the money secured by the bill of sale might be repaid, or
the mortgagee's rights under the bill of sale enforced
before the expiration of the time for repayment men-
tioned in the bill of sale. Within a month after exe-
cuting the bill of sale, the mortgagor filed a petition for
liquidation, and the mortgagee, three days after the filing
of the petition, seized and sold part of the property com-
prised in the bill of sale. Held, that the collateral agree-
inent did not amount to a defeasance or condition within
the meaning of the 2nd section of the Bills of Sale Act
1854, and that, therefore, its non-registration did not
render the bill of sale void as against the trustee under
the liquidation. Held, also, that the false recital did not
invalidate the bill of sale

BONDS.

...Page 108

BUILDING AGREEMENT.
Light and air-Reservation of-Lease-" Lights," grant of
-Collateral agreement-Injunction.-Under a building
agreement, B. pulled down an old house on the north side
of a court and built a new messuage, and A., who was
the owner in fee of the land on the north and south sides
of the court, granted B. a lease of the new messuage, with
all" lights," &c., the lease being in the form contained
in the schedule to the agreement. The agreement also
contained a proviso that "nothing herein contained shall
be construed as giving B. a right to any light and air
derived from over the houses on the south side of the
court." Subsequently C., in pursuance of an agreement
with A., pulled down the old houses on the south side of
the court, facing B.'s new messuage, and proceeded to
erect a new messuage to a much greater height than that
of the old houses, B. thereupon filed a bill to restrain C.
from building higher than the height of the old houses on
the south side. Held, that B.'s lease was controlled by
the proviso in his agreement, and consequently that he
was not entitled to the injunction which he sought...

BUILDINGS.

Exercise of statutory powers by a corporation-Dangerous
structures-Certificate of surveyor conclusive-Act of the
corporation-Ratification-Building.-By the local Act,
the corporation of a city by the council were thereby em-
powered to carry the Act and the several powers thereof
into execution. Another section said that if any sum-
mons, demand, or notice, required authentication by the
corporation, the signature of the town clerk thereto should
be a sufficient authentication. Among other things it was
also enacted that "If the surveyor of the city should
certify in writing that there is imminent danger from any
building, the corporation shall and may, without any pre-
sentment, notice, or other formality, cause the same to be
taken down." The plaintiff was the occupier of two
houses, between which communications had been made,
and which were in effect one set of business prsmises, and
were so occupied by him, though they were numbered as
in different streets, and were separately rated. Held:
First, that the surveyor's certificate was conclusive as to
the state of the building described in it at the time it was
given, and that the corporation were not only protected
in acting, but were bound to act upon it, and that the
facts upon which such certificate was based could not
afterwards be examined into. Secondly, That a written
direction of the town clerk, purporting to be given in the
name of the corporation, though without consul ing them,
to the surveyor upon receipt of his certificate, directing
him to take the building down, was the act of the corpora-
tion; and the employment and payment of workmen by
the corporation to do this was an absolute ratification, if
such were needed, of the act of their agent. Thirdly,
That a notice given to the plaintiff of the dangerous con-
dition of his houses, describing them as a "building," and
by the number and name of one street only, was a suffi-
cient description for identification, and to justify the
corporation in dealing with all the premises under the
powers of their Act

274

792

28

274

Meeting of parishioners-

178

CARRIER.

moval-Loss of goods by fire in transit.-The plaintiff
applied to the defendant, the proprietor of vans for
removing furniture without packing, to remove his house-
hold furniture from Paignton to Plymouth, and the de-
fendant, having sent his foreman to inspect the furni-
ture, wrote to the plaintiff as follows: "The terms for
removal of your furniture, as seen by my foreman, will be
£22 108. with risk of breakages in transit, including the
use of all necessary mats, cases, and packing materials,
and every expense. In the event of your accepting this
estimate, be kind enough to sign and return to me the
annexed memorandum, by which I am liable to the
amount therein specified." This memorandum, which
the plaintiff signed, was as follows: "I hereby agree to
pay you the sum of £22 10s. for removal of my furniture
from P. to P.; you undertaking risk of breakages
(if any) not exceeding 51. on any one article." The
defendant undertook the removal of the goods in
his vans accordingly, and in the course of their tran-
sit by rail they were accidentally destroyed by fire,
without any negligence or default of duty on the de-
fendant's part. On the trial of an action to recover
damages against the defendant as a common carrier, for
the loss of the goods, he in evidence described his busi-
ness thus, "I carry goods for all that ask me to all parts
of the kingdom, they paying me the price, and I receive
furniture of customers on contract ;" and on his business
cards were printed the following words: "Contracts
entered into for the removal of furniture to and from all
parts of the kingdom." Held by the Court of Exchequer,
Bramwell, Pollock, and Amphlett, BB. (making absolute
a rule to enter the verdict for the defendant, that the
defendant was not a common carrier in the general
understanding of that term; and that, having by contract
expressly limited his liability to damage arising from
"breakages" only, he thereby, on the principle of
expressum facit cessare tacitum, and expressio unius exclusio
alterius, excluded any other or larger liability, and conse-
quently that he was not liable for the loss occasioned by
a fire occurring without any negligence or default of duty
on his part...
...page 563
Loss of goods-Felony of servants-Evidence.-In an action
against carriers for loss of goods, to make out a case to
go the jury in support of a replication of felony by de-
fendants' servants to a plea of the Carriers' Act, it is
not enough to show that defendants' servants had greater
facilities of access to the goods than any other persons.
A heavy case containing pictures was delivered to the
defendants to be forwarded by train from C. to L., and
was not declared under the Carriers' Act. It was packed
by defendants' porters on a truck and covered over, and
remained for some hours on a long siding to which the
public had access, and was stolen. Some of the porters
were called by plaintiff to prove delivery of the case te
defendants, but none were called by defendants. Held,
that there was no evidence to go to the jury of a loss by
the felony of defendants' servants, and a rule to enter a
nonsuit was made absolute...
759

Notice incorporating Carriers' Act.-Plaintiffs delivered
a small box containing jewels and gold ornaments to
the defendants for carriage, without any declaration
of its contents or intimation of their value. The
articles were stolen by defendants' servants whilst in
their charge. The plaintiffs were aware of a notice
affixed to the defendant's receiving house, and were con-
tent to risk the provisions of the Carriers' Act. This
notice expressly referred to the Carriers' Act, and
adopted the words of the 1st section. It contained the
usual increased charges for insurance of the articles men-
tioned; and it also contained a reference to the carriage
of horses and cattle under other Acts. There was, how-
ever, no mention in it of the exception as to loss arising
by the felonious acts of servants, provided by the 8th
section of the Carriers' Act: Held, in an action to re-
cover the value of the articles stolen, that this notice
merely incorporated the Carriers' Act in the contracts of
carriage made by the defendants, and did not create a
special immunity from loss arising from their servants'
felonious acts; and, further, that even if the notice
created such a special contract beyond the scope of the
Carriers' Act, it would be necessary to show plaintiff's
express consent to its terms before his claim in this action
could be barred...
Passenger's luggage-Liability for loss-Special caract-
Assent of passenger.-The respondent became a pas-
senger in a steamer of the appellants from D. to W., and
on paying his fare received a ticket from the clerk of the
appellants, on the back of which was printed a notice
exonerating the appellants from liability for loss, injury,
or delay to the passenger or his luggage, however caused.
There was no evidence that the respondent had been
made aware of this condition before or at the time that
he took the ticket. During the voyage the steamer was
lost by the negligence of the servants of the appellants,
and the respondent lost his luggage and suffered other
damage and inconvenience. Held (affirming the judg-
ment of the court below), that, in the absence of proof
that the respondent had assented to be bound by
the condition endorsed on the ticket, it was no de-
fence to an action by him to recover the loss he had
sustained
709

Railway company-Services incidental to the business of a
carrier-Restrictions on traffic-Damages-Interest.-
The Act under which the appellant company was incorpo-
rated fixed a maximum charge for the conveyance of
goods "except a reasonable sum for services incidental to
the business of carrier." They permitted the respondent
to occupy land at one of their stations for the purpose of
depositing his coal. Held (affirming the judgment of the
court below), that this was not a "service incidental to
the business of a carrier" within the meaning of the Act;
and that charges as for such service paid by the respon-
dent to the company over and above the maximum fixed
by the Act, might be recovered by him as money had and
received to his use. The appellants had imposed restric-
tions on the coal traffic of the respondent which the court
found to be unreasonable and improper. Held, that
damages for loss of customers arising from such restric-
tions were not too remote to be recovered. Interest will,
as a matter of course, be given for the time that execution
has been delayed by a proceeding in error
...page 573

CHARTER-PARTY.

Contract for carriage of goods-Detention of cargo by
master-Lien-Landing and warehousing goods-Stop
order for excessive amount-Duty and liability of
master.-Where, by a charter-party and bill of lading,
freight is "to be paid on unloading and right delivery of
the cargo," the master having a lien by common law for
freight and general average, and a lien by contract for
demurrage, the payment of the freight and the delivery
of the goods are concurrent acts in which all that is re-
quired from the owner of the cargo is readiness and will-
ingness to pay at the time of delivery; and before paying
any sum for general average, the owner of cargo is en-
titled to be satisfied that the amount claimed is the result
of a proper adjustment; and if the owner of cargo on
arrival of the ship in port, and before discharge, refuses
to pay the amount claimed for freight and general
average before the amount due is finally ascertained, but
offers to pay a large proportion of the freight, and, there
being no doubt as to his solvency, to sign an average
bond for the payment of the general when ascertained,
but the master, nevertheless, insists upon retaining the
cargo on board ship until his lien for freight and general
average, is satisfied, detention by the master is not
wrongful, but, quare, can he impute the delay in the dis-
charge to the owner of cargo or claim for demurrage on
that ground? To justify the master of a ship in landing
or warehousing a cargo under the Merchant Shipping Act
Amendment Act 1862 (25 & 26 Vict. c. 63), s. 67, by which
it is enacted that where the owner of goods imported "fails
to land and take delivery thereof, and to proceed there-
with with all convenient speed" by the time named in the
charter-party, &c.," the shipowner may land and unship
the said goods" and warehouse them, it is not necessary
that the failure of the owner of cargo should be a "wilful
default" in landing, &c., but the master is at liberty to
land the goods whenever the delivery of them to the
owner within the proper time has been prevented by
circumstances, whether the latter is or is not to blame.
The provisions of the Merchant Shipping Act Amend-
ment Act 1862 (ss. 67 and 68), giving power to a master
to land and warehouse a cargo, and give notice of his lien
to the warehouseman, enables the master to retain his
lien, but do not extend it to charges not due at the time
of landing, and if the master wilfully, and for the pur-
pose of exacting from the cargo owner charges for which
he has no lien, places upon the goods a stop order for an
excessive amount, which the cargo owner is compelled to
pay before he can obtain his goods, the landing and deten-
tion of the goods for that amount is a wrongful act, for
which the owner of cargo may recover. Where a master
lands and warehouses goods under the Merchant Shipping
Act Amendment Act 1862, and to preserve his lien for
freight and general average, places on them a stop order
for the amounts claimed, and one of those amounts is paid
by the cargo owner, it becomes the duty of the master
to reduce the stop order to the amount for which he can
after such payment reasonably claim a lien, and his re-
fusal to do so amounts to a wrongful detention of the
cargo. Semble, that a master is not liable merely because
he lands and warehouses goods under a stop order for a
sum in excess of the amount due to him if he bond fide
claims a lien for that sum

Action upon cheque-Plea of Fraud-Cheque given in
respect of contract not repudiated-Whether special
replication necessary.-A contract induced by fraud is
voidable and not void, and a party seeking to avoid such
a contract must first renounce all advantage from it. If

579

the defendant plead to an action upon a contract, that he
was induced to make the contract by the fraud of the
plaintiff, such plea implies that he has repudiated the
contract, and if he has not, the plaintiff is entitled to
judgment without having specially replied that the con-
tract was not repudiated, notwithstanding a finding of
the jury that the contract was induced by fraud. To a
declaration by the plaintiff, as payee, against the defen-
dant, as drawer of a dishonoured cheque, the defendant
pleaded that he was induced to draw the cheque by the
fraud of the plaintiff. The cheque was, in fact, drawn in
consideration of a business and leasehold shop sold by the
plaintiff to the defendant, and the jury found specially:
First, that the plaintiff had fraudulently misrepresented
the value of the business; and, secondly, that the defen-
dant had continued to manage the business and to occupy
the shop after having become aware of the misrepresen-
tation. Held, that the plaintiff was entitled to recover,
and a rule to set aside a verdict for him discharged...page 159
Crossed-Liability of banker to payee-Holder for value.
-The plaintiff received from a debtor a cheque pay.
able to order on the defendants. He crossed it in the
name of his own, another bank, and indorsed it generally.
The cheque was stolen and transferred for value to a per-
on who paid it into a third bank of which he was a
customer. This third bank handed it to the defendants,
who paid the value of it, although it did not come from
the bank with whose name it was crossed. Held that the
statutes concerning crossed cheques do not impose a
liability to a payee upon a bank which neglects their
directions when the cheque has come through the hands
of a bona fide holder for value; and that the plaintiff
could not recover the value of the cheque in an action
against the defendants ...

...

Absence of effects in drawee's hands-Whether presentment
necessary-Cause of action - Prohibition.-Absence of
effects in the hands of the drawee of a cheque dispenses
with the necessity of presentment. The defendant, within
the jurisdiction of the Mayor's Court, drew upon a Hud-
dersfield bank a cheque payable to the plaintiff, the defen-
dant having no eflects at the Huddersfield bank, and
having had notice not to overdraw. The plaintiff having
sued the defendant upon the cheque. Held, that the whole
cause of action arose within the jurisdiction of the
Mayor's Court, and a rule to prohibit discharged

456

699

551

789

110

Abandonment-Application of money secured by bond-
Expenses of obtaining Act-Statute of Limitations-No
assets. In 1859 an Act was passed incorporating the
Kensington Station Railway Company. In 1873 a warrant
was granted for the abandonment of the railway upon
condition that the money secured by the bond should be
applied as part of the assets of the company. The money
had been paid into court. The solicitors and Parliamen-
tary agents of the promoters of the company now claimed
to have the expenses incurred by them, prior to the
passing of the Act in obtaining the passing thereof,
paid out of this money. The railway was never com-
menced; and, until the granting of the warrant, the
company had no assets sufficientt to pay these claims.
Held, that as the claimants could not have brought
an action against the company without averring that
the company had sufficient assets to pay their claims,
and as the company had no such assets until the granting
of the warrant, these claims were not barred by the
Statute of Limitations, which only began to run from the
time when the claimants could have brought an action... 183
Covenant to build a station-Transfer of liability-Specific
performance-Injunction.- The S. railway company,
under their statutory powers, purchased land of A., and,
in the conveyance of the land to them, covenanted for
themselves, their successors, and assigns, to erect and
maintain a station at B. The L. railway company, in
pursuance of an agreement with the S. railway company,
obtained statutory powers to take a lease of the S. railway
with all the rights and privileges, but subject to all the

...

...

...

...page 216

liabilities and obligations of the 8. railway company. The
L. railway company accordingly entered into possession
of and worked the S. railway, but no lease was executed
to them. The S. railway company became insolvent, and
the L. railway company refused to build a station at B.
Held, on a bill by A. against both companies to enforce
specific performance of the covenant, that he was entitled
to a decree for the erection of a station in accordance
with the terms of the covenant, and to an injunction
restraining the defendants from allowing the line of the
S. railway to remain without a station at B....
Debtor's summons-Company-Shareholder's registered
address-Substituted service.- the articles of associa-
tion of a company provided that notices required to be
served by the company on shareholders might be served
by leaving the same at their registered addresses. The
company having been ordered to be wound-up, the
liquidator issued a debtor's summons against one of the
shareholders for unpaid calls, and obtained an order for
substituted service at his registered address. Service
was made in accordance with the order, but the debtor's
registered address had long before ceased to be his place
of residence or business. Held, that the provision in the
articles as to service of notices at the registered address
did not render valid the service of legal proceedings at
that address; that the service of the debtor's summons
was invalid, and that therefore the failure to comply
with it did not render the shareholder liable to be
adjudicated a bankrupt
Directors.-Overbearing or fraudulent conduct of-Suit by
individual shareholder to restrain.-Bill by shareholder on
behalf of himself and other shareholders against a company
and its directors alleging that in order to prevent discus-
sion of a resolution proposed by the plaintiff at a general
meeting, the chairman had, in collusion with other di-
rectors, and in order to stifle discussion, determined to
carry, and had carried by show of hands, an adjournment
of the meeting, and to refuse, and had refused, a poll on
the question of adjournment, so as to prevent the use of
proxies by the plaintiff. Held, on demurrer by a director
who was not present at the meeting, first, that the chair-
man had not the absolute power to declare the meeting
adjourned; secondly, that the bill was sustainable by a
single shareholder as the acts complained of, though not
ultra vires, were of an overbearing or fraudulent
character
Injunction-Undue preference-Special agreements-Costs
-The Railway Traffic Act.-A railway company, in con-
sideration of their customers signing an agreement, one
of the conditions of which was that the customers would
not send their produce by any other railway than
that of the contracting company, agreed to convey their
produce at a reduced rate per ton. Held, that the
granting of these lower charges under the circumstances
of this case created inequalities which contravened the
provisions of the Railway Traffic Act, and that an injunc
tion would be granted to prevent a railway creating such
inequalities in the future, for a railway company cannot
compel the public to purchase equality of treatment by
imposing conditions of that character. Equal treatment
does not consist in all being offered a similar agreement;
for if the agreement is not for the public benefit, or if it
goes beyond the fair regard which a company may pay to
its own interests, it leaves untouched the right of all
under the Traffic Act to be upon equal terms
Issue of fully paid-up shares-Non-registration of contract
-Cancellation of shares-Issue of fresh shares...
Issue of preference shares-Ultra vires-Companies' Act
1862, s. 12.-The memorandum of association of a com-
pany incorporated under the Companies' Act 1862, pro-
vided that the capital of the company should be 2,700,000l.,
divided into 135,000 shares of 201. each. One of the articles
of association provided that the directors might, with the
sanction of a special resolution of the company, increase
its capital by the issue of new shares or stock, or might
raise any further sum by the issue of bonds, such in-
crease of capital and such further issue of bonds to be
raised and made in such manner, to such amount, and to
be with and subject to such rules, regulations, privileges,
and advantages as the company in general meeting should
direct. The original capital, together with a considerable
further sum for which the company had agreed to issue
bonds bearing interest at 81. per cent. per annum, was
expended on the undertaking. Special resolutions were
passed and confirmed, by which the directors were autho-
rised to issue preferred shares as fully paid up shares in
satisfaction of principal moneys which might be owing by
the company on the bonds agreed to be issued in satis-
faction of the claims of creditors. On a bill by the holder
of shares in the original capital to restrain the company
and its directors from issuing such preferred shares as
being in excess of the powers of the company, to which the
defendants demurred. Held that the company were not
precluded from issuing preference shares, and the de-
murrer was accordingly allowed
Joint stock company-Prospectus-False representation-
Evidence of fraud in absence of honest belief.-In an
action against directors of a company for false and fraudu-
lent representations contained in a prospectus issued
with their knowledge, and the material statements in
which were untrue in fact, but were made-as the pro-

290

653

271

107

82

spectus stated-on the authority of vouchers which were
mentioned and declared as "believed to be true," but
which turned out to be false and fraudulent. Held, first,
that it was for the jury whether the representation of the
directors was that they believed the statements of the
facts to be true, or that they believed the vouchers to be
genuine; secondly, that in either view the question
would be whether they honestly believed in the truth of
the representation they made; and that if they had such
honest belief they were not liable; but, thirdly, that if
they had no such honest belief, and the plaintiff took his
shares and paid his money on the faith of the prospectus,
and not on his own judgment on the voucher set forth,
then that the defendants were liable
Manager of-List of members-General meeting-Com-
panies Act 1862 (25 & 26 Vict. c. 89), ss. 26, 27.-The
appellant was summarily convicted under the Companies'
Act 1862, sect. 27, which imposes penalties upon every
director and manager of a company who shall knowingly
and wilfully authorise or permit default in forwarding to
the registrar, once in every year, a list of persons who,
on the fourteenth day after the ordinary general meeting
is held, are members of the company. The appellant was
not a director of the defaulting company, nor had he been
appointed manager by the directors; nor had they power
to appoint a manager outside their own number; but he
was secretary of the company, made contracts for the
company as manager, had called one general meeting of
the shareholders, and had threatened to call another in
opposition to the directors themselves. During the pre-
ceding calendar year no general meeting had been held,
and no list forwarded to the registrar, but these proceed.
ings were taken before a complete year of the company's
existence had elapsed without a meeting, the require-
ments of the Act having been complied with in the
previous year Held, upon a case stated by the convicting
justice, that the Act requires a general meeting, and a
list of members, each calendar year. Held also by
Blackburn and Lush, J.J. (dissentiente Quain, J.), that the
appellant was liable for the company's default, although
not manager de jure, and although no general meeting
had taken place
Memorandum and articles of association, variance between
-Construction-Power of directors-Mortgage of unpaid
capital-Future calls.-Where there is a variance between
the memorandum and articles of association of a joint-
stock company (limited), the memorandum does not
necessarily control the articles, but the ordinary prin.
ciples of construction, with regard to contemporaneous
documents, must be applied; that construction must, if
possible be adopted which will make them consistent with
each other, and any ambiguity of expression in the one may
be explained by reference to the other. By sect. 3 of the
memorandum of association, the object of the P. Company
(Limited) was, amongst other things, stated to be the
raising money for the purposes of the company, "upon
mortgage or charge of any property of the company, or
upon the debentures, bonds, bills, or notes, or any other
security of the company." By sect. 128 of the articles of
association the directors were expressly empowered to
raise money by mortgaging unpaid capital and future
calls. Held, that the directors had power to make an
effectual mortgage of future calls
854
Mortgage Property-Future calls.-A power in the deed
of settlement of a joint stock company, authorising the
directors to mortgage the property of the company, gives
them no authority to include future calls in such mort-
gage. Judgment of the court below reversed
Patent-Agreement by vendee to form a company-Subse-
quent agreement by vendee with trustee of company-
Prospectus, no notice of first agreement in-Promoter-
Fraud-The Companies' Act 1862, s. 35-The Companies"
Act 1867, s. 38.-In July 1873, A. agreed with a patentee
to purchase his patent for £65,000, to be paid partly in
cash and partly in fully paid-up shares in a company to
be formed by A., "with the object of acquiring and
working the patent;" and A. also agreed that he would,
"with as little delay as possible, endeavour to form or
cause to be formed," such a company. In Oct. 1873, A.
entered into a contract with B., "the trustee for and
on behalf of a company to be forthwith formed and
registered," by which A. agreed to sell the patent
to the company for £125,000, to be paid partly in
cash and partly in fully paid-up shares, and stipu
lated that he was to be the first managing director
of the company. The company was registered in Nov.
1873, and a prospectus was issued which stated only
the contract between A. and B. On the faith of the
prospectus C. applied for and was allotted ten shares in
the company. Shortly afterwards, proceedings being in-
stituted for the voluntary winding-up of the company, C.
became aware of the first agreement, and thereupon
sought to have her name removed from the register of
shareholders on the ground that she had no notice of the
first agreement when she applied for shares, and that its
omission from the prospectus was, under sect. 38 of the
Companies' Act 1867, fraudulent on the part of A., who
had purchased the patent as a promotor for the purposes
of the company. Held, that A., in the absence of evi-
dence to the contrary, was not a promoter of the com-
pany at the time he entered into the agreement of July,

...

...

...

...page 301

272

575

1873. Held, also, that the remedy of a shareholder under
sect. 38 of the Companies' Act 1867 is a personal remedy
against the promoters, directors, and officers of the com-
pany, and one which, by itself, does not entitle the share-
holder to have his name removed from the register of
members
Power of the court to amend application-Running powers-
Effect of agreement in control-Measure of payment for
exercise of running powers.-The court has power to
amend an application by adding a new party to the appli-
cation. The C. Ry. Co. was amalgamated with the A. Ry.
Co. in 1864. The line of the B. Co., incorporated in 1862
by Act of Parliament, runs in a direct course from B. to
D., which is a continuation of a line from R. The whole
line from D. to R. is worked by the G. W. Co. under
agreements with the different companies owning the
various parts. These different companies have all running
powers over the A. Co.'s line by Act of Parliament. The
A. Railways Act of 1865 grants to the B. Ry. Co., and any
company lawfully using their railway, power to use the
D. railway, which belonged to the C. Ry. Co., upon an
application by the B. Co. for leave to avail themselves of
the above running powers. Held, that it was no objec-
tion to the application that the B. Co. were not them.
selves carriers, or possessed of rolling stock; nor would
the fact that their line was maintained and worked by the
G. W. Co., prejudice their claim, provided the G. W. Co.
were made parties so as to be bound by the decision
Railway companies-Running powers-Construction of in-
definite agreement-Whether perpetual.-The appellant
company agreed with the respondent company that,
subject to such bye-laws and regulations of the appellants
as might be in force from time to time, the respondents
should have running powers over the lines of the appel-
lants; that the receipts from the through traffic should
be apportioned in proportion to the mileage of the two
companies, with an allowance to the respondents for
working expenses; that the respondents should, if re-
quired by the appellants, carry local traffic, but should
not do so without their consent. There was extrinsic
evidence that the principal consideration for the agree
ment was a large loan made by the respondents to the
appellants, but this did not appear on the face of the
agreement. Held (affirming the judgment of the court
below), that the agreement, being on the face of it in-
definite and unlimited as to time, must be taken to be
perpetual, and not to be determinable by notice on either
side
Sale of leaseholds-Agreement by authorised agent-
Statute of Frauds.-An agreement for the sale of cer-
tain leasehold houses, the property of a company incor-
porated under the Companies Act 1862 was signed as
follows: "A., Secretary for the B. Company Limited."
The Companies Act 1867, s. 37, sub-sect. 2, provides that
such an agreement may be signed on behalf of the com.
pany, by any person acting under the express or implied
authority of the company. It appeared from the memo-
randum of association that one of the objects of the
company was to sell houses. Held, on demurrer, that,
as selling houses was part of the ordinary business of
the company, the secretary in signing was acting under
the implied authority of the company; and that, there-
fore, the agreement was sufficient to satisfy the Statute
of Frauds. The bill alleged that the agreement was
signed on behalf of the company by A., the secretary,
who was their authorised agent. Held, a sufficient alle.
gation that A. was their authorised agent in that behalf. 571
Shareholder-Removal of name.-The Court of Exchequer
will not, where complete jastice cannot be done, direct
the name of a shareholder in a public company to be re-
moved under 25 & 26 Vict. c. 89, s. 35. Where, therefore,
a person has been induced by a prospectus, in which no
mention was made of a certain contract between some of
the directors of a company and the promoters, entered
into before the formation of the company, and relating to
its formation, to take shares in the company, he will not
upon application made upon discovery of the omitted
contract, be entitled to have his name removed from the
register of shareholders, even though the omission to
mention the contract in the prospectus was fraudulent, if
it appears that he has paid up a portion or the whole of
the price of the shares, and has received dividends in
respect of them in ignorance of the existence of the con-
tract so omitted
...page 536
Shares registered in joint names-Death of joint owner-
Joint or several covenant-Joint Stock Companies Act
1856, s. 10.-In 1857 A. and B. were the joint owners of
shares in a company, being, in fact, trustees of the shares.
A. died in 1861. Held that A. and B. must be considered
as having entered into a joint covenant under sect. 10 of
the Joint Stock Companies Act 1856, the liability under
which survived to B.
Trustee-Equitable mortgage-Breach of trust-Certifi-
cates of shares-Registration. H. was director of a com-
pany, and was the registered proprietor of certain shares,
which he held as trustee for the company. R., believing
H. to be absolute owner of the shares, lent money to him
upon the deposit of the certificates as security. No
transfer was executed, and no notice of the transaction
was given to the company. After R.'s death, the company
discovered the fraud of H., and gave notice toR.'s executrix

...

...

...

747

that H. held the shares as trustee. After this notice H.
executed a transfer of the stock to the executrix; and she
then required the company to register the transfer, and
her name as proprietor of the stock, which they refused
to do. Upon an application for a peremptory writ of
mandamus to compel them to do so. Held (reversing the
judgment of the court below), that the executrix was not
entitled to a mandamus, for that H. could not give a
third person any title to the shares as against his cestuis
que trust, in the absence of any fraud or misrepresentation
on their part; and that the fact that he was in possession
of certificates which imported that he was absolute
owner of the shares did not preclude the company from
setting up their right as against a bona fide mortgagee
without notice. Rice v. Rice (2 Drew. 73), and Waldron v.
Sloper (1 Drew. 193) distinguished

...page 283

Undue preference-Arbitrary distinctions on traffic-In-
junction-Costs.-A coal company which raised cannel
coal only, a kind of coal (used for making gas) that
fetched a higher price than ordinary house coal or splint,
another species of gas coal, was charged a higher rate for
carriage than was charged for the conveyance of the other
kind of coal. Held, that this was an undue preference,
so far as regarded the distinction between cannel and
splint, inasmuch as splint and cannel coal must be re-
garded as competitive. Where a case is the first of its
kind, the Commissioners will make no order as to costs... 270
tra vires-Bill by shareholder.-A bill filed by a share-
holder on behalf of himself and all other shareholders in
a company against the company, the directors thereof,
and the promoters of a Bill which had been before Parlia
ment for incorporating an opposition company, alleged
that the directors had entered into an agreement with
the promoters to pay to the latter the sum of 5500l., in
consideration of their withdrawing their Bill, and had in
pursuance of such agreement paid the 55001.; and also
alleged that such agreement was corrupt and the payment
illegal, and prayed that the directors and promoters might
be ordered to repay and replace the 55001., with interest.
On a demurrer to the bill being filed by the promoters.
Held, that the facts stated in the bill did not show that
the transaction was beyond the powers of the company.
and that the general rule, as laid down in Foss v. Harbottle
(2 Hare, 461), that where there is a corporate body
capable of filing a bill torecover property, either from
its directors or any other persons, that corporate body is
the proper plaintiff, applied; and that the facts disclosed
did not bring the bill within any of the exceptions to such
general rule stated in that case. The demurrer was
accordingly allowed

WINDING-UP.

Appointment of liquidators-Notice of meeting for the
purpose-Interest of unpaid calls-3 & 4 Will. 4, c. 42, 8.
28.-A company gave notice of a meeting to be held for
the purpose of obtaining a dissolution in such manner as
they might be advised. The meeting was held, and a
resolution passed for winding-up on such terms and
conditions as and in which the board should think fit.
At a subsequent meeting liquidators were appointed:
Held, that although no notice of the intention to appoint
liquidators had been given, they were validly appointed.
The Stearic Acid Company (11 W. R. 980) observed upon.
The articles of the company provided that calls should be
made at the discretion of the directors, and that no calls
should exceed £2 per share, and that in default of pay-
ment of a call for twenty-eight days, £10 per cent.
interest should be paid thereon. The liquidators made a
call of £3 per share, to be paid by a certain day, but did
not state whether or not interest would be charged in
default. On default being made by some shareholders,
the liquidators claimed the call with £10 per cent. interest.
Held, that the article as to calls referred to calis by the
directors only, and that the liquidators were entitled to
the call of £3 per share, with interest at £5 per cent.
under 3 & 4 Will. c. 42, s. 28...

English and Indian shareholders-Contribution-Register
-The Companies Act 1862, ss. 25, 26.-B., under instruc-
tions from the board of directors of a company registered
in England, went to India for the purpose of getting
shares in the company taken up there. A large number
of shares were allotted in India by B. The names of
the Indian shareholders were registered in a book kept at
the company's office in Bombay, but not in the books at
the London office, and no return of their names was ever
made to the Registrar of Joint-stock Companies. In 1867
the company was wound-up, and in 1869 the English
shareholders were placed on the list of contributories,
and calls made on them, by means of which all the debts,
&c., were paid. In 1874 the official liquidator filed a sup-
plemental list of contributories, on which he placed all
the Indian shareholders, with a view of making them
contribute rateably to the debts which the English
shareholders had paid. Held, that S., whose name was
on the register which had been kept at Bombay, and who
had accepted shares and paid calls on them, was properly
placed on such supplemental list. Held, also, that under
sect. 25 of the Companies Act 1862, which requires a
register of shareholders to be kept "in one or more
books," a company which has foreign as well as English
shareholders can keep a register abroad as well as at
home

685

361

299

Petition Statement in petition that petitioner had not paid
his calls.-A petition for winding-up a company presented
by a shareholder who, at the date of such presentation,
is in arrear of payment of calls due from him to the com-
pany will, on that ground, be dismissed

...page 143

Necessary allegations-Companies' Act 1862 (25 & 26
Vict. c. 89), s. 9.-A petition for the winding up of a
company must state on its face a sufficient case for
winding-up, otherwise the petition will be dismissed,
although the petitioner is able to prove a case which
would justify the making of a winding-up order, for he
cannot be allowed to prove a case which he has not alleged
on his petition ...
- Advertisement, error in-Seven days' rule relaxed
-Similar petitions pending in other branches of the
court-Title of petitioner-Agreement.-A company being
admittedly insolvent, the court made a compulsory wind-
ing-up order on the petition of a shareholder, whose inte-
rest did not exceed £25, although the petition was op-
posed by the company and a large body of creditors and
shareholders, and notwithstanding that three credi-
tors' petitions were pending in other branches of the
ecurt, and that a meeting of the shareholders had been
called to pass resolutions for a voluntary winding-up, and
to adopt an agreement (conditional on there being a volun-
tary winding-up) entered into with the largest creditor,
which would be very beneficial to the company ...
Practice-Claim for damages-Trial by jury-Appeal-En-
rolment of order after time-In the winding-up of a com-
pany a claim for damages against the company for a very
large amount was carried in. An application to the court
by the official liquidator, that the evidence on the claim
might be taken vira voce in court and before a jury, was
dismissed with costs. More than a year afterwards, the
official liquidator moved for leave to enrol this decision,
with a view to presenting an appeal to the House of
Lords: Held (affirming the decision of Bacon, V.C.), that
the direction of a judge as to the mode in which the claim
should be tried was an order made in the exercise of his
discretion, from which an appeal would not lie
-Claim for damages-Trial by jury - Discretion
of judge-Appeal-Enrolment of order after time-The
Companies Act 1862, s. 124-Cons. Gen. Ord. xxiii,
I. 26. In the winding-up of a company a claim for
damages against the company for a very large amount
was carried in. An application to the court by the official
liquidator that the evidence on the claim might be taken
vivú voce in court, and before a jury, was dismissed with
costs. More than a year afterwards the official liquidator
moved for leave to enrol this decision, with a view to
presenting an appeal to the House of Lords. Held, that
the direction of the judge, as to the mode in which the
claim should be tried, was an order made in an exercise
of his discretion from which an appeal would not lie
Promoters-Misrepresentation by agent of-Contract of
indemnity.-S., N., and M., projected a railway at B., and
an agent was sent to the locality to obtain signatures to
the subscription contract, which was necessary to obtain
the passing of an Act of Parliament authorising the con-
struction of the line. The Act was passed, but the line
was not made. Ultimately the undertaking was aban-
doned, and the company ordered to be wound-up. The
official liquidator placed all the signatories to the sub-
scription contract on one list of contributories. Sixty-
six of the contributories, alleging that each of them had
been induced to sign the subscription contract by the re-
presentations of the agent, and that such representations
amounted to a contract to indemnify each of the n against
all liability unless the line were made, applied to have
S., N., and M. (who had also signed the subscription
contract), placed on a separate list as being primarily
hable for all the debts of the company. Held, that the
evidence failed to prove any such contract of indemnity,
or that the agent was authorised to make any such repre-
sentation. Held, further, that even if the agent did
make the representation it was not within the scope of his
authority to make it. Held, also, that assuming there
was a contract of indemnity, it was a contract which was
not within the meaning or scope of the adjustment clause,
and, therefore, could not be enforced in the winding-up.
Semble, the remedy of the shareholders was an action at
law ...
Mutual Insurance Company.

...

...

(See Insurance: Marine.)
Surplus assets-Preference shareholders-One of the
articles of association of a joint stock company provided
that the company in general meeting might increase its
capital by the issue of new shares, "with or without
special privileges or preferences to the holders" thereof.
All the original shares were issued. At a general meeting
it was resolved that a certain number of new shares
should be issued, entitled to a certain preferential in-
terest, the amount of such shares to be repaid as therein
mentioned, "such payment of interest and repayment
to take place before any interest or other money is payable
to the original shareholders." The company was being
wound-up; all its debts had been paid; the surplus assets
were insufficient to pay the preference shareholders in
full: Held, that as the articles of association authorised
the creation of preferential capital, and such capital had

314

589

347

86

592

...page 389

been duly created, the surplus assets must be divided
rateably among the preference shareholders only, in
priority to the ordinary shareholders.
Voluntary winding-up-Misconduct of liquidator-Alleged
disputed debt-Rights of creditors prejudiced-Com.
pulsory order-The Companies' Act 1862, s. 145.-A com-
pany, under the powers contained in their articles, issued
debenture bonds to the extent of 35001., which were made
a first charge on the property of the company. A. became
the holder of four of these bonds. Afterwards the share-
holders duly passed resolutions that the company should
be wound-up voluntarily, and two liquidators were ap-
pointed. One of the liquidators paid some of the bonds
in full; on others he paid a composition, retaining the
difference between the composition and the full amount
due on the bonds in satisfaction of moneys due to him in
respect of business transactions between himself and such
bondholders. A. applied for payment of the amount due
on his bonds, but was offered a composition of 12s. in the
pound thereon. The realised assets of the company had,
at the first, been quite sufficient to pay in full all the
bonds issued. On a petition by A., under sect. 145 of the
Companies' Act 1862: Held, that A.'s interests were
being prejudiced by the manner in which the voluntary
winding-up was being carried on, and a compulsory order
was therefore made

COMPENSATION.

(See Grant of Land.)

Telegraph Act 1868-Telegraph superintendent of railway
company-Superintendent of telegraph company-Right
to compensation for loss of office.-Sub-sect. 7 of sect. 8
of the Telegraph Act 1868 (31 & 42 Vict. c. 110) applies
only to the three telegraph companies na. ed at the
beginning of sect. 8; and, therefore, the telegraph super-
intendent of a railway company is not entitled to com-
pensation for the loss of his office, when the telegraphic
business of the company is acquired by the postmaster-
general. The superintendent of one of the three named
telegraph companies was held entitled to compensatio
in respect of profits on allowance for expenses while
travelling on the company's service...

COMPETITION.

...

(See Railway Companies.)

COMPOSITION.

(See Bankruptcy.)

COMPROMISE OF MISDEMEANOR.

Duress-Libel-Repeated publication.-Where an offence is
of such a nature that the person injured may obtain either
a civil or a criminal remedy, there is nothing unlawful in a
compromise of criminal proceedings taken against the
offender. The defendant company indicted the plaintiff for
a nisdemeanor under the 3rd section of the Merchandise
Marks Act 1862 (25 & 26 Vict. c. 88), but, upon his under-
taking to give an apology, they allowed a verdict of not
guilty to be entered. The plaintiff accordingly signed a
letter of apology, authorising the defendant company to
make such use of it as they might think necessary. The
defendant company having published the apology as an
advertisement every day for nearly two months, the
plaintiff filed his bill to restrain them from continuing
to do so. Held, that the agreement to give the apology
was not void as made under duress, that the compromise
of the criminal proceedings was not unlawful, and that
the defendant company could not be restrained from con-
tinuing to publish the apology.

...

COMPROMISE OF SUIT.
Construction of agreement for-Payment of money-Verdict
by consent-Breach of agreement-Remedy-Right of
action. The present defendants,as executors, propounded
the will and codicil of their deceased testatrix in a suit in
the Court of Probate, the grant of probate being resisted
by the present plaintiff on various grounds. Upon the
cause coming on for trial a compromise was come to in
open court between the parties, who entered into and
signed an agreement prepared by the counsel on both
sides, in the following terms; "in consideration of the
defendant withdrawing from opposition to proof of the
will and codicils, the plaintiffs undertake to pay to the
defendants within fourteen days the sum of 58501., and a
further sum of 7501. for costs, and thereupon the defen-
dants and the other residuary legatees will, if so required,
release by deed all claim to the residue. Probate not
to issue till after the payment of the above sums, and the
case to be adjourned for that purpose. In default of pay-
ment of the above sums within the time specified the
defendants to be entitled to have the case called on for
hearing, and to take a verdict by consent upon all the
issues. Held, that the stipulated sums not having been
paid, the plaintiff was entitled to maintain an action at
law for their recovery, and that the final clause of the
agreement providing for the taking a verdict in the
Probate Court in default of payment of those sums did
not exclude or preclude the plaintiff's remedy by action
for breach of the agreement

15

559

628

234