carried into effect by an indenture of January, 1857, which provided that if company A. (or their intended as- signees, the Corporation or Local Board of Health), being desirous of becoming the absolute and unre- stricted owners of the works of com- pany B., subject only to the mortgage debt, should, "on or before any 25th of December, after having given to company B. six months' previous notice of their desire to avail them- selves of the option thereby given, pay unto company B." £46,246, the amount of their share capital, the party so paying should become abso- lutely entitled to the works.
In June, 1870, the corporation who had acquired the interest of company A., gave notice to company B. of their intention to pay the £46,246, on the 25th of December following, but they were unable, from want of funds, to carry out the purchase. In June, 1871, they again gave notice that they would pay the money on the 25th of December, 1871:-
Held, that the corporation, by giv- ing the first notice and failing to act upon it, had not lost the right given to them by the deed of January, 1857, of purchasing, after six months' no- tice, on or before any 25th day of December. Ward v. Wolverhampton Waterworks Co.
BREACH OF PROMISE, 218, 225, note FRAUDS, STATUTE OF, 68, 78, 135, note, 640.
NEGLIGENCE, 202, 204, note.
Held, that the defendant was in the nature of an arbritrator to determine between the parties any difference which might arise as to the quality of the raisins tendered in fulfilment of the contract; and, consequently, that he was not liable to an action for not having exercised reasonable care and skill in coming to a decision,-it being conceded that he had acted bona fide and to the best of his judgment.
Quare, whether the contract was sa tisfied by the tender of raisins of "fair average quality" generally, or whether it required that they should be of fair average quality of the growth of 1869? Pappa v. Rose. 87
2. How far an agreement that a third person shall determine the quality of goods is binding see. 87 and note 97 3. How far clause in contract for is binding. 532 note.
How far clause for decision by is binding. 532 note
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 a 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 Hawker.
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 execution.
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:-
BREACH OF PROMISE OF MARRIAGE.
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.
1. A valuable greyhound was delivered by its owner to the servants of a rail- way company, who were not common carriers of dogs, to be carried, and the fare demanded was paid. At the time of delivery the greyhound had on a leathern collar with a strap at- tached to it. In the course of the journey, it being necessary to re- move the greyhound from one train to another which had not then come up, it was fastened by means of a strap and collar to an iron spout on the open platform of one of the com- pany's stations, and, while so fastened it slipped its head from the collar and ran upon the line and was killed :—
Held, that the fastening the grey- hound by the means furnished by the owner himself, which at the time appeared to be sufficient, was no evidence of negligence on the part of the company. Richardson v. North Eastern Railway.
2. There is a duty on the master of a ship, as representing the shipowner, to take reasonable care of the goods intrusted to him, not merely in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but also in taking active measures, where rea- sonably practicable under all the cir- cumstances, to check and arrest the loss or deterioration resulting from accidents, for the necessary and im- mediate consequences of which the shipowner is not liable by reason of exceptions in the bill of lading. And for neglect of this duty by the master
the shipowner is responsible to the shipper.
The plaintiffs shipped beans on board the defendants' ship, under a 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 they would have been by the mere. wetting from the collision, if they had been dried instead of being car- ried on as they were. The beans might have been removed at Liver- pool from the ship to warehouses and spread out and dried, and there was warehouse accomodation within half a mile of the dock in which the ship was; and by this means the decom- position would have been materially arrested or mitigated. The cost of unshipping, drying, and re-shipping, would have been particular average, payable by the shippers. The plaint- iffs' brought an action against the de- fendants, claiming the amount of the extra depreciation. On a case dis- closing the above facts, the court having power to draw inferences :-
Held (affirming the judgment of the Court of Queen's Bench), that the facts showed that the beans might have been taken out and dried (which was clearly a proper thing to do on behalf of the owners), and then re- shipped, without unreasonably delay- ing the whole adventure; that it was, therefore, the master's duty to have done so, and consequently the defend- ants were liable. Notara v. Hender- 269
Semble, that the measure of dama- ges was the amount of extra deprecia- tion in value in consequence of the neglect to dry the beans, after allow- ing the estimated expense of unship- ping, drying, and reshipping. Notara v. Henderson. 269
See STOPPAGE IN TRANSITU, 148.
See GENERAL AVERAGE, 162.
1. A company was established for the working of two mines, with a nominal capital of 300,000%, divided into 12,000 shares of 251, each. Difficulties arising as to the title to one of the mines, and the defendants, who had negotiated the purchases for the company, and were to receive 10,000Z. from the vendor of each mine, and had received the 10,000l. upon the completion of the purchase of the other mine, having bought 400 shares in the market and not being prepared to take them up, applied to the company for assistance, and the latter advanced them 65007. upon the defendants undertaking to return it in the event of the purchase of the second mine not being completed within three months. The shares were taken up, but the contract for the purchase of the mine ultimately went off. The directors then called upon the defendants to return the 6500l., and, after much negotiation, it was arranged that the defendants should transfer to the company the 400 shares (10%.. paid up), in satisfaction and discharge 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 was agreed that the company should go into liquidation, and its business be transferred to a new company with a diminished capital and 107. shares, the directors of the new company being the directors of the old one, and the shareholders in the old company being holders of share for share in the new one. A report of the directtors was read, showing the reasons for the liquidation and transfer, and that the diminution of the capital was owing partly to the abandonment of the purchase of the second mine and partly to" shares forfeited for nonpayment of calls." At this meeting an account was handed to each shareholder present, in which the sum of 4000l. was set down as the price of "shares cancelled;" and the account of the defendants in the company's ledger was credited with 40007., as per shares forfeited account."
of writ. Newby v. Von Oppen. 323
By the articles of association of the 16. So held, on motion to set aside service company the directors were prohibi- ted from purchasing their own shares; but they had power to compromise debts due to them, and to forfeit shares for non-payment of calls:-
Held, that, assuming that the com- promise with the defendants by the acceptance and cancellation of the 400 shares was ultrà vires of the directors, the subsequent conduct of the shareholders in assenting to the transfer of the old to the new com- pany, with knowledge or the oppor- tunity and means of knowing, if they 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 brought in 1870 against the defend- ants in the name of the old company for the recovery of the 6500%. 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 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 opportunity and means of inquiry.
3. By one of the articles of association of a joint-stock company, it was pro vided that the company shall not, under any circumstances, purchase its own shares." The directors, having advanced money to the promoters of the company, to enable them to take up shares which they (the promoters) had bought, but for which they were unable to pay, agreed, by resolution, to abandon their claim to have the money returned, in consideration of 400 shares (upon which 10l. per share had been paid up) being given up to them to be cancelled:-
4. Semble, that this was a "purchase of shares" within the prohibition above mentioned. Phosphate of Lime Co. v. Green. 98
5. A foreign corporation, carrying on business in England, although not in- corporated according to English law, may be sued as defendants in an English court, in respect of a cause of action which arose within the juris- diction.
7. Service of a writ of summons on the head officer of an English branch of a foreign corporation carrying on business in England is good service, and it is not necessary to serve the pro- cess on the officer at head office abroad. Newby v. Von Oppen. 323
See AGENT, 490. DIRECTORS, 567.
See NEGLIGENCE, 371, 376.
1. By deed of July, 1853, after reciting a lease of the 10th of March, 1847, from E. F., to defendant, for the lives of A., B., and C., and the sur- vivors or survivor of them, defend- ant conveyed the premises to plaint- iffs, to hold for the lives of A., B., and C., and the survivors or survivor of them, defendant conveyed the premises to plaintiffs to hold for the lives of A., B., and C., and the survivors or survivor of them, and covenanted that the said lease of the 10th of March, 1847, is a good, valid, and subsisting lease in the law, for the lives of the said A., B., and C., and the survivors or survivor of them, and is not forfeited, surren dered, or become void or voidable." B. having died before July, 1853, plaintiffs sued defendant for a breach of the covenant:-
Held, affirming the judgment of the Court of Queen's Bench, that the mention of the three lives was mere matter of description, and that the covenant only amounted to a cove
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