Page images

carried into effect by an indenture of

January, 1857, which provided that
if company A. (or their intended as- 1. The defendant, as broker, made a
signees, the Corporation or Local contract for the plaintiff, as fol.
Board of Health), being desirous of lows:-"Oct. 26, 1869. Sold by order
becoming the absolute and unre- and for account of Mr. D. Pappa, to
stricted owners of the works of com- my principals, Messrs. S. H. & Son,
pany B., subject only to the mortgage to arrive, 500 tons Black Smyrna
debt, should, “on or before any 25th raisins—1869 growth-fair average
of December, after having given to quality in opinion of selling broker-
company B. six months' previous to be delivered here in London - at
notice of their desire to avail them- 228. per cwt. D. pd. Shipment, Nov.
selves of the option thereby given, ember or December, 1869," &c. :-
pay unto company B.£46,246, the Held, that the defendant was in the
amount of their share capital, the nature of an arbritrator to determine
party so paying should become abso- between the partier any difference
lutely entitled to the works.

which might arise as to the quality of
In June, 1870, the corporation who the raisins tendered in fulfilment of
had acquired the interest of company the contract; and, conseguently, that
A., gave notice to company B. of he was not liable to an action for not
their intention to pay the £46,246, on having exercised reasonable care and
the 25th of December following, but skill in coming to a decision,-it being
they were unable, from want of conceded that he had acted bona fide
funds, to carry out the purchase. In and to the best of his judgmert.
June, 1871, they again gave notice Quære, whether the contract was sam
that they would pay the money on tisfied by the tender of raisins of
the 25th of December, 1871 :-

“fair average quality" generally, or
Held, that the corporation, by giv- whether it required that they should
ing the first notice and failing to act
upon it, had not lost the right given growth of 1869 ? Pappa v. Rose. 87
to them by the deed of January, 1857,
of purchasing, after six months' no- 2. How far an agreement that a third
tico, on or before any 25th day of person shall determine the quality of
December. Ward v. Wolverhampton goods is binding see, 87 and note 97
Waterworks Co.


3. How far clause in contract for is


532 note.
BREACH OF PROMISE, 218, 225, note
FRAUDS, STATUTE OF, 68, 78, 135,

note, 640.
NEGLIGENCE, 202, 204, note.


How far clause for decision by is

532 note


See DIVORCE, 260.


Sale of goods to arrive, 42, 46 note.



See WILL, 249, 257 note 499.




See CARRIER, 126.


[blocks in formation]





1. A debtor executed as security for

an antecedent debt of £1500, an assign-
ment which included all his property
of any appreciable value, except &
pension of 108. 6d. a day to which he
was entitled as a retired servant of
the East India Company :-

Held (affirming the order of Bacon,
C.J.), that as this pension would not
pass to a trustee in bankruptcy, and
could not be taken in execution by a
creditor, it constituted no substantial
exception from the assignment,
which, being an assignment of sub-
stantially the whole of the debtor's
property, was an act of bankruptcy.
Ex parte Hauker.

2. An execution creditor who has seized

the goods of his debtor before the
latter has committed an act of bank-
ruptcy is entitled to the proceeds of
them as against the trustee. There-
fore where goods of a non-trading
debtor were seized on the 18th of
February, and the debtor filed a peti-
tion for liquidation on the 22d of Feb-
ruary :-

Held, that the execution creditor
was entitled to the proceeds of the

The Bankruptcy Act, 1869, has no
retrospective operation, and where it
speaks of traders, it means such per-
sons only as were traders at the time

when it first came into operation.
3. Therefore where a person has ceased

to trade in 1868, but in 1871 owed
various debts contracted during the
period he was in trade :-

1. The defendant promised to marry the

plaintiff so soon as his (defendant's)
father should die. During the father's
lifetime the defendant refused ab-
solutely to marry the plaintiff. The
plaintiff sued for breach of the pro-
mise, the defendant's father being
still alive.

Held, reversing the judgment of the
Court below, that the principle of
Hochster v. De la Tour (2 E. & B., 678;
22 L. J. (Q.B.), 455) was applicable to
the case of such a promise to marry,
and that a breach of contract had been
committed on which the plaintiff
could sue.

Frost v. Knight.

218, and note 225


See AGENT, 32, 335, 651.


What is, see, 230.

BUILDING CONTRACT. the shipowner is responsible to the

How far decision by Architect binding, The plaintiffs shipped beans on

532, note board the defendants' ship, under &

bill of lading, from Alexandria to
Glasgow, with leave to call at inter-
mediate ports, deliverable to plaint-

tiff's order on payment of freight by

consignees. The ship called at Liver-

pool, and in going out met with a col-

lision (a peril excepted in the bill of
lading), and was obliged to put back
for repairs, which detained her a few
days. The beans were wetted by sea
water in consequence of the collision;
and the plaintiffs, being at Liverpool,
offered to receive them there, paying

freight pro ratá ; but the defendants

agent refused to deliver them without
being paid full freight; and the beans

were carried on to Glasgow; and on

their arrival there they were much

deteriorated in value, beyond what
1. A valuable greyhound was delivered they would have been by the mere.

by its owner to the servants of a rail. wetting from the collision, if they
way company, who were not common had been dried instead of being car-
carriers of dogs, to be carried, and the ried on as they were. The beans
fare demanded was paid. At the might have been removed at Liver-
time of delivery the greyhound had pool from the ship to warehouses and
on a leathern collar with a strap at spread out and dried, and there was
tached to it. In the course of the warehouse accomodation within half
journey, it being necessary to re a mile of the dock in which the ship
move the greyhound from one train was; and by this means the decom-
to another which had not then come position would have been materially
up, it was fastened by means of a arrested or mitigated. The cost of
strap and collar to an iron spout on unshipping, drying, and re-shipping,
the open platform of one of the com would have been particular average,
pany's stations, and, while so fastened payable by the shippers. The plaint-
it slipped its head from the collar and iffs' brought an action against the de-
ran upon the line and was killed : fendants, claiming the amount of the

Held, that the fastening the grey. extra depreciation. On a case dis
hound by the means furnished by closing the above facts, the court
the owner himself, which at the having power to draw inferences :-
time appeared to be sufficient, was Held (affirming the judgment of the
no evidence of negligence on the Court of Queen's Bench), that the
part of the company. Richardson v. facts showed that the beans might
North Eastern Railway.

126 have been taken out and dried (which

was clearly a proper thing to do on
2. There is a duty on the master of a behalf of the owners), and then re-

ship, as representing the shipowner, shipped, without unreasonably delay.
to take reasonable care of the goods ing the whole adventure; that it was,
intrusted to him, not merely in doing therefore, the master's duty to have
what is necessary to preserve them done so, and consequently the defend.
on board the ship during the ordinary ants were liable. Notara v. Hender.
incidents of the voyage, but also in son.
taking active measures, where rea Semble, that the measure of dama-
sonably practicable under all the cir. ges was the amount of extra deprecia-
cumstances, to check and arrest the tion in value in consequence of the
loss or deterioration resulting from neglect to dry the beans, after allow-
accidents, for the necessary and im ing the estimated expense of unship-
mediate consequences of which the ping, drying, and reshipping. Natura
shipowner is not liable by reason of v. Henderson.
exceptions in the bill of lading. And
for neglect of this duty by the master See STOPPAGE IN TRANSITU, 148.



Blanchard': Trust 3 D. F. and J., 131,

506 Case v. Drosier, 2 Keen 764, 5 My & Cr., 246, followed.

555 D'Almaine v. Mosley, 1 Drewry 629,

CORPORATION. considered.

621 Dunnage v. White, 1 Jac & Walk. 583, 1. A company was established for the followed.


working of two mines, with a nominal Earl of St. Germains v. Crystal Palace capital of 300,0001., divided into

Railway, L. R. 11 Eq. 568, not fol. 12,000 shares of 251. each. Difficulties lowed.


arising as to the title to one of the Earlom v. Saunders, Amb. 240, distin- mines, and the defendants, who had guished.


negotiated the purchases for the comFarhall v. Farhall, L. R., 7 Eq., 284 pany, and were to receive 10,0001. reversed.

468 from the vendor of each mine, and Fletcher v.

Rylands, 3 H. L., 330, dis- had received the 10,0001. upon the tinguished


completion of the purchase of the Frost v. Knight, Ļ. R., 5 Excheq, 322, other mine, having bought 400 shares reversed.

218 in the market and not being prepared Garrard v. Lord Lauderdale, 2 Russ &

to take them up, applied to the comMyl. 451, discussed.


pany for assistance, and the latter adGraham, Exparte, 5 D. M. & G., 356, vanced them 65001. upon the defend. considered.


ants undertaking to return it in the Hochester v. De La Tour, 2 Ell & B. 678,

event of the purchase of the second followed.


mine not being completed within Humfrey v. Dale, 7 E. & B., 266, E. B. three months. The shares were taken & E, 1004, discussed.


up, but the contract for the purchase Kilvert's Trust L. R., 12 Eq. 183, re- of the mine ultimately went off. The versed.


directors then called upon the defend. Owen v. Homan, 3 Mac & G., 378, con- ants to return the 65001., and, after sidered.

479 much negotiation, it was arranged Radford v. Willis, L. R., 12 Eq., 105, that the defendants should transfer reversed.


to the company the 400 shares (101., Stuart v. Crawley, 2 Stark, 323, distin.

paid up), in satisfaction and discharge guished.


of the claim of the company against them. This transaction took place in August, 1866; and in March, 1867,

at a meeting of the shareholders it CHARGE.

was agreed that the company should

go into liquidation, and its business See LEGACY, 611.

be transferred to a new company with WILL, 555.

a diminished capital and 101. shares, the directors of the new company being the directors of the old one, and

the shareholders in the old company COLLATERAL.

being holders of share for share in the new one.

A report of the directSee FRAUDS STATUTE OF, 68, 78, note

tors was read, showing the reasons for the liquidation and transfer, and that

the diminution of the capital was I

owing partly to the abandonment of

the purchase of the second mine and CONDONATION,

partly to "shares forfeited for non

payment of calls.” At this meeting See DIVORCE, 241, 249, note.

an account was handed to each shareholder present, in which the sum of 40001. was set down as the price of

“shares cancelled ;” and the account CONTRACT.

of the defendants in the company's

ledger was credited with 40001., as See AGREEMENT.

per shares forfeited account.”

By the articles of association of the 6. So held, on motion to set aside service
company the directors were prohibi- of writ. Noroby v. Von Oppen. 323
ted from purchasing their own shares;
but they had power to compromise 7. Service of a writ of summons on the
debts due to them, and to forfeit head officer of an English branch of
shares for non-payment of calls :- a foreign corporation carrying on

Held, that, assuming that the com- business in England is good service,
promise with the defendants by the and it is not necessary to serve the pro
acceptance and cancellation of the cess on the officer at head office
400 shares was ultrà vires of the abroad. Newby v. Von Oppen. 323
directors, the subsequent conduct of
the shareholders in assenting to the

See AGENT, 490.
transfer of the old to the new com-

pany, with knowledge or the oppor-
tunity and means of knowing, it thoy
thought proper to inquire, that such
transfer was in part founded upon
such cancellation, was a ratification
and acquiescence in what the direct-

ors had done, and sustained a plea of
accord and satisfaction to an action

How run, 177, 191, note.
brought in 1870 against the defend-
ants in the name of the old company

for the recovery of the 65001, advance.
2. To show assent and acquiescence in
such a case, it is not necessary (or

possible) to prove the acquiescence of
each individual shareholder. It is
enough to show circumstances which

Soe NEGLIGENCE, 371, 376.
are reasonably calculated to satisfy
the Court or a jury that the thing to
be ratified came to the knowledge of
all who chose to inquire, all having
full opportunityand means of inquiry.

3. By one of the articles of association

of a joint-stock company, it was pro 1. By deed of July, 1853, after reciting
vided that the company shall not, a lease of the 10th of March, 1847,
under any circumstances, purchase its from E. F., to defendant, for the
own shares." The directors, having lives of A., B., and C., and the sur-
advanced money to the promoters of vivors or survivor of them, defend.
the company, to enable them to take

ant conveyed the premises to plaint-
up shares which they (the promoters) iffs, to hold for the lives of A., B.,
had bought, but for which they were and C., and the survivors or survivor
unable to pay, agreed, by resolution, of them, defendant conveyed the
to abandon their claim to have the premises to plaintiffs to hold for
money returned, in consideration of the lives of A., B., and C., and
400 shares (upon which 101. per share the survivors or survivor of them,
had been paid up) being given up to and covenanted that the said lease
them to be cancelled :-

of the 10th of March, 1847, is a good,

valid, and subsisting lease in the law,
4. Semble, that this was a “purchase of for the lives of the said A., B., and

shares" within the prohibition above C., and the survivors or survivor of
mentioned. Phosphate of Lime Co. them, and is not forfeited, surten-
v. Green.

98 dered, or become void or voidable."

B. having died before July, 1853,
6. A foreign corporation, carrying on plaintiffs sued defendant for a breach

business in England, although not in- of the covenant:-
corporated according to English law, Held, affirming the judgment of the
may be sued as defendants in an Court of Queen's Bench, that the
English court, in respect of a cause of mention of the three lives was mere
action which arose within the juris- matter of description, and that the

covenant only amounted to a cove

« PreviousContinue »