CONTRACT OF SALE (continued)—of chattel on con- dition: breach of warranty: rescission of con- tract] The purchaser of a mare at an auction was induced to buy her by the description that she had been hunted with certain hounds. The conditions of sale provided that horses not answering the de- cription must be returned before a specified time, otherwise the purchaser must keep them with all faults. The purchaser paid the price, and was casually told that the description was untrue. Nevertheless, he removed the mare to his own stables, and while being so removed, she ran away and injured herself severely, without any negligence on the plaintiff's part. The descrip- tion was, in fact, untrue, and on that ground the purchaser returned her to the seller within the specified time:-Held, that since the pur- chaser had in removing her done no more than he was entitled to do under the contract, and since the injuries were not owing to any negli- gence on his part, he had not lost his right to rescind the contract, and could recover the price from the seller in an action for money had and received. Head v. Tattersall, Ex., 4
rescission of fraud discovered after action brought: election to rescind equitable plea: stoppage in transitu]-A. having ordered goods from the L. P. Company in London, paid them 687. in cash, and gave a bill for 135l., the balance of the price, directing the goods to be sent by the defendants' railway to C., his agent at Liverpool. The railway company reported to the L. P. Company that C. was not to be found at the address given, and asked for further di- rections; but before any reply was received, C. claimed the goods at the station in Liverpool, and the defendants thenceforward held them as warehousemen for him. In the meantime, the L. P. Company having discovered that A. was a bankrupt, directed the defendants to return the goods to London; but this direction did not reach the Liverpool station till after the tran- situs was at an end. The defendants being in- demnified by the L. P. Company, afterwards refused to deliver the goods to C., whereupon he brought an action against them. trial, the jury found-First, that A. obtained the goods with the intention of not paying for them; second, that the plaintiff had advanced 2507. (including the 687.) to A., but not bona fide; and third, that he knew of A.'s fraudulent inten- tion. A verdict was thereupon entered for defendants, leave being reserved to move to enter a verdict for the plaintiff, if the Court should think defendants not entitled to the verdict, either upon the pleas as they then stood, 66 or upon any possible amendment of them":- Held (reversing the judgment below), that, upon the facts proved, a plea stating, -"that the goods had been sold to A., and delivered by L. P. Company to defendants, to be delivered to the plaintiff under a con- tract induced by A.'s fraud, to which the plaintiff was privy; that the L. P. Company, supposing the transitus to be still subsisting,
had obtained from defendants the re-delivery of the goods, but that afterwards, and after action brought, the L. P. Company having dis- covered the fraud and the plaintiff's knowledge of it, elected to rescind this contract with the plaintiff, and that they were ready to restore the 681. and the bill; that this took place before any act was done by them affirming the con- tract or otherwise determining their election; that no interest had vested in any innocent third person, rendering it inequitable or unjust to re- scind the contract; and that the plaintiff was inequitably proceeding with the suit for the purpose of obtaining damages from the defen- dants and the P. Company,"-would have been proved, and would have furnished a complete answer to the action on equitable if not on legal grounds. Clough v. The London and North Western Rail. Co. (Ex. Ch.), Ex., 17
condition precedent: arrival and delivery at port: risks of navigation to be borne by pur- chaser]-By an agreement in which C. was described as vendor, and P. as purchaser, C. agreed to ship a cargo of ice, and on the same being shipped, to forward to P. bills of lading, on receipt of which P. was to "take upon himself all risks and dangers of the sea, &c.," P. agreeing also "to buy and receive the ice on its arrival" taking the ice from along- side the ship, and paying for it in cash on delivery at the rate of 20s. per ton, weighed on board during delivery:-Held (reversing the judgment of the Court of Exchequer, 39 Law J. Rep. (N.s.) Exch. 150), that upon the true construction of the agreement, the effect of the clause as to risks and dangers of the seas was not merely to save C. from liability for non- delivery, but to bind P. to insure the cargo on receiving the bill of lading; and that the ship and cargo having been lost on the voyage through perils of the seas, P. was liable to pay C. the price or the value of the cargo. Castle v. Playford (Ex. Ch.), Ex., 44
COPYHOLD —admittance of remainderman: right to compel admittance of termor for years]-De- fendant's uncle, who was tenant in fee of lands in the manor of R., according to the custom of the manor, devised his estate for a term of 500 years, upon certain trusts and subject to the term, to defendant in fee. Upon the uncle's death the lord of the manor admitted defendant, who was an infant, and received a full fine in respect of the admittance. The lord, however, insisted that the trustees should also be ad- mitted and pay a fine in respect of the term of 500 years, and upon their refusal, after pro- clamation, to come in and be admitted, he seized quousque and brought ejectment to try his right to the additional fine:-Held, that the lord having admitted the remainderman as tenant on the roll, and received a full fine, could not compel the trustees to be admitted, though possibly he might be compelled to grant them admission if they asked for it. Everingham v. Ivatt, Q.B., 263
enfranchisement: valuation of facilities for improvement]-Where the lord of a manor requires the enfranchisement of copyhold lands under the 15 & 16 Vict. c. 51, and the consideration to be paid to the lord for the en- franchisement is to be ascertained by valua- tion under the Act, it is enacted, by section 16, that "in making any valuation under this Act the valuers shall take into account the facilities
for improvement. . and all other circum- stances affecting or relating to the land which shall be included in such enfranchisement, and all advantages to arise therefrom, and shall make due allowance for the same." Part of certain land required to be enfranchised by the lord of the manor was the subject of an unex- pired lease granted with the license of the lord for a term of twenty-one years, and with another part of the same land was included in a testa- mentary settlement, and was subject to the trusts thereof. The settlement contained a power of leasing in the trustees. The land was building land, valuable as such by reason of its situation and aptitude for building, except that a portion of the land had no communication with a highway but through the said other lands or through lands belonging to third parties:-Held, that in assessing the compensa- tion or consideration payable to the lord on the enfranchisement, such lease and settlement were to be taken into consideration by the valuers as obstacles in the way of the facilities for improvement, and in reduction of any com- pensation payable to the lord in respect of such facilities. Arden v. Wilson, C.P., 273
-enfranchisement: special custom: deferred payment: hardship]-Where a lord of a manor, who takes proceedings under the Copyhold Acts to compel a tenant to enfranchise, sets up a special custom entitling him to one-third of the timber, if there be evidence, it is the exclusive province of the Copyhold Commissioners to de- termine whether the custom is proved, and the Court will not interfere with their decision; the valuers acting under the second part of s. 8 of 21 & 22 Vict. c. 94, are not bound to state in their award what proportion of the rent-charge should be deferred, or such particulars as might enable the Commissioners to defer payment of the whole rent-charge or any part thereof; and though the pecuniary circumstances of the tenant ought not to be taken into account in de- termining whether there is special hardship under 15 & 16 Vict. c. 51. s. 35, and the Com- missioners inquire into them, and though the Court think, looking to the particular interest, &c., of the tenant, that there is hardship, yet the Court are not at liberty to interfere with the decision of the Commissioners that there is no such hardship. Reynolds v. The Lord of the Manor of Woodham Walter, C.P., 281
CORPORATION-Liability for not keeping towing path in repair. See Negligence-Winch v. Conservators of River Thames,
allowed by court after refusal of judge at nisi prius to certify]-In an action of trespass quare clausum fregit where defendant pleaded several pleas foreign to the real question in issue, plaintiff obtained a verdict for forty shillings; and the judge refused to certify that there was sufficient reason for bringing the action in a superior Court. The Court after- wards, being of opinion that there was sufficient reason for bringing the action in the superior Court, and that if it had been commenced in the County Court it might undoubtedly have been removed to the superior Court, allowed plaintiff his costs by rule, notwithstanding that the judge who tried the cause had, on the same materials, refused to certify.-Hatch v. Lewis distinguished. Hinde v. Sheppard, Ex., 25
COUNTY COURT-misjoinder of defendants: amend- ment] When a cause after issue joined is ordered to be tried in a County Court, under 19 & 20 Vict. c. 108. s. 26, the judge of the County Court has at the trial the same power of amending a misjoinder of defendants as a judge of a superior Court sitting at Nisi Prius has under s. 37 of the Common Law Procedure Act, 1852. Renninson v. Walker, Ex., 43
effect of warrant of possession: trespass]- A warrant of possession obtained under 19 & 20 Vict. c. 108. s. 50 by a landlord pro- ceeding in the County Court against his tenant, but not against the person actually in possession, is not conclusive against the latter, who may notwithstanding the warrant bring an action of trespass against the landlord, if the landlord had not in fact a right to the pos- session of the premises. So held by CHANNELL, B., and PIGOTT, B.; Contra by MARTIN, B. Hudson v. Walker, Ex., 51
Jurisdiction in Admiralty cases. See Pro-
COVENANT in restraint of trade: mode of mea- suring distance]-In construing a covenant by an assignor of a lease not to carry on the busi- ness of a public-house keeper within the distance of half a mile of the assigned premises, the distance is to be measured in a straight line, and not according to the nearest practicable route. So held by MARTIN, B., and CHANNELL, B., contra by CLEASBY, B. Moufflet v. Cole, Ex., 28
lease for lives: lapse of one life: war ranty of title]-Defendant assigned by deed a lease for the lives of W., J., and H., to hold for the lives of W., J., and H., and the survivors and survivor of them, and covenanted that the lease "was a good, valid, and subsisting lease in the law for the lives of W., J., and H., and the survivors and survivor of them, and was not forfeited, surrendered, or become void or void- able." It was proved that J. had died before
DAMAGE―remoteness: proximate cause: frozen water on a highway: liability for a wrongful act] Defendant washed a van of his on the part of the street opposite his coach-house, and the water so used ran along the gutter by the side of the street for about seventy feet down to the corner of another street, where, meeting an obstruction, it accumulated and expanded over part of the roadway, instead of going as usual into the sewer, and there being a sharp frost at the time it shortly became frozen over. cleaning a van in the street was an offence under the Metropolitan Police Act, 2 & 3 Vict. c. 47. s. 54. subs. 1, but defendant was not shewn to have known of the obstruction at the corner, and if he had cleaned the van in the coach-house the water would also have gone into the same gutter in the street :-Held, that defendant was not liable to plaintiff for damage caused to his horse by slipping whilst passing over the frozen water at the corner, as such damage was too remote, and was not the im- mediate and proximate cause of defendant's act. Sharp v. Powell, C.P., 95
remoteness: proximate cause: contribu- tory negligence of third party] - Defendants having contracted to supply plaintiff with a service pipe, from their main to the meter on his premises, laid down a defective pipe from which the gas escaped. A workman, in the employ of a gas fitter, engaged by plaintiff to lay down pipes upon his premises, negligently took a lighted candle for the purpose of finding out whence the escape proceeded. An explosion then took place, whereby damage was occasioned to the plaintiff's premises, and the plaintiff thereupon brought an action to recover compensation from defendants:-Held, affirm- ing the judgment of the Court below, 39 Law J. Rep. (N.s.) Exch. 33, that he was entitled to recover. Burrows v. The March Gas and Coke Co. (Ex. Ch.), Ex., 46
Lords Bailiffs of Romney Marsh v. Corporation of Trinity House.
DEBTOR AND CREDITOR-composition deed: detinue against surety: right of creditor to composition after disputing validity of deed: power of court of error to draw inferences]-Detinue does not lie against the maker of a promissory note after he has delivered it to a properly constituted stakeholder, though he may have forbidden the stakeholder to hand it over to the person claim- ing it, and in whose favour it was drawn. Lat- ter v. White (H.L.), Q.B., 342
The trustee of a composition deed holding the bills or notes of the debtor or of his surety for the benefit of creditors is such a stakeholder. Ibid. Semble, by LORD CAIRNS, a creditor who has, as between himself and the debtor, successfully contested in a Court of law the validity of a creditors' or composition deed executed by his debtor, is not thereby precluded from afterwards coming in under the deed, and obtaining the benefits he would only be entitled to on the foot- ing that the deed was valid. Ibid.
A Court of Error has no larger power to draw inferences than had the Court of original juris- diction. Where, in a special case, power for the Court to draw inferences from the facts stated is not reserved, neither the Court of first instance nor the Court of Error can draw such infer- ences. Ibid.
composition]-Where by an extraordinary resolution under section 126 of the Bankruptcy Act, 1869, creditors resolve to accept a com- position in satisfaction of their debts, but the debtor fails to pay the said composition, the creditors are entitled to bring actions for their original debts. Edwards v. Coombe, C.P., 202
Trust deed containing release subject to a proviso. See Principal and Surety-Bateson v. Gosling
DEFAMATION. See Libel. Slander.
DETINUE-goods at sufferance wharf: bailee of goods]-Goods ordered by L. from plaintiff abroad were shipped and consigned to L., the bill of lading and invoice being forwarded in due course. The vessel with the goods on board arrived on the 12th of February at a sufferance wharf kept by defendant in London. Before she arrived L. had deposited the bill of lading at the wharf, with directions to take delivery, and warehouse the goods on his ac- count. This was done, the goods being entered in the name of L. subject to the freight. the 19th of February L. gave notice to plaintiff that the goods were not according to contract, and that he refused to take them. It was agreed on the 19th of April that plaintiff should take them back, and L. promised to send the de- livery order, but instead of doing so, he in- dorsed the bill of lading to M. who took it to defendant, and obtained a transfer of the
goods to his own name. On the 3rd of June M. paid the freight; obtained warrants for delivery to him or his order, and a transfer was made from his name to 66 warrants." Plaintiff ten- dered both to M. and also to defendant the amount of all "charges" due for the goods. The transaction between M. and L. was colourable, and with knowledge on the part of M. of the intention of L. to deprive plaintiff of the goods. Defendant refused to deliver the goods to plaintiff, and delivered them to another person by order of M.:-Held, in an action to recover the goods, that defendant held them in no other relation than of ordinary bailee, and was liable to plaintiff. Batut v. Hartley, Q.B., 273
against maker of promissory note delivered to a stakeholder. See Debtor and Creditor- Latter v. White.
DISTRESS-Action for excessive seizure. See Land- lord and Tenant-Fell v. Whitaker. EASEMENT implied grant of right of way]—In a lease the demised premises were described as "all that plot of land bounded on the east and north by newly made streets, a plan whereof is indorsed on these presents," and the lessee cove- nanted to kerb the causeways adjoining the said lands. The site of the new streets was marked as such in the plan indorsed:-Held, that this amounted to a grant of a right away along the proposed new streets to the land demised. Espley v. Wilkes, Ex., 241
EJECTMENT-Costs of former trial. See Staying Proceedings. And see Interrogatories. Land- lord and Tenant.
EQUITABLE DEFENCE-promissory note: principal
and surety: set-off]-It is a good equitable defence to an action against the maker of a promissory note, that the note was made by the defendant and R. jointly and severally, that the defendant, as the plaintiff knew, was only surety for R., that afterwards, without the defendant's consent, the plaintiff became in- debted to R., in an amount equal to that of the note and all moneys due from R., in the follow- ing way, namely, that the plaintiff and R. were partners, and the plaintiff sold to R. his interest in the partnership debts, and the note was to secure part of the price, but the plaintiff re- ceived a large part of the debts though he knew that the defendant made the note in con- sideration that R. should receive them. Be- chervaise v. Lewis, C.P., 161
See Principal and Surety.
ERROR-Power of Court to draw inferences. See Debtor and Creditor-Latter v. White.
EVIDENCE-Presumption from long payment. See Lunatic Prisoner, and see Bankruptcy. Revell v. Blake. And see Marine Insurance. Princi- pal and Agent.
EXECUTION. See Bankruptcy-Revell v. Blake.
EXECUTOR contract of testator: liability of exe- cutor of executor de son tort]-An executor of an executor de son tort is not liable for breach of contract committed by the original testator, although the executor de son tort has actually possessed himself of the particular property or effects of the testator in respect of which the contract was entered into. Wilson v. Hodgson, Ex., 49
Liability of, as Partner. See Partners. FIXTURES-Right of mortgagee as against trustee in bankruptcy. See Bankruptcy-Holland v. Hodgson.
FORFEITURE - waiver of. See Landlord and Tenant-Tolman v. Portbury.
FRAUDS, STATUTE OF--sale of goods for more than 101.: memorandum or note in writing]-On the 11th of January plaintiff verbally agreed with defendant to buy his wool for a price exceeding 10., and wrote the terms in a letter, which de- fendant took away. One of those terms was, "the whole to be cleared in about twenty-one days." In a letter sent to plaintiff on the 8th of February, and signed by defendant, he said, "It is now twenty-eight days since you and I had a deal for my wool which was for you to have taken all away in twenty-one days from the time you bought it. I do not consider it business to put it off like this, therefore I shall consider the deal off, as you have not completed your part of the contract.
On the 9th of February plaintiff verbally asked defendant for a copy of the contract which he had given him on the 11th of January, and later on the same day defendant wrote and signed a letter to plaintiff: "I beg to enclose a copy of your letter of the 11th of January, 1871." On the same paper and underneath there was, in defendant's writing, a copy of the letter of the 11th of January. Plaintiff having sued defendant for not de- livering the wool,- Held, affirming the deci- sion below-Ex., 1), that rightly interpreted defendant's two letters admitted the con- tract, but alleged that defendant's construction of the contract was the correct one; and that taking the three letters together there was a sufficient memorandum in writing to charge defendant within section 17 of the Statute of Frands. Buxton v. Rust (Ex. Ch.), Ex., 173
FRAUDS, STATUTE OF (continued)-See Work and Labour.
FREIGHT. See Marine Insurance.
FRIENDLY SOCIETY-liability of treasurer to sum- mary remedy for withholding money. Barrett v. Markham, C.P., 201; M.C., 118
GAME-Prevention of Poaching Act: using any article or thing for unlawfully killing or taking game. Jenkin v. King, Q.B., 226; M.C., 145
GUARANTIE-consideration: withdrawal of peti- tion in Chancery: double promise]—A guarantie was given to plaintiff by defendants in the following terms: "In consideration of your withdrawing the petition you have presented for winding up the A. Company (Lim.) we agree to pay all the costs you have incurred in reference to the petition. We further agree to guarantee the payment to you within eighteen months, by the company or the liquidator thereof, of the principal of your debt of 7221." To a declaration on this guarantie, alleging as a breach the non-payment of the 7227., de- fendants pleaded that after the alleged with- drawal of the said petition, and before a rea- sonable time had elapsed, and within the said eighteen months, plaintiff presented another petition for winding up the company, which prevented the collection of the assets of the company. At the trial, the jury found that the presentation of the second petition did not prevent the collection of assets :-Held, that the withdrawal of the first petition was a sufficient consideration for both promises of the guaran- tors; that the plea, as proved, afforded no defence; and that on the finding of the jury plaintiff was entitled to recover. Harris v. Venables, Ex., 180
See Principal and Surety-Phillips v. Foxall.
GUNPOWDER ACT-keeping cartridges without license. Dealer but not manufacturer. Webley v. Woolley, Q.B., 88; M.C., 38
duty to erect lightning conductors. Penal- ties. Eliott v. Majendie, Q.B., 226; M.C., 147
HABEAS CORPUS-child under fourteen years of age: guardianship for nurture]-The mother of a child, between ten and eleven years of age, although a Roman Catholic, had consented to the child being placed in a Protestant school for destitute children. Being ill, from consump- tion, in a workhouse infirmary, she became, as she alleged, anxious that the child should be removed, and placed in a home for poor children, so that she might be brought up in the mother's own faith, and in that in which the child had been baptized. She had, before being
in the infirmary, lived in lodging-houses, had neglected the child, and had lived a drunken and immoral life. The father of the child was dead, and the child herself desired to remain in the school:-Held, that under these cir- cumstances the Court would not grant a Habeas Corpus to remove the child. In re Turner, ex parte Turner, Q.B., 142
HACKNEY CARRIAGE-Plying for hire. What a public place. Skinner v. Usher, Q.B., 220; M.C., 158
Plying for hire. Construction of Town Police Clauses Act, 1847. Curtis v. Embrey, Ex., 241; M.C., Vol. 42, 1873
See Negligence-Fowler v. Lock. HIGHWAY-Encroachment upon the carriage-way or cart-way, or upon that part at the side which has been dedicated to the public. Easton v. The Highway Board of the Richmond Highway District, Q.B., 41; M.C., 25
Right to carriage way across foot pavement. The Vestry of St. Mary, Newington, v. Jacobs, Q.B., 89; M.C., 72
Stopping up or diverting. Time for giving notice of appeal to Quarter Sessions. Regina v. Maule, Q.B., 120; M.C., 47
Obstruction of. Custom. Statute sessions. Claim of right. Jurisdiction of justices. Simp- son v. Wells, Q.B., 186; M.C., 105
in navigable lake. See Trespass.
HUSBAND AND WIFE-money borrowed and received for improvement of wife's separate estate: parties to action]-A married woman, entitled to pro- perty for her separate use, was desirous of raising money for the improvement of her estate, while her husband also wished to raise money to discharge a debt. They accordingly arranged through defendant, their solicitor, to borrow money upon mortgage of the separate estate, and upon policies on the lives of each of them respectively. The money was to be advanced by instalments, and when the first instalment was due, the husband and wife signed a joint au- thority for defendant to receive it for them. Defendant received the money, and claimed to retain part of it in respect of a separate debt due to him as solicitor of the husband:-Held, in an action by husband and wife, that de- fendant could not retain the money, or set it off as a debt due from the husband, as it was received by him upon the express understanding that it was to be held for the husband and wife jointly, so that there never was any re- duction into possession on the part of the husband. Jones v. Cuthbertson, Q.B., 145
« EelmineJätka » |