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.

See ARBITRATION, 87.

658

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.

ARCHITECT

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.

503

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.

See AGREEMENT, 378.

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.

218, and note 225

BROKER.

See AGENT, 32, 335, 651.

BUILDING.

What is, see, 230.

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.

126

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

son.

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.

CONTRIBUTION.

See GENERAL AVERAGE, 162.

CORPORATION.

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

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.

COURSE.

How run, 177, 191, note.

COUNSELLOR.

See NEGLIGENCE, 371, 376.

COVENANT.

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