difference relating to the rating of the waterworks were referred to arbitration by an agreement between the assessment committee and the appellants, with power to the arbitrator to direct at what amount the appellants had been or should be rated before the making of the award, and to order the return of the excess, if any, of any sum paid by them to the overseers of the parish. The award was not made for eighteen months, and in the meantime several rates had been made by the overseers of the parish on the appellants, and paid by them, under protest, but without giving notice of appeal or taking any steps to dispute such rate. By the award the rateable value was largely reduced, and the amount paid by the appellants in excess of the sums due, according to the value so fixed, was ordered to be repaid, not only on the rate appealed against, but also the intermediate rates, and the overseers were also ordered to repay out of the next rate the balance due to the appellants, and overpaid by them. The overseers paid the difference on the rate appealed against, but refused to refund the difference on the other rates, on the ground that the assessment committee had acted ultra vires in referring those matters; and upon a rate being made upon the award, which the appellants refused to pay, setting up the award, obtained a distress warrant from the justices, and levied for the amount. The appellants thereupon replevied in the County Court, and now sought by the present rule to restrain all further proceedings by the Overseers. Held, that the overseers had acted contrary to good faith, and upon the authority of The London and North-Western Company v. Bedford (17 Q. B. 978), that this court would interfere to stop their further proceeding...

...page 752

Land used for digging coprolites - Shifting occupation-The appellant had, by agreement with the owner, the exclusive privilege of occupying certain lands for the purpose of digging for and getting coprolites. He paid £115 per acre dug, and was bound to dig enough to pay the landowner £1000 a year, or, if he did not dig enough, still to pay that amount. He was not entitled to use the land for any agricultural purpose, and was bound to replace and level the soil. He was always in possession of ten acres during at least one whole year, but only about two-and-a-half acres were dug over in each quarter, and one acre was always used for mills and tramways. He did not necessarily occupy the same ten acres during all the year, nor during the whole of any quarter, but his occupation was a shifting one, and fresh land was constantly being taken on at one end, and that which had been levelled relinquished at the other. The value for raising coprolites was £115 per acre, but this was realisable once only. Each acre was occupied for getting the coprolites for three months, and the land was not levelled and restored to the agricultural tenant until after a period of from one to two years, during which time the Occupation was valueless. The rates were made quartorly. Held, by Mellor, Lush, and Archibald, JJ. (Cockburn, C.J. dissenting), that the appellant was liable to the rate in respect of ten acres at the coprolite value ... Real estate-Rentcharge in lieu of tithes.-Whenever it is sought to impose a rate, the burden lies on those seeking to enforce it to show that the words used by the Legislature are clear and unambiguous in order to charge the subject. An Act of the Legislature imposed a rate on lands" and other real estate": Held (reversing the judgment of the court below), that although these words were large enough to include a rentcharge in lieu of tithes, they would not necessarily do so if it appeared from the general wording of the Act that it was not intended to apply to incorporeal rights... 746

RECEIVER.
(See Bankruptcy.)

RECTORY HOUSE.

(See Glebe Land.)

REFERENCE. (See Arbitration.)

RE-INSURANCE. (See Insurance: Marine.)

REREDOS.

(See Ecclesiastical Law.) RESULTING TRUST. (See Gift.)

SALE OF GOODS.

sample-Bulk not up to sample-Whether obligation to return goods to vendor.-The rejection of goods as not up to sample does not oblige the purchaser actively to return them. The plaintiff sold the defendant tares by sample, and delivered the bulk to the defendant eight days afterwards, the cart of the plaintiff conveying it one half of the way to the defendant's barn, and the cart

633

of the defendant conveying it the other half. The defendant, inspecting the tares on the day of delivery, tound that they were not up to sample, and at once wrote to the plaintiff to that effect, and, after the writing, but before the receipt of the letter, the defendant, meeting the plaintiff, told him that the tares were in his (the defendant's) barn, that they were bad, that he would not have nor pay for them, and that the plaintiff might do what he liked with them. The County Court judge having found as a fact that the tares were not up to sample, and that the defendant had accepted them within the meaning of the Statute of Frauds, he gave judgment for the plaintiff on the ground that the defendant was bound in law to return the tares to the plaintiff. Held, that, assuming an acceptance within the Statute of Frauds, the defendant was not so bound, and the judgment of the County Court for the plaintiff reversed. Semble, per Lord Coleridge, C. J., that there was evidence of an acceptance within the Statute of Frauds Contract to pay by "cash against bill of lading"-Delivery "free on board"-Part payment of price-Putting of goods into sacks of purchaser-Supposed short quantity -Refulsal by purchaser to pay balance-Sale to third party-Whether property had passed-Whether trover maintainable

...page 490

Contract to accept delivery of iron by monthly instalments -Action for non acceptance-Parol extension of timeStatute of Frauds, s. 17.- In March 1873, the plaintiff, by contract in writing, agreed to deliver, and the defendants to accept, 100 tons of iron by monthly instalments during March, April, May, and June. After seventy-five tons had been delivered it was verbally agreed between the parties (in the month of June) that the time for further delivery should stand over. In August, the plaintiff, in writing, requested the defendants to accept the instalment of twenty-five tons then due, and the defendants refusing, sued them within a reasonable time after such written request for non-acceptance of such instalment: Held that the plaintiff was entitled to recover, and a rule to enter a verdict for the defendants discharged

(See Contract for Sale-Lien-Practice: Common Law.) Delivery at a future time-Construction of contract-Fines for default in delivery when payable.-Defendants sold rails to plaintiff according to specification, which provided as follows: "The delivery to commence by 15th Jan., and to be completed by 15th April 1873" (afterwards altered by mutual agreement to 15th Feb. and 15th May), "The makers to have the option to begin delivery on 15th Dec. 1872. In the event of the makers exceeding the time of delivery above stipulated, they shall pay by way of fine the sum of 78. 6d. per ton per week." Most of the rails were not delivered until after 15th May. Held, on a special case stated by an arbitrator, that the fine of 78. 6d. per ton per week was to be calculated from 15th May on all the rails not then delivered, and not from any earlier date on any portion...

(See Bankruptcy.) Non-delivery-Measure of damages.-Where goods which cannot be procured in the market are sold to be delivered on a day certain, the purchaser is entitled to recover, in an action for breach of contract to deliver, the amount which he has reasonably expended to avert the loss which he would otherwise have sustained from non-delivery. L. agreed to deliver shirtings to H. on a day certain. L. knew that they were for shipment abroad, but did not know that H. had made a sub-contract. L. failed to deliver, and H., being unable to procure similar shirtings in time to fulfil his sub-contract, bought the nearest in quality which he could get, but at a higher price, and sued L. for non-delivery. Held, that H. was entitled to recover the full amount of the difference between the contract price and what he had paid, and a rule to enter the verdict for the defendants or to reduce the damages discharged

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451

...page 419

(See Vendor and Purchaser.) Conveyance executed-Title wholly bad-Whether purchase money recoverable-Money had and received. -After conveyance executed the purchase money of land sold without title is irrecoverable. The defendants, being the executors of L., sold and conveyed to the plaintiff certain leasehold houses, which were, in fact, the property of L.'s widow, but were believed by the defendants to have been the property of L., and to form part of his estate. The purchase money, after satisfying a mortgage debt contracted by L.'s widow, was devoted to paying L.'s debts. L.'s widow afterwards, by bill in equity, compelled the plaintiff to reassign the houses to her, whereupon the plaintiff, in an action for money had and received, sought to recover the purchase money from the defendants as paid under a mistake, and upon a consideration which had wholly failed. Held, that the purchase money was irrecoverable, and a rule to set aside a nonsuit discharged...

SALVAGE.

By steamtugs near a port-Derelict-Apportionment.The ship P., in endeavouring to enter the harbour of New York, struck on the False Hook, a bar running parallel to Sandy Hook. The channel to the west, between it and Sandy Hook, is about 300 yards wide, and to the east of it is the open sea. The wind was blowing a gale directly on shore, and the ship grounded so hard on the shoal that in fifteen minutes she had 8ft. of water in her, and soon after portions of her keel came up along. side. A powerful tug, the C., came near her, and the captain and crew of the ship, thinking that the ship would not come off from the shoal, left her and went up to New York in the C. Another tug, the W., had also in the meantime approached; but her captain, seeing the condition of the ship, also thought she would never come off, and she went away looking for other business. About an hour afterwards two other tugs, the J. G. N. and the J. M., seeing the flag of distress which had been left flying, went to the ship and found her abandoned. They lay by her, and after a while found that she was moving, and was about to come off the shoal on the inshore side. Having agreed to share in the salvage, they ran in close to her, and put on board four men, and got a hawser to her, when she came off the shoal, and they succeeded in towing her round the point of Sandy Hook into the Bay, where they put her on to the mud, pumped her all night, and the next day at noon brought her to a dock in safety. When the captain of the W. saw the ship moving he came up also and offered his assistance to the two tugs, which then were towing the ship, but it was refused. The captain of the ship, on the tag C., on his way up to New York, left word with a wrecking company to be ready to go to the ship. He left his crew in New York, and the next morning early he went himself on board the C. to look for the ship, and found her on the mud in charge of the salvors. The owners of the two tugs filed a libel for salvage. The owners of the C. also filed a petition claiming salvage. The ship and her cargo and freight were worth from 225,000 to 237,000 dols. The tugs were worth, one of them 9000 dols., and the other 17,000 dols. Each of them had a crew of six, all told, and on one of them was a boy who had gone with the tug for a pleasure trip. Held, that in view of the peril to the property, the value of the property saved, the risk of loss of the tugs, and the danger to the lives of their crews (although such danger and risk was not excessive, and the services did not extend over about twenty hours), the sum of 30,000 dols. was a proper amount of salvage to be paid to the two tugs. That the C. was not entitled to recover salvage. That the amount of salvage be divided equally between the two tags; that the masters of them receive 3000 dols. each; that the men who went on board the ship, and especially one who took charge on board of her, receive a higher rate than their fellows, and that the rate of wages afforded a proper criterion by which to fix the shares of the men ...page 373

SCHOOL FEES.

Resumption of cohabitation-Avoidance of deed-Equity to a settlement.-Previously to her marriage with R, in 1863 C. was entitled to a sum of money secured by B.'s promissory note. There was issue of the marriage one child born in 1866. In 1867 R. and C. separated, and a deed of separation was executed by which B. covenanted to hold the sum due from him in trust for C. during the joint lives of B. and C., and if C. should survive then for her absolutely, but if R. should survive then to R. for life, with remainder after the death of the survivor for H. their infant child. R. and C. resumed cohabitation in 1871. C. filed a bill praying that the deed might be carried into execution, or that she might be declared entitled to an equity to a settlement in respect of the fund. Held, on demurrer, that the separation deed was not avoided by the renewal of cohabitation; held also that B. had, by becoming a trustee, converted the debt into an equitable debt, and that C. was entitled to have the trusts of the deed carried out or to assert an equity to a settlement out of the fund

SETTLEMENT.

320

236

Construction-"Survivor" construed as "other." The word "survivor" may be read as meaning "others" in a settlement where, from the context, it is evident that it was so intended, although the same word in other parts

of the settlement is used with its primary meaning. By deed dated 1824, E. and, S. spinsters, settled funds in trust for themselves in equal shares for life, and after the decease of either of them without issue in trust as to a moiety of the income for the survivor for life, and in case either or both died without leaving children, then as to the income of her moiety in trust for the survivor of E. and S. with remainder to her children. E. died in 1868, leaving two children. S. died in 1873 without having been married. Held, that the word "survivor" in the gift over of S.'s moiety, contingent on her dying without leaving children, might be read as "other," and that the children of E. were entitled to it. ...page (See Bankruptcy-Lunacy-Poor Law- Shares Voluntary Settlement.) SHARES.

...

Contract for the sale of shares in a projected companyAlteration in name, capital, and object of the companyBill by several purchasers of shares to enforce the contract-Mutuality-Form of suit - Misjoinder - Multifariousness-Specific performance.-The owners of an English patent, and of certain foreign patents obtained for the me invention, agreed with A., in consideration of pecuniary advances made by him to them, to procure the transfer to him of certain fny paid up shares in a proposed company, to be formed with the object of pur. chasing their English and foreign patents, and which were to be allotted to them in part payment of their interests in the patents. The company was to be called the Non-Radiating Steam Engine Company, and was to have a capital of 220,000l. The patentees also appointed A. their agent for the sale of a certain number of the shares that were to be allotted to them as aforesaid in such company, and it was arranged that the shares which A. should obtain for his advances should be applied towards fulfulment of the contracts which he, as their agent, should enter into with purchasers of shares. Under these arrangements, A. became entitled to 847 shares, and sold 224 shares to various persons. The scheme of the company, as at first proposed, was abandoned, and the patentees brought out a company called the Patent Steam Engine Company, with a capital of 100,000l., and formed with the object of purchasing the English patent only-The patentees then refused to transfer any of the shares which they had acquired in the second company to A., and the several persons to whom he had sold shares. On a bill by A. and the several purchasers of shares from him to enforce specific performance of the arrangements which had been entered into between A. and the patentees. Held, that the second company comprehended, in effect, the substance of the contract which existed between the parties, and that an objection for want of mutuality in the contract could not be sustained.-Held, also, that an objection for multifariousness, on the ground of misjoinder of plaintiffs, and that each plaintiff ought separately to make out his own case, could not, under the circumstances, be sup. ported Custom of Stock Exchange-Infant transferee-Liability of jobber. The respondent through his broker contracted with the appellant, a jobber on the Stock Exchange, for the sale of some shares in a company. On the name day the appellant gave in to the broker a ticket with the name of L. as the intended purchaser. A transfer to L. was accordingly executed by the respondent, but it was afterwards discovered that he was an infant, and that the trausfer was never registered. The respondent thereupon filed a bill against the appellant for an indemnity against calls. Held (affirming the judgment of the court below), that the jobber, not having given the name of a transferee against whom the obligation to take the transfer could be enforced, was not discharged from liability, although the time limited by the rules of the Stock Exchange for objecting to a proposed transferee had expired before the execution of the transfer Joint ownership-Survivorship.

(See Company.)

Settlement-Payment of calls by tenant for life-LienInterest.-Shares were settled on a married woman for life, with remainders over. At the request of the trustees, who had no money avaiable for the purpose, she advanced sums out of her separate estate for the payment of calls on the shares. On her death a bill was filed by her legal personal representative, claiming a lien on the shares for the amount advanced, together with interest from her death. Held, that the plaintiff was entitled to have the amount advanced and interest raised by sale of the shares (See Company.)

SHIP AND SHIPPING. Arrest of foreign ship

56

623

8

9

Africa, which goods, on the arrival of the Liberia at Bouny, were in the usual course of the defendants' business, and according to the terms of the bill of lading, transshipped on board the Kwara, a small branch steamer belonging to the defendants, to be forwarded thereby to their destination at Benin. The Kwara, with the plaintiff's goods on board, left Bonny, and proceeded on her voyage to Benin, calling on her way at Brass, where she had both to discharge and to take in cargo. Whilst lying in the harbour at Brass, and after having discharged and taken in cargo, and within two or three hours of being ready to proceed on her onward voyage to Benin, the Kwara was taken by her captain at the request of the captain and owners of another vessel, to the mouth of the Brass river, some three miles from the harbour, for the purpose of towing off such other vessel which had got stranded on the breakers in attempting to cross the bar at the entrance of the river, and in her efforts to tow that vessel off, the Kwara herself, in consequence of her screw getting fouled with a rope, was wrecked and the plaintiff's goods were lost. It did not appear that human life was in any imminent danger, or that the assistance of the Kwara was sought for, except to save property. The bill of lading, given by the defendants on receiving the goods at Liverpool, contained a clause giving to their vessels "liberty to tow and assist vessels in all situations;" and also a memorandum in the margin as follows: "The within goods to be transshipped at at Bonny, and forwarded to destination by branch steamer at ship's expense, but shipper's risk." In an action by the plaintiffs to recover the value of their goods, they obtained a verdict, with leave to the defendants to move to enter it for themselves, and on argument it was Held, by the Court of Exchequer (Bramwell, Pollock, and Amphlett, BB.), making absolute the rule to enter the verdict for the defendants: First, that, under the express words of the clause in the bill of lading giving liberty "to tow and assist vessels," &c., the Kwara was justified and protected in going to the assistance of the other vessel in the manner and under the circumstances stated; and, secondly, that the words in the margin of the bill of lading "at shipper's risk," applied, as did also the words "at ship's expense." to the transshipment only of the goods from the one vessel to the other at Bonny, and not to the "forwarding of them from Bonny to Benin."

Charter-party-Demurrage

...

(See Contract.)

...page 257 670

Collision-Ship_forced into collision by wrongful act of third party-Liability.-Where a steamship, in order to avoid collision with another ship, is obliged by the wrongful act of that other ship to take measures which bring her into collision with a third ship, without any negligence on her own part, the Court of Admiralty will not hold her responsible for the damage to the injured vessel. Semble, that the owners of the injured vessel should proceed against the original wrongdoer

...

Merchant Shipping Act 1873 Lights - Visibility of obstruction of-Screens. A ship, to be deemed in fault under the Merchant Shipping Act 1873 (36 & 37 Vict. c. 85), sect. 17, for having infringed any of the regulations for preventing collisions, must have infringed those regulations in such a manner that the infringement is material to the case before the court, and is such as might by possibility have caused or contributed to the particular collision; a mere infringement which by no possibility could have anything to do with the collision, will not render the ship liable A ship carrying side lights which are visible only at the distance of about a mile, instead of at a distance of two miles, as required by the regulations, infringes those regulations so as to make her liable to be deemed in fault under the statute... Compulsory pilotage-Ship carrying cargo and passengers from Boulogne to London.- A steamship carrying cargo and passengers from Boulogne to London is not bound under the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), to employ a pilot whilst navigating the river Thames, the general exemption continued from 6 Geo. 4 c. 125, sect. 59, and the order in council of 18th Feb. 1854, by the Merchant Shipping Act 1854, sect. 353, not being overriden by sect, 379, relating to Trinity House pilotage and exempting such a ship only when not carrying passengers Compulsory pilotage-Exemptions-Trinity House outport district-Particular provision-Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), ss. 353, 370, and 379-By the Merchant Shipping Act 1854, sect. 353, the employment of pilots shall continue to be compulsory in all districts in which the same was by law compulsory before. By sect. 379 ships, not carrying passengers, emploved in the coasting trade, shall be exempted from compulsory pilotage in the Trinity House outport districts, which, by sect. 370. comprise any pilotage district for the ppointment of pilots, within which no particular provision is made by any Act of Parliament or charter. By 6 Geo. 4, c. 125, s. 5, the Corporation of Trinity House were required to

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129

appoint sub-commissioners at such ports or places as they might think requisite, to examine and certify pilots. By 15 Vict. c. cxvi. (The Ipswich Dock Act 1852), s. 91, the Corportion of Trinity House were required to appoint sub-commissioners, resident within the port of Ipswich, to examine and certify pilots; the sub-commissioners to take the oath prescribed, and the corporation to give the notice directed in 6 Geo. 4, c. 125. The respondent, the master of a ship not carrying passengers, employed in the coasting trade, refused a pilot within the Ipswich district, for which, before the Merchant Shipping Act 1854. he would have been liable to summary conviction. Held, upon a case stated, that previous compulsory pilotage did not ove rule the exemptions in sect. 379; that the Ipswich Dock Act 1852 did not make a particular provision for the appointment of pilots; and that the justices were right in refusing to convict the respondent Merchant Shipping Act 1854-Measurement of shipTonnage-" Spar deck."-A vessel of the respondents had an upper deck above her main deck, but such upper deck was not continuous from stem to stern of the vessel, and the hatches and other fittings in it were not water tight: Held (affirming the judgment of the court below) that such upper deck was not a third deck or "spar deck" within the meaning of the Merchant Shipping Act 1354 (17 & 18 Vict. c. 104), s. 21, sub-sect. 5; and that the space between it and the main deck was not space available for cargo, or for accommodation of passengers or crew, within sub-sect. 4 of the same section of the Act, and consequently should not be reckoned in estimating her tonnage... Speed-Ship overtaken-No duty to show light or signal. A steamship entering a harbour at full speed on a night when ships not showing lights can be seen only at a distance of one or two cables' length, will be held to blame if she injures another ship. There is no duty imposed upon any ship to exhibit a light or signal astern to another ship approaching the former from such a direction that the regulation lights of the leading ship are not visible to those on board the following ship, even when the leading ship is in the fair way of a harbour on a night when vessels not showing lights cannot be seen at a greater distance than one or two cables' length (See Bankruptcy-Partnership-Salvage-Wages-Will.) (See Insurance: Marine).

SPECIFIC PERFORMANCE.

Contract for sale of lands-Statute of Frauds, s. 4-Description of parties-Costs.-Plaintiffs were the owners and workers of a tin and clay mine, and caused the same to be put up for sale by auction. The same was not sold at the auction, but was afterwards purchased by private contract by the defendants, who signed an agreement in writing to purchase, which was also signed by the solicitor for the vendors as their agent, but such agreement did not state who the vendors were. It appeared, however, from the conditions of sale (which were referred to and annexed to the agreement) that the vendors were the company in possession of the mine. The defendants demurred to a bill for specific performance of the contract, on the ground that there was not a sufficient description of the parties to satisfy the 4th section of the Statute of Frauds: Held, that it sufficiently appeared from the conditions who the vendors were, and from the agreement that the solicitor who sigued it was their agent...

420

Substituted contract rendered impossible of performance by death of one of two named arbitrators-Decree for performance of earlier contracts. In May 1864 a landowner agreed to withdraw opposition to a railway Bill, on the terms that the company should vary their line, and construct two bridges at right angles to the railway, with proper approaches, at places to be designated by his agent, 8. In 1867 the company took possession of the land, and paid the purchase-money into the bank, and in the same year S, gave notice to the company designating the places for the bridges. In May 1867 the landowner agreed to take 27501, for the land and severance, of which 500l. was to go back to the company for constructing the bridges askew instead of at light angles, as proposed by the first agreement, the costs and expenses to be paid by the company. These agreements were not carried out, as some difficulty arose as to a right of way crossed by one of the proposed approaches, and the company were called upon to alter such approach in one of two ways. In Feb. 1869 another agreement was entered into between the landowner and the company, whereby the company agreed to complete one approach unaltered ; to submit to S., for his approval, an estimate by their agent of the costs of making the other altered approach, and to pay the estimated amount, when agreed on by the agents as aforesaid, in discharge of all obligations as to such approach. In Dec. 1871 S. died without having had the estimate of the costs of making the altered approach submitted to him for approval. The company refusing to pay any costs beyond estimated" costs of making the approach, as provided by the last agreement, and the landowner's trustees and executors contending that, by the death of S., the agreement of 1869 could not be carried out, a bill was filed by the latter asking for specific performance of the two earlier agreements of 1864 and 1867. Held, that the plaintiffs were entitled to the specific performance of the two earlier agreements, inasmuch as by the death of S. the agreement of 1869 could not now be carried out. Held, also, that the company must pay interest on the purchase-money from the day that they took possession of the poperty ...page 219 (See Agreement for Lease-Company: Railway-Shares.)

STAKEHOLDER.

(See Criminal Law.)

STAMP DUTY.

(See Articled Clerk.)

...

STATUTE OF FRAUDS.

...

Agreement not to be performed within one year-Parol agreement for maintenance of illegitimate childrenAnnuity-Action upon an executed consideration-Count for money paid at defendant's request.-The plaintiff, a fene sole, being the mother of five illegitimate children by the defendant, ranging, at the date of the promise after mentioned, from five to fourteen years of age, the defendant, in consideration that the plaintiff would, at his request, take and continue to take the sole charge and support, and provide for the maintenance and educa tion of the said children, promised her, by parol, to pay ber a sum of 3001. a year, by equal quarterly instalments, so long as she should continue to do so. For several years the bargain was duly observed on both sides, but at Michaelmas 1870, the defendant discontinued his payments, although the plaintiff continued to keep, maintain, and educate the children as before In May 1873, she brought an action to recover the arrears of the quarterly payments for the two years and a half during which she had so continued to maintain and educate the children, and on an objection taken by the defendant that a memorandum in writing was necessary under sect. 4 of the Statute of Frauds, as the agreement was one not to be performed within a year, it was held, that the consideration being executed, the plaintiff's action was maintainable, and she was entitled to recover, as for "money paid at the defendant's request," at the fixed rate by the parol agreement; to which it was no answer to say that the agreement was one"not to be performed within a year." In substance the claim was for "money paid," although in point of form the declaration was a special contract Sect. 4-Interest in land-Licence to use graving dockCorporation-Contract with, when it may be not under seal-A municipal corporation being the owners of a graving dock, permitted the use of it to shipowners for the purpose of repairing their ships upon certain terms specified in a series of regulations. Under these it was necessary for the shipowner to enter the name of his vessel in a book kept by the Borough Treasurer and pay an entrance fee, and the use of the dock was granted in the order of priority of application, and each vessel was required to take her turn at the time of which notice was given to the owner. Certain charges were made for dockage, and it was required that they be paid before the vessel left the dock. The gates of the dock were under the control of an officer of the corporation who opened and closed them for the docking and undocking of the vessels. use of blocks and shores the property of the corpora

The

262

tion was permitted to the vessels in the dock, but the shipowners were made responsible for them, and also for cleaning out the dock daily to the satisfaction of the officer of the corporation. The plaintiff duly entered a vessel and paid the entrance fee, but the defendants adınitted another vessel in the turn which properly belonged to the plaintiff. Upon an action for damages in respect of the breach of contract in not giving the plaintiff's ship her turn in order, a verdict was returned for the plaintiff. Held, first, that the contract was not intended to be and was not concerning an interest in land, and therefore need not be in writing under the 4th section of the Statute of Frauds, and, secondly, that being a matter of frequent occurrence and of daily necessity, the case came within the recognised exceptions to the rule that a corporation can only contract under its common seal, and that this contract, though not under seal, was nevertheless binding on the defenants.

...

...

...

...page 615

(See Landlord and Tenant.) Vendor and vendee-Sale of goods-Memorandum signed by vendor's traveller-Signature of vendee's name byEvidence of agency Authority. - The plaintiff's traveller, on taking an order for goods from the defendant, wrote out, in the ordinary course of his business, in his own order book, and in the defendant's presence, a memorandum in duplicate of the order, writing therein the name of the defendant as purchaser, and handing one of such duplicate memoranda to the defendant, who kept it; and it was Held, that the traveller, in what de did, was acting in the ordinary course of his business on behalf of the plaintiff alone, and that there was no evidence that he signed, or had any authority to sign, the memorandum as the agent of the defendant within sect. 17 of the Statute of Frauds ...

STATUTE OF LIMITATIONS. Separate sums of money secured by one bond-Separate causes of action. By an agreement, a sum of 1000l., part of the purchase-money of real estate, was secured by a bond. The arrangement was that 7501, was to be paid to a person named on a given event, and the remaining 250l. to another person on another event. The event upon which the 2501. became payable happened more than twenty years before the filing of the bill, and it was alleged that that sum had never been paid. The event on which the 7501. became payable happened within the twenty years, and the 7501. was then paid. Held (affirming the decision of Hall, V.C.), that where two separate sums are secured by one boud, a payment in respect of one sum does not prevent, the Statute of Limitations running in respect of the other. The payment of the 7501, did not prevent the 2501, being barred by the statute 348

he

STEVEDORE.

(See Perils of the Sea.)

STOCK.

(See Mortgage.)

STOCK EXCHANGE. (See Shares).

Sale of prospective dividends-Rules, regulations, and usages of the Stock Exchange-Liabilities of brokers inter se-Undisclosed principal.-Although the subject matter of a contract is not recognised by the Stock Exchange Committee, and could not be enforced by them against the members, yet if a man authorise his brokers to deal in that subject matter as agents for himself as an undisclosed principal, and they in consequence acting upon that authority pay in accordance with the contract, must indemni y them. Bargains in prospective dividends are transactions which by the rules of the Stock Exchange, the committee will not recognise nor enforce. Another rule says that every bargain must be fulfilled by the members in accordance with the rules, regulations, and usages of the Stock Exchange. It was proved that there is a usage by which brokers are bound to pay to each other the differences arising upon dealings in prospective divieends. A. instructed his brokers to sell his prospective dividends on certain railway stock, and they sent him a sold note, stating that it had been sold by his order, and subject to the rules and regulations of the Stock Exchange, payable on declaration of dividend, and they subsequently paid, in accordance with the usage, to the jobbers to whom they had sold it, the difference which became due to them when the dividend was declared at a higher figure than the sold price. Held, that A. could not refuse to indemnify his brokers, on the ground that their payment to the jobbers was voluntary, and could not have been enforced, because the usages of the Stock Exchange were incorporated into the contract, and se the brokers were bound to pay

was the owner of a water meadow, which was watered by a stream called Biss Brook. Biss Brook was supplied in part by Biss Springs. The company took Biss Springs, and so diminished the amount of water in the Biss Brook, and thus caused injury to plaintiff's meadow. The company had served no notice on B. under sect. 18 of the Lands Clauses Consolidation Act; B. then filed a bill for an injunction to restrain the company from taking the Biss Springs: Held, that the Biss Brook was injuriously affected and not taken within the meaning of the 6th section of the Waterworks Clauses Act 1847, and that, therefore, the company were not bound to serve a notice on B., under sect. 18 of the Lands Clauses Consolidation Act 1815...

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TRAVELLER, BONA FIDE.

(See Publican.)

TRESPASS.

Suit by freeholder in possession-Injunction.-Plaintiffs were tenants in fee in possession of a garden, subject to the rights of their lessees to its use. The lessees, with the consent of the plaintiffs, entered into a contract with M., under which he was to carry out considerable alterations in the garden, using material fit for that purpose. M. used improper material, so as to create a nuisance, and improperly removed some of the subsoil of the garden Held, that the plaintiffs were entitled to an injunction against the continuance of the nuisance and the removal of the subsoil, without having recourse to their legal remedies...

TRIAL BY JURY. (See Company: Winding-up.)

TRUST. (See Will.)

TRUSTEE RELIEF ACT.

Unnecessary payment into court-Liability of Trustees -Opinion of counsel-Costs-Nonappointment, evidence of. Although, having regard to the decision in Re Wylly's Trusts (2 L. T. Rep. N. S. 788; s. c. 28 Beav. 458), and to the fact that the trustees acted on the opinion of one of the conveyancing counsel of the court, they were in the present instance excused from paying the costs of an unnecessary payment into court, or of the petition for payment out of court, yet trustees will in general he held personally liable to all such costs where they act with undue caution. A statutory declaration, or even a letter from an appointor's solicitor, is sufficient evidence that a power of appointment has not been exercised so as to authorise trustees to pay over the trust fund to the person absolutely entitled in default of appointment.

TURKISH LAW.

(See Domicile.)

ULTRA VIRES.
(See Insurance, Marine.)

UNDERLEASE.

(See Agreement for Lease.)

UNDUE PREFERENCE. (See Company: Railway.)

UNLAWFUL POSSESSION.

Metropolitan magistrates-Jurisdiction-Having or conveying suspected property-Arrest in a house-2 & 3 Vict. cc. 47 and 71.-The defendant was seen in a metropolitan street to stealthily produce an empty bag from under his jacket, place it under the legs of the coachman of a brougham, and with his assistance take instead a bag full of oats, which he carried off on his shoulder. The coachman immediately drove rapidly off. A police constable was told of what had occurred, and his attention was called to the defendant and his burden. He followed, but came up only after the defendent had entered his own house, when the constable arrested him: Held, that the conviction of the defendaut by a magistrate under the Metropolitan Police Courts Act, 1830, s. 24, for having in

750

853

Expectant heir-Mortgage of reversion.-In 1861 B., & young man of twenty six years of age, being in great pecuniary distress, borrowed 851. of a money lender, on his promissory note for 100l., payable at six months' date, and as a collateral security he gave a mortgage of a bond for 6001., payable on the death of his father, then aged fiftyfour, which bond he had taken from his elder brother on releasing a portion to which, as a younger son, he was entitled under the settlement of the family estate. The mortgage provided that if default should be made in payment of the note when due (which event happened), the 1001. should thenceforth bear interest at 5 per cent. per month. B. died in 1872. The bond became payable in Oct. 1873, by the death of his father, and B.'s executrix thereupon filed ber bill to redeem: Held (affirming the decision of the Master of the Rolls) that B., if not an expectant heir, was a reversioner, and as such entitled to relief against an unconscionable bargain, and that the secпrities must be delivered up upon payment of the amount advanced, with interest at 5 per cent. per annum

353

VENDOR AND PURCHASER. Action for refusing to take conveyance-Right of vendee to insist on presence of vendor at execution.-A vendee of real property has no right to insist on the presence of the vendor at the execution of the conveyance or on the payment of the purchase money to him personally. He is entitled to be satisfied as to the identity of the vendor, and as to the authority to receive it of the person to whom he pays the money; but it is a question in each case for the jury whether the requisition he makes to the vendor on these points as a condition precedent to taking the conveyance or paying the money is reasonable or not 476 Sale of land-Farms-Special terms between tenants and vendor-Whether purchaser bound by.-At the death of a landowner, three yearly tenants of his farms, on receiving from the defendants as and being trustees of his will, notice to quit when their tenancies should expire at Michaelmas 1869, asserted that the testator bad promised them leases, whereupon the defendants entered into an agreement with them, in which, after reciting the alleged promise, it was agreed that on the expiration of the tenancies, the tenants should be allowed half a year's rent, and market value for their hay and straw, whereas by the custom of the country fodder value only was payable. The estate was afterwards sold by the defendants to the plaintiff, under particulars of sale, describing the farms by the full annual rent at which they were held, and giving the names of the tenants, but no mention of the agreement with the tenants was made in such particulars of sale or in the abstract of title, the defendant bona fide believing that it was unnecessary to allude to it; nor did the plaintiff know of the existence thereof until an interview had with the tenants after the sale. At the expiration of the tenancies, the farmers claimed from the plaintiff market value (which much exceeded fodder value) for their hay and straw, and the plaintiff having paid their demand, sued the defendants to recover the difference between the two values. The Court of Common Pleas (Lord Coleridge, C.J., and Brett and Denman, JJ.) gave judgment for the defendants upon a special case on the ground that the plaintiff took the estate subject to the existing rights of the tenants. Held by the Exchequer Chamber (Blackburn and Mellor, JJ., and Bramwell, Cleasby, and Pollock, BB.; diss. Amphlett, B.), reversing the decision of the court below, that judgment ought to be for the plaintiff. Per Blackburn and Mellor, JJ., and Bramwell and Pollock, BB., on the ground that the agreement between the defendants and their tenants were pers nal contracts, not binding the reversion purchased by the plaintiff. Per Bramwell and Pollock, B., on the above ground, and also on the ground that the agreement between the defen lants and their tenants was one which the defendants ought to have disclosed, and not having disclosed impliedly indemnified the plaintiff from the results of it. Per Amphlett, B. The agreements between the defendants and their tenants were terms of and incident to the holdings of the tenants, and bound the reversion in the hands of the plaintiff; but the obligation cast upon the plaintiff by such agreement was not such as a court of equity would grant him compensation in respect of, having regard to the absence of fraud, and the difficulty of estimating the amount payable... 638

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- Preponderance of convenience-Prejudice-Order of master rescinded.-The plaintiff may lay the venue where he pleases, and it is for the defendant who seeks to change it to show a manifest preponderance of convenience in favour of such change. The action was for a