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sale, the vendor sued the purchaser.-Held, that the auctioneer had no authority to take payment by a bill, and that the vendor was therefore entitled to a verdict. Semble, per Blackburn, J., that if the bill had come to maturity before the vendor revoked the authority of the auctioneer, the payment by bill would have been good.— Williams v. Evans, 35 L. J., Q. B. 111.
PRINCIPAL AND AGENT.—Defendant advanced money to a factor on a general account, as against goods to be subsequently delivered to and purchased by defendant.
Goods were delivered, part being those of plaintiff, who had employed the factor to sell them for him on a del credere commission. Defendant knew which were plaintiff's goods, and that the factor sold them only as agent for plaintiff. On a settlement between the factor and defendant the accounts were balanced by the latter paying the factor the difference between the price of the goods and the amount of advance. Held, defendant could not treat any part of advance as a pre-payment of plaintiff's goods, and that such advance was not a good payment as against the plaintiff.-Catterall v. Hindle, 35 L. J., C. B. 161; 1 Law Rep., Q. B., 352.
LANDS CLAUSES CONSOLIDATION ACT.—A railway company is not liable to the costs of an inquiry, under sec. 94, as to whether land intersected by its works is of less value than the expense of making a communication between it,--the statute providing for costs only where the right of the company to take land is not in question.—Cobb v. Mid-Wales Rail. Co., 35 L. J., Q. B. 117; 1 Law R., Q. B., 342.
TURNPIKE (Yeomanry cavalry)-The exemption of volunteers from toll contained in section 45 of the Volunteer Act, 26 & 27 Vict. c. 65, does not extend to members of the yeomanry cavalry, who are not exempt if they drive instead of riding to the place of meeting of their corps.--Humphrey v. Bethel, 35 L. J., Mag. Ca. 150.
COPYRIGHT (Directory.)—In making a map, compiling a directory, or similar work, a previous publication of the same kind may be used for correcting the new work, or as an aid in collecting information, but may not be merely copied and verified.—Per Wood, V.C.-Kelly v. Morris, 35 L. J. Ch. 423, 1 Law Rep. Eq. 697.
Patent.—In a suit to restrain the infringement of a patent, the validity of which has been determined in a previous action at law against different defendants, the Court may rest upon the decision at law as establishing the sufficiency of the specification, but will give defendant the option of having an issue directed as to the novelty of the invention.—Per Lord Romilly, M.R., Bovill v. Goodier, 35 L. J. Ch. 432, 2 Law Rep. Eq. 195.
SETTLEMENT (Vesting, Power of Appointment.)— The rule, that none can take by implication upon the non-execution of a power of appointment who cannot take under an execution of the power, only applies where there are no means of ascertaining the persons intended to take other than the terms of the power. Therefore, where real estate was settled upon trust for the settlor for life, with remainder to his wife for life, and after the death of the survivor, upon trust for sale and division 66
amongst all and every the children of the settlor, lawfully begotten or to be begotten, in such shares or proportions, manner, and form, as should be directed by any will or codicil then already, or at any time thereafter to be, duly executed” by the settlor, with no gift over in default of appointment, and the settlor died without exercising the power,--Held, that the above rule did not apply; that all the children took vested estates, liable only to be divested by the execution of the power; and, therefore, that a child who died before the settlor took, in default of appointment, equally with those who survived.-Observations (per Kindersley, V.C.,) on Woodcock v. Renneck, 1 Phill. 27; and Winn v. Fenwick, 11 Beav. 1138.—Lambert v. Thwaites, 35 L. J. Ch. 406. 2 Law Rep., Eq. 151.
SOLICITOR (Certificate.)—A solicitor who has been duly admitted and enrolled, but who has neglected to take out his annual certificate in proper time, is never
theless competent, while without a certificate, to bind a client ignorant of the want of the certificate as between such client and third parties.-Sparling v. Brereton, 35 L. J. Ch. 461. 2 Law Rep., Eq. 64.
WILL (Construction.)—Testator, by reference, gave the income of a certain fund to L. M., who was unmarried, for life, with a gift to her husband (if any) for his life; and upon the decease of the longer liver of L. M. and her husband, he directed his
trustees to pay, assign, and transfer the capital to his four children, A, B, C, and D, who should be then living, or to the issue of such of them as should be then dead, such issue taking their parent's share. “Issue," as used in the will, was clearly equivalent to " children":—Held, that upon the death of any one of the four, A, B, C, and D, whether before or after the determination of the life estates, his children then living took vested interests in the fund, and that his children then dead were wholly excluded.-In re Merricks' Trusts, 35 L. J. Ch. 418. 1 Law Rep., Eq. 551.
PROMISSORY NOTE (Payee, Uncertainty.)- Defendant gave to the trustees of a chapel a document as follows :—“On demand, I promise to pay to the trustees of, &c., or their treasurer for the time being, the sum of," &c. :-Held, in an action by the trustees, that there was no uncertainty as to the persons to whom the money was to be paid, so as to make the document bad as a promissory note.Holmes v. Jaques, 35 L. J. Ch. 130.
CARRIERS BY RAILWAY (Railways Clauses Consolidation Act, 1845, ss. 87. 92.) -In the absence of a contract to deliver at a particular time, the duty of a common carrier is to deliver goods intrusted to him at a reasonable time, looking at all the circumstances of the case; and since his first duty is to carry safely, he is justified in incurring delay and delivering after the usual time when delay is necessary to secure the safe carriage. By virtue of an agreement under the provisions of the Railways Clauses Act, 1815, confirmed by private act, the M. Railway Company exercised running powers over the line of the G. N. Railway Company. Goods intrusted to the G. N. Company were, solely by the negligence of the M. Company, in the exercise of those powers, delayed in transit and delivered so late as to cause loss to the consignor, -Held, that since the powers of the M. Company were conferred on them by statute for the benefit of the public, the G. N. Company were not responsible for the negligence of the M. Company in the exercise of those powers, and that the G. N. Company having used all reasonable efforts to forward the goods, and having delivered them at a reasonable time, were not answerable to the consignor for the loss occasioned by the delay.Great Northern Rail. Co., v. Taylor, 35 L. J., C. P. 210. 1 Law Rep., C. B. 385.
Bill OF EXCHANGE (Railway Company)- A Railway Company, incorporated by a special Act of Parliament, containing the usual clauses, incorporating the general acts, cannot accept bills of exchange.—Bateman v. The Mid-Wales Rail
35 L. J. C. P., 204.
ent, the master refused to deliver the cargo to plaintiff unless ght was paid or guaranteed, although M's acceptance was not then guarantee was given by B. for plaintiff under protest, the cargo was
ed, and B. being afterwards compelled to pay the amount of guarantee on se dishonour of M's acceptance, plaintiff repaid him, -Held, affirming judgment of Court of Common Pleas, 34 L. J. C. P. 268.) that plaintiff was entitled to re
cover the half freight from defendant, as during the currency of M.'s acceptance defendant had no lien for it, and the refusal to deliver the cargo was therefore wrongful.—Tamvaco v. Simpson, (Ex. Ch.,) 35 L. J., C. P. 196. 2 Law Rep., C. B., 363.
COPYRIGHT OF DESIGNS—By the Copyright of Designs Act, 1858, section 5, the registration of any pattern or portion of article of manufacture to which a design is applied, instead or in lieu of a copy, drawing, &c., shall be as valid and effectual as if such copy, drawing, &c. had been furnished to the Registrar under the "Copyright of Designs Act,"—Held, (aff. judgm. of Court of Q. B. 33 L. J., Q. B., 329.) that a design formed by the combination of shaded and bordered stars on an ornamented chain surface might be registered under this section, by simply depositing with the Registrar a piece of woven cloth to which this combination had been applied ; as the design, which must be taken to be the combination of ornaments on the cloth, was sufficiently disclosed. It is a question for the Court whether a design is sufficiently disclosed by a pattern or piece of cloth.—M Crea v. Holdsworth (Ex. Ch.) 35 L. J., Q. B. 123. 1 Law Rep., Q. B. 264.
NEGLIGENCE (Consequential damage.)—Plaintiff's colliery was flooded by water, which escaped from defendants' reservoir through some old mine-shaft workings under the site of the reservoir, and through old coal workings under the land intervening between plaintiff's and defendant's land. There was no personal negligence on the part of defendants; but the people who were employed by them in the construction of the reservoir had not exercised reasonable skill and care (with reference to the shafts) to provide for the pressure which the reservoir was to bear -Held, reversing the judgment of the Court of Exchequer, 34 L. J., Ex. 177, that defendants were liable for the damage sustained by plaintiff. Per Curiam :—“We think the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and that if he does not he is primâ facie answerable for all the damage which is the natural consequence of its escape.
The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.—Fletcher v. Rylands, (Ex. Ch.), 35 L. J., Ex. 154., 1 Law Rep., Ex. 265.
SUCCESSION DUTY (“ succession": "predecessor.")—H, by will dated in 1851, left certain real estate to his wife C, for life, giving her a general power of appointment. He died in 1856. C. exercised her power of appointment in 1858, in favour of E, the wife of the testator's nephew :-Held (dub. Martin, B.), that E.'s interest in the annuity was a “succession ” within the meaning of the Succession Duty Act, 1853, and that she took from C. as “ predecessor," and was therefore liable to pay a duty of £10 per cent.—The Attorney General v. Upton, 35 L. J., Ex. 130, 1 Law Rep., Ex. 224.
JURY (discharge of Jury without verdict no bar to subsequent trial: almissibility of evidence : Sunday.)-A jury sworn and charged with a prisoner may be discharged without giving a verdict by the presiding Judge, if a “necessity," that is, a high degree of need, for such discharge is made evident to the mind of the Judge. He alone is to decide when the “ necessity” for such discharge is made evident to his mind, and his decision is not subject to review by any legal tribunal. The statement upon the record by the Judge of the result of such a decision is sufficient to establish the lawfulness of the discharge. Such a discharge, even if it be an improper exercise of discretion, is not a legal bar to a subsequent trial of
the prisoner for the same offence, either on the same or upon a fresh indictment. If two prisoners be jointly indicted, and one alone be given in charge to the jury, the other is an admissible witness (though neither acquitted nor convicted, and though a nolle prosequi is not entered) upon the trial of the prisoner with whom the jury are charged. A record showed that on the trial of W. and H., jointly indicted for murder, the jury, after five hours' deliberation, at five minutes before midnight on Saturday night, were discharged by the Judge without giving a verdict, and without the consent of the prisoner or of the prosecution, on the ground that he, the Judge, for certain reasons, which he stated, “ decided that it was necessary to discharge the jury." W. was afterwards given in charge to another jury, and tried alone upon the same indictment, when a verdict of guilty was returned, and judgment of death recorded ; H. being admitted as a witness against her without having been either acquitted or convicted on the indictment, and a nolle prosequi not having been entered, - Held, affirming the judgment of the Court below (35 L. J., Mag. Ca. 121, 1 Law Rep., Q. B. 264) on a writ of error, that there was no error on the record. Held, also, that the question of the admissibility of H. did not arise upon the record; but that if it had arisen, and if the question of her admissibility could have been inquired into, she was admissible. Semble, per Pollock, C.B. and Martin, B., that a Judge has the power, in his discretion, to give refreshments to a jury either before or after they have retired to consider their verdict.-Winsor v. The Queen, Ex. Ch., 35 L. J., Mag. Ca. 161.
EVIDENCE (competency: deaf and dumb witness.)—It is the duty of the Judge presiding at a trial to decide as to the competency of a witness; and if he has admitted a witness to give evidence, but upon proof of subsequent facts affecting the capacity of the witness and of observation of his subsequent demeanour, the Judge changes his opinion as to his competency, the Judge may stop the examination of the witness, strike his evidence out of the notes, and direct the jury to consider the case exclusively with reference to the evidence of the other witnesses. -35 L. J., Mag. Ca. 186., 1 Law Rep., C. L. 33.
LANDS CLAUSES CONSOLIDATION ACT.—Where a public company takes land held in undivided shares, each part owner, bona fide employing a separate solicitor, is entitled to his costs of obtaining his share of the purchase-money ; but two or more of such part owners employing the same solicitor are, in the absence of special circumstances, not entitled to more than one set of costs.-In re Nicholl's Trust Estates, 35 L. J. Ch. 516.
STATUTE (Municipal Corporation: Compulsory Powers).-A public body intrusted by the legislature to construct a public work for the public advantage and with no profit to themselves, was authorised to take compulsorily more land than was required for the improvements specified in their Act, with power to dispose of superfluous lands :—Held, that they were entitled to take the whole of the lands scheduled in their Act, even though with the avowed object of re-selling a portion of such lands to a railway company; one of the implied purposes of their Act being to obtain money for the improvements. Held, also, that they were not incapacitated from taking the whole of the lands comprised in the schedule, although before they obtained their power to take land they had contracted conditionally upon their obtaining such power to sell the lands for a certain sum. In such a case the intention of the Legislature may be gathered from the clauses of the Act generally. The word street means a thoroughfare with houses on both sides, not merely a road or footway.-Galloway v. the Mayor, gc., of London and the Metropolitan Rail. Co., and the Mayor of London v. Galloway, House of Lords, 35 L. J., Ch. 477. 1 Law Rep., H. L. 34.
Bills of ExCHANGE (Forgery-Acceptance for Honour).-P. presented to S. in England a Spanish bill of exchange bearing to be drawn by C. of Lima, on S., payable to order of R., and endorsed by R. and P. S., having stopped payment, sent to the plaintiffs the bills and a letter telling them that no doubt defendant would intervene for the honour of C. Plaintiffs sent the bill and letter to de
fendant, who accepted for honour of C., and on the faith thereof plaintiffs discounted the bill. The signature of C. turned out to be a forgery. Held, that as the bill was discounted by plaintiffs on the faith of defendant's acceptance, they were entitled to recover against him. And if it had been necessary to decide the point, the Court were inclined to hold that the bill ust be considered to have been accepted as a bill payable to bearer –Phillips and Another v. Im Thurn, 35 L. J., C. P. 220. i L. J., C. P. 463.
Wager (8 and 9 Vict. c. 109, s. 18).-An agreement between two persons, each of whom possesses a horse, to ride a race, the winner to have both horses, is void, being an agreement by way of wagering, within the meaning of 8 & 9 Vict. c. 109, s. 18, and not an agreement to contribute towards a prize to be awarded to the winner of a lawful game, within the meaning of the proviso in that section. - Coombs v. Dibble, 35 L. J., Ex. 167. 1L. R., Ex. 248.
RAILWAY.—LANDS CLAUSES CONSOLIDATION ACT (Surplus Land).—By section 217 of 7 & 8 Vict. c. xcii. (a section in almost the same words as the Lands Clauses Act, section 127), it is provided that if the company do not sell within ten years the superfluous lands not required for the purposes of their Act, such lands remaining unsold at the expiration of such period shall vest in and become the property of the owners of the lands adjoining thereto in proportion to the extent of their lands respectively adjoining the same. was amalgamated with others ; and the new company, after the ten years had expired, obtained an Extension Act, providing that “the respective periods by the several acts relating to the company limited for the sale of their superfluous lands should be extended for five years from the passing of the Act, and those several Acts should be read and construed as if that period had been fixed by each of those Acts for that purpose : "—Held, first, that the obligation to resell the surplus land applied to reversions or other partial interests in land acquired by the company; secondly, that the words of the section, extending the time for re-sale, could not defeat the vested rights which had arisen from the lapse of the time allowed for the re-sale. The Court of Q. B. having decided (v. ante vol. ix. p. 167) that the surplus land forfeited by the company must be apportioned among the adjoining owners according to a line drawn from the point where their boundaries met to the nearest point of the land actually used by the company: Held, by the Ex. Ch. that this was wrong, and that the land ought to be divided among the owners of the adjoining properties in proportion to the froutage of each, that is, the length of the line of contact of each property, if the line were made straight from the point of intersection of the boundaries on one side, to the point of intersection of the boundaries on the other.-Moodie v. Corbett, Ex. Ch. 35 L. J. Q. B. 161. 1 L. R. Q. B. 510.
MARINE INSURANCE.- Where a ship with cargo on board is sunk in deep water, so that the ship and cargo are in common danger of destruction, and there is nothing to rebut the inference that the most convenient mode of saving either, or both, is by raising the ship together with the cargo, the shipowner, in considering whether there is a constructive total loss of the ship, on the ground that the cost of raising it will exceed its value when saved, is bound to take into account the fact that the outlay will be diminished by his claim for general average on the cargo and freight, which will be secured to him by a lien on the cargo, if recovered.—Kemp v. Halliday, Ex. Ch. 35 L. J., Q. B. 156. 1 L. R. Q. B. 520.
NEGLIGENCE.- Defendant having placed a machine in a public market for exhibition, a child was injured by putting his fingers between the cogwheels while another child was turning the handle :--Held, defendant was not liable for negligence in leaving the machine unguarded where it was.—Mangan v. Atterton, 35 L. J., Ex. 161. 1 L. R., Ex. 239.
ATTAINDER—PEDIGREE.—The descendants of one child of an attainted person may trace a beritable descent to the descendants of another child of such attainted person, even though the marriage, of which such children were the issue, took place abroad after the attainder.—Kynnaird v. Leslie, 35 L. J., C. P. 226. ' 1 L. R. C. P. 389.