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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.
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,
CAUSE OF ACTION. A contract was made abroad, but broken in England. Held, that the “ of action” did not arise within the jurisdiction within the meaning of the Common Law Procedure Act, 1852, SS 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
in cases. - Duckett v. Satterfield, Law Rep. 3 C. P. 227."
2. Defendant agreed to load plaintiff's ship with coal in regular turn, cept 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, 4. 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 day, on which day the shares were registered. He shortly after wrote again to the same effect. Notices of a call and of a dividend were sent to A., but not noticed by him; and in October, 1867, legal proceedings were threatened in default of his payment of arrears. Held, that the allotment not baving been made for four months after A.'s application, A. was entitled to a locus pænitentiæ, and had a right to repudiate the shares on the 7th of February. - In re Bowton, Baily, & Co., Baily's Case, Law Rep., 5 Eq. 428.
2. A company, having a line built and at work, began an extension line, the capital to be raised as portions of the general capital, by the creation of new shares, the holders of which were not to have more than six per cent for the first three years. The directors charged to capital one-half the office expenses, and interest upon debentures for the extension line, and made a dividend to extension shareholders from interest paid by the contractors in respect of the saine being unfinished. A dividend on the old stock was declared on this basis. An interlocutory injunction was granted by Wood, V.C., on the application of one who had bought extension stock for the purpose of filing his bill, on the ground that the above charges were wrong. On appeal, Lord CHELMSFORD, L.C., continued the injunction until final hearing, on the ground that the questions were of importance and doubt, and, if the dividend were paid, it would not be recovered, which would be an irreparable injury to the extension stockholders. But as the balance carried over to the next half year on the revenue account was much larger than the charge for office expenses, even if it was wrong, it was not a ground for the injunction. Semble, that if the extension line had been a separate undertaking, not as yet yielding income, the interest of a debt incurred to construct it should have been charged on the capital; but it being part of a general undertaking, yielding profit as a whole, quære, whether such debt should be charged to capital or not. The dividend to extension shareholders was right; unless, as charged in the bill, the amount was to be refunded to the contractors by the company. If the directors were acting ultra vires, it could not be set up that these were matters of internal management, which the court would not disturb. The plaintiff having a real interest, and the suit being bona fide his own, he could maintain his bill in spite of his mode of introduction to the company; so, also, in spite of these charges having been acquiesced in by former holders of the stock purchased by him. — Bloxam v. Metropolitan Railway Co., Law Rep. 3 Ch. 337.
3. A railway company, with an act limiting the time of its power for the compulsory purchase of land to four years, and allowing five years for completing the line, after which the powers granted to it were suspended as to any uncompleted portion, served a notice to treat within four years on land-owners, whose claim for compensation was not assented to. Nothing further was done till the five years had expired, when the company claimed to proceed under the notice. On a bill for an injunction by the land-owners, held, that the company could not 80 proceed. The notice did not of itself create a contract, and only operated for a reasonable time, which was within the time allowed to finish the line. Richmond v. North London Railway Co., Law Rep. 5 Eq. 352.
4. The defendant company, by the Railways Clauses Act, 1845, § 16, were empowered to divert ways, subject to the Lands Clauses Act. Sect. 84 of the latter prohibits entry upon lands to be permanently used for the purposes of