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bought. Here he bought, as a foreign bill, what turns out not to be a foreign bill, and therefore valueless. Common justice requires that he should have back the price.

WIGHTMAN J. I agree upon this ground, that what was sold purported to be a bill drawn at Sierra Leone and available against the parties to it, but, so far from answering that description, was a bill not drawn at Sierra Leone, but in England, and, being unstamped, was unavailable. Wherever the article answers the description by which it is sold, and it turns out that there is a latent defect, in the absence of fraud and warranty, the vendee must take it with all faults. But this is a case in which it does not answer the description. And therefore on the authorities, more especially on that of Jones v. Ryde (a), the plaintiff is entitled to recover (b). Rule absolute (c).

(a) 5 Taunt. 488.

(b) Erle J. had gone to Chambers. (c) See the Digest, lib. xviii. tit. 1. De Contrah. Emt; laws 9, 10, 11 and 14., where the subject of the principal case is discussed. The civilians seem to have come to the conclusion, "Si" "æs pro auro veneat non valet," aliter si aurum quidem fuerit, deterius autem quam emtor existimaret: tunc enim emtio valet."

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1853.

GOMPERTZ

V.

BARTLETT.

1853.

A charter, incorporating a trading company, directed, amongst other things, that the Corporation

ERROR FROM THE QUEEN'S BENCH.

The EASTERN ARCHIPELAGO Company against the QUEEN on the prosecution of Sir JAMES BROOKE.

ERROR from a judgment quod cancelletur, in scire

facias to repeal a charter of incorporation.

The pleadings are stated in the report of the case

should not begin business until it had been certified to the President of the Board of Trade, by at least three of the Directors, that at least one half of the capital had been subscribed for, and at least 50,000l. paid up. The charter contained a proviso that, in case the Corporation should not comply with any "the directions and conditions in Our said letters patent contained, it should be lawful for the Queen," "by any writing under the great seal or under the sign manual," "to revoke and make void" the charter, "either absolutely, or under such terms and conditions as" the Queen should think fit. In sci. fa., at the relation of a private prosecutor, it was suggested, amongst other things, that, before the Corporation began business, a certificate was given by the Directors to the President of the Board of Trade that 50,0007. had been paid up, which certificate was false in fact to the Directors' knowledge; and, on a traverse of this, the verdict passed for the Crown. Judgment quòd cancelletur having been entered in the Q. B., and error brought in Exch. Ch. :

Held, by Jervis C. J., Pollock C. B., Cresswell, Williams and Talfourd Js., and Platt and Martin Bs., that the judgment was correct. Parke B. dissentiente.

All the Judges agreed that for an abuse of the franchise by matter dehors the conditions the sci, fa. would lie and that, unless the proviso had the effect of controlling the conditions, the sci. fa. would also lie for the breach of express conditions; and that the fiat of the Attorney General for a sci. fa. to repeal a charter for abuse, or for breach of a condition express, or implied, was as of right to every subject grieved, though not as of course to any subject asking for it. But

Purke B. held 1st: that the giving of a false certificate was a breach of the express conditions in the charter only, and not an independent abuse by matter dehors these conditions; Jervis C. J., Cresswell J. and Martin B. holding the contrary; the other Judges not expressing their opinions on this point.

Parke B. held 2dly: that the true construction of this charter, including the proviso, was to shew an intention on the part of the Crown to make, a writing under the great seal or sign manual a condition precedent to the forfeiture of the charter for breach of any express condition; Martin B. inclining to agree in this; Jervis C. J., Pollock C. B., Cresswell J., Platt B., Williams J. and Talfourd J. holding that such an intention did not appear.

Parke B. held 3dly and semble per Martin B.: that it was competent for the Crown, by apt words in a charter, to attach such a condition precedent to the forfeiture of a franchise for express condition. Jervis C. J., Pollock C. B. and Cresswell J. dubitantibus, at least where the condition affects the interests of other subjects.

below (a). The following statement of the material parts is taken from the judgment of Martin B. in the present

case.

"This is a writ of error upon a judgment of the Court of Queen's Bench in an action of scire facias, at the suit of the Crown on the information of Sir James Brooke, wherein it was prayed that certain letters patent of incorporation granted to The Eastern Archipelago Company should be annulled, and the letters patent restored to the Court of Chancery to be cancelled.

"The writ sets out the letters patent, dated the 17th July 1847, whereby, after reciting that it had been represented to Her Majesty that certain persons had agreed to subscribe a capital of 200,000l. to be divided into 2000 shares of 100l. each, and to form a company or partnership called The Eastern Archipelago Company for the purpose of purchasing, and dealing and making profit with, land and the produce thereof, in the Island of Labuan, and the lands adjacent, and for raising coal, minerals and metals, and of trading and trafficking with the inhabitants of the said island, and of exporting therefrom its produce, and importing thereto such articles as the Company thought proper, and that the said persons had besought Her Majesty to grant them Her Royal Charter, Her Majesty granted to the said persons, and to such other as might be members of the said Company and should hold shares therein of not less than 1007. each, that they should be a body politic and corporate by the name of The Eastern Archipelago Company for the purposes before mentioned, and by that name should sue and be sued, but subject to the directions and provisions in the said charter contained. The charter (a) 1 E. & B. 310.

1853.

EASTERN ARCHIPELAGO Company

V.

The QUEEN.

1853. EASTERN

Company

V.

The QUEEN

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then proceeded to direct that a court of Directors should have power to enter into all contracts, and to do all acts ARCHIPELAGO which they should consider necessary for the well ordering the affairs of the Corporation, and to execute all powers in relation thereto, and to bind the Corporation as if the same was done by the whole body, so as the same was done in conformity with the charter, and of the deed or deeds to be thereafter executed. The charter then proceeded to provide for the custody of the common seal, and to authorize the purchase of land in mortmain, and proceeded thus. And We do hereby further direct that the sum of 100,000l., at the least, being one half of the aforesaid capital of the said Corporation, shall be subscribed for within twelve calendar months from the date of these presents, and that the sum of 50,000, at the least, shall be paid up within such period.' The charter then proceeded to provide for the execution of a deed of settlement, and the deposit of a copy thereof with the Board of Trade, and proceeded thus. And we do hereby further direct that the said partnership shall not begin business until it shall have been certified to the President of the said Board of Trade, by at least three of the Directors of the said Company, that at least half of their capital beforementioned had been subscribed for, and the said sum of 50,000, at the least, paid up; such certificate of the said Directors to be indorsed on the said charter.' The charter then proceeded to provide for the increase of the capital of the Company, and the borrowing of money, and proceeds thus. Provided always, and we do hereby will and declare, that, in case the said Corporation shall fail to enter into and execute such deed of settlement as aforesaid, and to deposit a copy thereof within the

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1853.

EASTERN

Company

V.

The QUEEN.

period before limited in that behalf, and subject as aforesaid, or in case the said Corporation shall not comply with any other the directions and conditions in ARCHIPELAGO these Our letters patent contained, it shall be lawful for Us, Our heirs and successors, by any writing under the great seal or under the sign manual of Us, Our heirs or successors, to revoke and make void this Our Royal charter and every clause, matter and thing therein contained, either absolutely or under such terms and conditions as We or they shall think fit.' Then there follow provisions for the revocation of the charter by the Crown, for the dissolution of the Company by their own act, for the enrolment of the deed-of settlement in the Court of Chancery, and for the recognition of the charter by all Courts and persons; and it proceeds thus. Provided always, and We do hereby express and declare that this Our royal charter is granted upon the express condition, that the said partnership hereby incorporated shall, at all times during the continuance of the said Corporation, abide by and conform to all and every the directions which may be given to the said Corporation by any one of the principal secretaries of state of Us, Our heirs or successors, as regards the intercourse and dealings by the said Company with any foreign state or power.' And the charter concluded in requiring all Governors &c. to give full force and effect to the said letters patent. The writ then proceeds to aver various alleged breaches of the charter, and, amongst others, that the sum of 50,000l. of the capital of the Company had not been paid up within the period of twelve calendar months from the date of the charter; and that, although the Company began to trade upon a certain day, viz. the 30th June 1849, yet at that time

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