to be an act of bankruptcy within 12 & 13 Vict. c. 106, s. 67, must pass, or purport to pass, an interest in the goods. — Isitt v. Beeston, L. R. 4 Exch. 159.
2. A. and B. were partners, and B. fraudulently indorsed certain bills belonging to the partnership to C. in payment of a private debt, C. being aware of the fraud. B. having become bankrupt, his assignees disaffirmed the transaction as a fraudulent preference, and joined with A, in an action against C. Held, that the assignees were entitled to disaffirm B.'s act, though dealing only with partnership property; and that they could rightly join with A. in the action. — Heilbut v. Nevill, L. R. 4 C. P. 354.
3. The husband of a devisee in remainder had issue, became bankrupt, and was discharged, before the estate vested in possession. Held, that his inchoate right of curtesy did not accrue until after his discharge, and so did not pass to his assignees. — Gibbins v. Eyden, L. R. 7 Eq. 371.
4. M. borrowed money from the R. Company, giving them his acceptances and depositing shares as security. When the bills became due, the company sent M. fresh drafts for acceptance, with a letter stating them to be in place of those falling due. M. accepted the drafts in compliance with the letter. M. died insolvent, and the R. Company became insolvent also. Both sets of bills had been negotiated and were outstanding. Held, that the holders of the first set had no claim to payment out of the deposited shares. The letter and M.'s acts put an end to the security in respect of the first set of bills. — In re General Rolling Stock Co. Ex parte Alliance Bank, L. R. 4 Ch. 423.
5. L. deposited with a company securities for the payment of any money which should be owing by L. to them on a general account. Then the company accepted bills for L.'s accommodation. Before said bills, which were L.'s only debts to the company, were paid, both L. and the company became insolvent. Held, that neither the bill-holders nor L. were entitled to have the bills paid out of the securities. — Levi & Co.'s Case, L. R. 7 Eq. 449.
6. A bank permitted A. to overdraw his account, on having a guaranty to the extent of £300 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 guarantee should apply to and secure any ultimate balance due to the bank. A., when indebted to the bank for £410, compounded with his creditors, the assets to be administered as in bankruptcy. The surety was secured by a mortgage from A., which was realized, and he paid the bank £300 from the proceeds. Held, that the bank was entitled to receive dividends on the whole
£410, until the sums so received, added to the £300, should equal the whole amount due. — Midland Banking Co. v. Chambers, L. R. 4 Ch. 398; 8. c. L. R. 7 Eq. 179; 3 Am. Law Rev. 683. See COMPANY, 1, 3; FRAUDULENT CONVEYANCE ; Trust, 1; WIFE's EQUITY.
BIGAMY. - See DEATH, 1.
BILL OF LADING. — See CARRIER, 1.
BOND. G., an officer twenty-six years old, gave a bond for £1000 to J., a barrister thirty-two years old, without consideration; and at J.'s instance wrote him a letter stating that, for services which were recited, he desired to give J. a promise to pay that sum. G. testified that he thought that he was signing something for J.'s accommodation, and that J. would indemnify him. J. afterwards told G. that G. was under no liability for him; but later he assigned the bond and letter to B., who took bona fide and for value. B. refrained from suing on the bond, on the strength of a promise by G. to pay as soon as he should come into certain property, G. not knowing his right to have the bond set aside. Held, that G. had a right to have both J. and B. restrained from suing on the bond. — Graham v. Johnson, L. R. 8 Eq. 36. See EXECUTOR AND ADMINISTRATOR, 3.
BURDEN OF PROOF. — See Will, 1.
CARRIER. 1. A parcel containing pictures was delivered to the defendants, common carriers, who gave a bill of lading by which they were not to be liable for loss by railway accidents, among other exemptions. By the Carriers' Act, s. 1, no common carrier by land is liable for pictures, inter alia, contained in any package delivered to be carried, when the value exceeds £10, unless at the time of the delivery, &c., the nature and value be declared and an increased charge paid. By s. 6, nothing in the act is to annul or in anywise affect any special contract between a common carrier and any other parties for the conveyance of goods. The value of said pictures was not declared. Held, that the defendants received said pictures as common carriers, in spite of the exemption in the bill of lading, and that, as said exemption was not inconsistent with the further exemption in s. 1 of the Carriers' Act, s. 6 did not apply, and the defendants were not liable. (Exch. Ch.) — Baxendale v. Great Eastern Railway Co., L. R. 4 Q. B. 244.
2. A railway company refused to carry, free of charge, a “spring horse" (a substitute for a rocking-horse), weighing 78 lbs., and 44 inches long, tendered to them by a passenger, who was entitled to take with him 112 lbs. weight of “ordinary” or “personal” luggage. Held, that the company had a right to make an additional charge. - Hudston v. Midland Railway Co., L. R. 4 Q. B. 366.
3. A carrier of passengers for hire does not warrant that the carriage in which a passenger travels is roadworthy. He is bound to use all vigilance to insure safety, but is not liable for a defect which could not be detected, and which arises from no fault of the manufacturer. — (Exch. Ch.) Readhead v. Midland Railway Co., L. R. 4 Q. B. 379; s. c. 2 Q. B. 412; 2 Am. Law Rev. 107. .