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DIGEST OF THE ENGLISH LAW REPORTS FOR MAY,
JUNE, AND JULY, 1868.
ACCOUNT. Plaintiff agreed to act as defendant's manager, receiving 75 per cent per annum of the profits of the business, to be made up to £500 in any year in which the said share of profits should be less than that sum. The works were valued at the same time. Six years later the defendant sold them at a gain of £47,916. In taking the account, under the above agreement, held, that the defendant was not entitled to charge interest on his capital, nor interest on old debts, nor the £500 guaranteed to the plaintiffs in the profit and loss account. That he might charge them the depreciation, from the waste of machinery and running out of his lease, calculated on the valuation of the works. That the plaintiff could not charge 71 per cent on the gain at which the works were sold as profits of that year. — Rishton v. Grissell, Law Rep. 5 Eq. 326.
See EQUITY PLEADING AND PRACTICE, 1; LUNATIC; PATENT, 1.
ADEMPTION. A testator bequeathed the income of certain shares specifically, and bequeathed the shares to his residuary legatee. After the date of his will, he was found a lunatic; and, by an order in lunacy, the shares were directed to be sold, and the proceeds were invested in consols. There was no order as to the ownership of the proceeds. Held, that the sale was a conversion, and adeemed the legacy of income which fell into the residue. — Jones v. Green, Law Rep. 5 Eq.
ADMINISTRATION. 1. A testator died domiciled in New South Wales, and the court there granted probate of his will to A. as executrix, according to the tenor. A. was not so by the law of England. Held, that the grant of the court of the domicile ought to be followed. Administration with the will annexed was granted to A., not as executrix, but, under St. 20 & 21 Vict. c. 77, $ 73, to her as the person entitled to administer under the grant of the court of the country of domicile. — In the Goods of Earl, Law Rep. 1 P. & D. 450.
2. A. was appointed executor, and in case of his absence on foreign duty," B. was made executrix. A. was in England at the death of testator, but was absent on foreign service in the royal navy when probate was applied for, and was likely to be absent for some years. Probate was granted to B. - In the Goods of Langford, Law Rep. 1 P. & D. 458.
See BANKER; ESTOPPEL; EXONERATION.
ADMIRALTY. The plaintiff, a British subject, shipped as mate on board a Portuguese vessel, and signed an agreement to be bound by the Commercial Code of Portugal, which requires that all disputes arising between masters and seamen shall be submitted to the Portuguese Consul, in the country where the vessel may be. Without having done this, plaintiff arrested the vessel, and began a suit against the owner in the Admiralty Court. In accordance with the 10th of the Admiralty Court Rules, 1859, notice of the suit was sent to the Portuguese Consul in London, who thereupon protested against the same. On motion of the defendant, the court decreed that the vessel should be released, and condemned the plaintiff in costs and damages. The above rule was not abrogated by 24 Vict. c. 10, § 10, giving jurisdiction to the court over any claim by a seaman of any ship for wages and disbursements. — The Nina, Law Rep. 2 Adm. & Ecc. 44.
Affirmed on appeal, except as to costs and damages, which were not allowed, as the merits had not been tried. The Admiralty Court has jurisdiction, however, of such cases, and will determine whether, having regard to the reasons of the Consul and the answers of the plaintiff, it is fit for the suit to proceed. La Blache v. Rangel, The Nina, Law Rep. 2 P. C. 38. See COLLISION ; SALVAGE.
ADVANCEMENT. A widow, after making a will in favor of her two daughters, transferred East India stock, which had stood in her own name, into the joint names of herself and the unmarried daughter, and died. While she lived, she always received the dividends, and applied them to her own use. Held, that the stock belonged to the unmarried daughter absolutely. — Sayre v. Hughes, Law Rep. 5 Eq. 376.
AGENT. — See PRINCIPAL AND AGENT.
AGREEMENT. — See CONTRACT.
ALLOTMENT. — See COMPANY.
AMENDMENT. — See AWARD.
APPROPRIATION OF PAYMENTS. New trustees proved against the estate of a defaulting trustee for the aggregate amount of the principal trust fund and arrears of interest, but recovered a sum less than the principal. Held, that said sum must be treated as capital. But one having a life estate therein was entitled to the future interest of the same. — In re Grabowski's Settlement, Law Rep. 6 Eq. 12.
ARBITRATION. - See AWARD.
ARREST. — See Assault.
ASSAULT. The prisoner assaulted a constable in the execution of his duty. The constable went for aid, and after an hour returned with three others, but found the prisoner had locked himself up in his house. Fifteen minutes later the constables forced the door, entered, and arrested the prisoner, who wounded one of them in resisting the arrest. Held, that the arrest was illegal. — The Queen v. Marsden, Law Rep. 1 C. C. 131.
Assets. — See EXECUTION; WINDING UP, 2.
ASSIGNMENT. — See ATTACHMENT.
ATTACHMENT. 1. A prior equitable assignment of railway shares in the hands of the garnishee is a bar to a foreign attachment, although no notice of such assignment has been given to the garnishee. — Robinson v. Nesbitt, Law Rep. 3 C. P. 264.
2. A railway company assigned, by a deed containing a power of sale, a call which had been made, but was not yet payable, as security for a debt then due to the plaintiff. After the same had become payable, the defendants obtained a garnishee order nisi against a shareholder. The shareholder had no notice that the deed of assignment had been sealed at the time of the service of said order upon him, but had presided at the board at which the sealing was directed. Held, that the assignment was not ultra vires ; that it was not made void by the power of sale, as, if said power was invalid, it would be expunged by the Court of Chancery; and that the shareholder had notice. Quære, whether notice was necessary as against a subsequent judgment creditor. - Pickering v. Ilfracombe Railway Co., Law Rep. 3 C. P. 235; Watts v. Porter, 3 E. & B. 743, overruled. See Robinson v. Nesbitt, Law Rep. 3 C. P. 264.
AWARD. The plaintiff sued A., B., and C., upon a joint contract, and after plea entered a nolle prosequi as to B. and C. Afterwards an order of reference was drawn up, by consent, on a printed form, which contained no power to the arbitrator to amend. Before the arbitrator it was set up that the nol. pros, as to B. and C. discharged the defendant, and the plaintiff sought to amend. Held, that he could not. Unless there has been an omission by an officer of the court, or an accident or mistake, owing to which it is not in accordance with the intention of either party, or fraud, a consent order will not be altered by the court. (Per BOVILL, C.J.) Nor could it be done indirectly by amending the record under $ 37 of the Common Law Procedure Act, 1852, by striking out the names of B. and C., at least when they were joined as defendants intentionally, to fix all three with liability. — Vanderbyl v. McKenna, Law Rep. 3 C. P. 252.
BANKER. Appellants, bankers, had policies on the life of one deceased as security for money due from him to them. To obtain payment of these, they received the probate of his will from his widow and executrix, promising to make over the balance to her. Said probate showed remainders to children after the widow's life estate. The latter drew a cheque for said balance, payable to a firm composed of herself and her husband's former partner, which banked with appellants, and the amount was placed to the credit of the firm accordingly. In a suit by the children, held, by the House of Lords, reversing the decree of the Lord Chancellor of Ireland, that the bankers were not liable to replace said balance. To justify a banker in refusing to pay a cheque drawn by a customer as executor, there must be a breach of trust intended by the latter, and the banker must be privy to that intent. Proof that any personal benefit to the bankers themselves is designed or stipulated for, is the strongest evidence of such privity. - Gray v. Johnston, Law Rep. 3 H. L. 1.
BANKRUPTCY. 1. R., having a contract to supply meat to a lunatic asylum for six months from April 1, assigned it on that day to H., who delivered his own meat in R.'s name, without the knowledge of the asylum. R. became bankrupt, and his assignee claimed the sum then due for meat as “goods and chattels” in the “ possession, order, or disposition ” of R. as reputed owner with the consent of H., the true owner, within the Bankrupt Act 12 & 13 Vict. c. 106, § 125. Held, that the debt passed to the assignee.
(Per Willis, J., dissentientem.) The meat never having been in R.'s possession, the debt arising thence was not within his possession, order, or disposition. Cooke v. Heming, Law Rep. 3 C. P. 334.
2. A shareholder under the Companies Act, 1862, who has become bankrupt and received his discharge, but retains his shares, is not discharged from liability to pay subsequent calls, whether made while the company is in operation, or when it is being wound up, either under $ 75 of said act, or under the Bankrupt Act, 1861, $ 154. — Martin's Anchor Co. v. Morton, Law Rep. 3 Q. B. 306. See APPROPRIATION OF PAYMENTS.
BETTING. — See GAMING.
BILLS AND NOTES.
See LIMITATIONS, STATUTE OF, 2; STAMP.
CALL. — See ATTACHMENT, 2.
CANADA, LAW OF. A défense d'aliéner pur et simple, viz., a provision against alienation for twenty years from death of testator in the interest of no one but the devisee, is void by the old French law in force in Lower Canada, founded on the Roman law, and by the general principles of jurisprudence. — Renaud v. Tourangeau, Law Rep. 2 P. C. 4. CANCELLATION. — See VENDOR AND PURCHASER OF REAL ESTATE.
CAUȘE OF ACTION. A contract was made abroad, but broken in England. Held, that the cause of action " did not arise within the jurisdiction within the meaning of the Common Law Procedure Act, 1852, $$ 18, 19. — Allhusen v. Malgarejo, Law Rep. 3 Q. B. 340.
CARRIER. — See RAILWAY.
CHARTER Party. 1. By a charter party the charterer agreed to load “a full and complete cargo of sugar in cases, or other lawful merchandise, with sufficient bags for broken stowage," at a certain rate of freight per ton for sugar, and for “other produce a rate proportionate to sugar in casks, with sufficient bags for broken stowage, agreeably to the custom of the port of loading.” The charterer took a full cargo of cotton, with sixty tons of stone for ballast, which would have been unnecessary if sugar had been loaded. By the custom of the loading port, 928 pounds of cotton was to be taken as equal to a ton of sugar. Held, that a full cargo had been loaded. The charterers were not bound to ship sufficient bags for broken stowage with any other cargo than sugar in cases. — Duckett v. Satterfield, Law Rep. 3 C. P. 227.'
2. Defendant agreed to load plaintiff's ship with coal in regular turn, “ except in cases of riots, strikes, or any other accidents beyond his control,” which might prevent a delay in loading. A snow-storm prevented the loading. Held, not an “accident" within the above exception. — Fenwick v. Schmalz, Law Rep. 3 C. P. 313.
3. The case of Hudson v. Ede, Law Rep. 2 Q. B. 566 (ante, 2 Am. Law Rev. 272), was affirmed in the Exchequer Chamber, Law Rep. 3 Q. B. 412.
CHEQUE. — See BANKER; LIMITATIONS, STATUTE OF, 2.
CHILDREN, CUSTODY OF. — See CUSTODY OF CHILDREN. CHOSE IN ACTION. — See BANKRUPTCY, 1; VENDOR AND PURCHASER OF
COLLISION. In cross suits between a sailing vessel and a steamer, the Court of Admiralty beld both vessels to blame, and decreed the damages to be equally divided between them. As the sailing vessel was sunk, this was, in effect, a severe judgment against the steamer, which appealed. Nothing appeared in the sailing vessel's case why, if she acted wrongly, the steamer should have been held to have been in the wrong also, and, on the evidence, the steamer seemed to have acted rightly. The decree was reversed. That the sailing vessel did not make out her case was res judicata, she not having appealed. — Inman v. Rack, The City of Antwerp, and The Friedrich, Law Rep. 2 P. C. 25. See SALVAGE.
COMMON CARRIER. — See RAILWAY.
COMPANY. 1. In October, 1865, A. received from a private source what purported to be a prospectus of a company then about to be formed, upon reading which, and from its language, expecting an immediate allotment, he applied for ten shares, and paid the required deposit to the bankers named therein. In January, 1866, A. received the authentic prospectus, which differed materially from the document before received. Feb. 1, the directors met for the first time and allotted the shares, among others to A.; and it was taken, in deciding the case, that A. received the letter of allotment Feb. 3. Feb. 7, A. wrote, declining to take any shares, and requesting a return of his deposit. His letter was received the next