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MASTER AND SERVANT.—Under 4 Geo. IV. c. 34, s. 3, a workman may be con-' victed a second time for persisting on his return from imprisonment in absenting himself from the service of his employer, as the contract is not rescinded by the mere imprisonment. And although the offender bona fide believes that a conviction dissolves his contract, and opinions of judges can be cited in support of such a belief, this is no lawful excuse, but only matter for the discretion of the magistrates in imposing punishment.-Unwin v. Clarke, 35 L. J., Mag. Ca. 193. i L. R. Q. B. 417.
COMPANIES' Act, 1862.-In sec. 133 “ contributories" includes fully paid-up shareholders, so that liquidators may make a call on shares not fully paid up in order to reimburse fully paid-up shareholders. ---In re Anglesea Colliery Co. (Lim.), 35 L. J., Ch. 546.
1 L. R. Eq. 379. PARTNERSHIP (Dissolution).—Partnership articles provided that the business should be carried on “ for the common benefit of the partners, and risk of profit and loss in equal shares and proportion;" that plaintiff should devote the whole of his time to the business, and defendant only so much as he should think fit; that fresh capital might be brought in, which should carry preferential interest
, and might be withdrawn on notice; and that the nett profits beyond equal specified sums should be left in the business, and be carried to the respective credit of the partners as additional capital, to bear interest before division of nett profits. Defendant had brought in cash as fresh capital, and profits had been carried to the capital account in the books. On dissolution, the realized assets, after paying debts, proved insufficient to make good to defendant the excess of his capital ; and defendant claimed to take the whole of the realized assets, and, in addition, to hold plaintiff liable personally to him for any deficiency :-Held, that defendant was entitled to payment in priority of the cash brought in, but that the surplus should be divided rateably according to the shares of capital after such payment. - Wood v. Scoles, 35 L. J., Ch. 547. 1 L. R. Ch. Ap. 369.
WINDING UP (Companies' Act, 1862: " Registered" and " Unregistered").The words registered companies,” in the Companies' Act 1862, apply to companies registered under the Act itself, and “unregistered companies to companies registered before that Act; therefore, a company registered under the Act of 1844 was held an unregistered company" under the Act of 1862, and capable of being wound up under that Act. Ordinarily, where a valid debt, both at law and in equity, is established against a company, it is not, under the Act of 1862, discretionary with the Court to say whether the company shall be wound up or not; but it is their duty to direct the winding up. Where, however, the sole creditor of a company, claiming under a judgment upon which execution had been issued, and a return of nulla bona made, but which judgment was of a suspicious character, and was alleged to have been obtained by fraud, applied to have the company wound up, Held, that the company ought to have an opportunity of impeaching the debt by filing a bill, as there was a doubt whether a valid debt existed ; and the petition for winding up ordered to stand over for that purpose. -Bowes v. Hope Mutual Life Assurance Company (H. of L.), 35 L. J., Ch. 574. WINDING UP (Companies Act
, 1862).—A company, formed and registered under any of the Acts mentioned in the 175th section of the Companies Act, 1862, is, under the 176th section, to be treated as if it had been registered under that Act, and is, consequently, capable of being voluntarily wound up.-In re the London India Rubber Co. (lim.), 35 L. J., Ch. 592. 1 L. R. Ch. Ap. 329.
WINDING UP (Negotiation of Bills-Set off.)—The official liquidator should not, as a rule, discount bills of exchange which come to his hands, but should retain them until maturity, though there may be exceptions to this rule. He should not, in any case, negotiate bills without the sanction of the Judge in chambers, after notice to any person who might be prejudiced by the negotiation of the bills
. Where the holders of certain overdue bills of an iusolvent company in course of being wound up, were also acceptors of bills not yet at maturity, in the hands of the official liquidator, the Master of the Rolls refused to allow them to set off the sum due to them by the company against the amount due by them to the com
pany on their acceptances, but directed the official liquidator not to negotiate the bills.-In re the Commercial Bank Corporation of India and the East, 35 L. J., Ch. 617.
DAMAGES.—In order to entitle the owner of land to proceed in an action against a neighbour for excavating near his boundary, appreciable damage must have been caused thereby.
" Where there is an actionable wrong, such, for instance, as a person stepping on another man's land, or a returning officer refusing a vote tendered to him, or an interference with the flow of water to which a man is entitled, it is not necessary to prove pecuniary damage. But where an adjoining owner of land does a lawful act of ownership on his land, which is no wrong of itself, it may become actionable if appreciable damage be caused to his neighbour. Thus, if a man has a drawing-room window, and his neighbour builds a chimney which pours its smoke into it, the question of damages arises, and the maintainability of the action depends on the annoyance caused, and circumstances under which it
Again, if dancing causes a vibration in a neighbour's house, there is not necessarily a cause of action ; but if it would probably bring down the house, he has no right to have a ball, and would be liable after no for the fall of the house, because damage occurred. So the noises of trades, as of a coffee-mill or plate-rolling mill, only become actionable grievances because of the damage.”Per Erle, C. J. Smith v. Thackerah, 35 L. J., C. P. 276.
COMPANY (Power of Directors to bind Company).Seven persons signed a memorandum of association of a company, which was duly registered. There never were any articles of association. Two of such persons (one professing to act as managing director, the other as chairman of the company) engaged plaintiff as foreman at the company's brick-works. In an action by plaintiff for his wages, - Held, that, in the absence of proof to the contrary, the company must be taken to have given authority to the two persons to engage plaintiff.—Totterdell v. the Fareham Blue Brick and Tile Co. (Lim.), 35 L. J., C. P. 278.
LIBEL (Report of Proceedings in Bankruptcy). The examination of a prisoner in gaol by the Registrar in Bankruptcy under the 101st section of the Bankruptcy Act, 1861, is a public judicial proceeding; and a fair and correct report without comment of the examination is privileged, even though it may contain statements not relevant to the inquiry, which injuriously affect the character of a third person.—Ryalls v. Leader, 35 L. J. Ex. 185. i L. R. Ex. 296.
MARINE INSURANCE (Seaworthiness of Lighters).-On an insurance of goods on a voyage policy, until the same be safely landed at the port of discharge, including all risks to and from the ship,” there is no implied warranty that the lighter used at the end of the voyage to convey the goods from the ship to the shore shall be seaworthy for that purpose.—Lane v. Nixon, 35 L. J., C. P. 243. 1 L. R. C. P. 412.
MARINE INSURANCE (Suing and Labouring Clause : Particular Average).—Plaintiffs, whose vessel was chartered to bring a cargo of guano to the United Kingdom for certain freight, payable after arrival at the port of discharge, effected an insurance with defendants on the chartered freight by a policy containing the usual suing and labouring clause, and also the exception, “warranted free from particular average, also from jettison, unless the ship be stranded, sunk, or burnt.” The ship was driven by weather to put into Rio, where she became a total loss, without being “stranded, sunk, or burnt.” The cargo was safely landed at Rio, and, without notice of abandonment, was sent on in another vessel to the port of discharge, and plaintiffs afterwards received the chartered freight :-Held, that the expenses of conveying from Rio having been incurred to save the subjectmatter of insurance from a loss, could be recovered under the suing and labouring clause, notwithstanding there had been no abandonment; since such clause is not limited to cases where the assured abandons. The right to recover such expenses under that clause was not excluded by the warranty against particular average, as there was danger of the total loss of freight by the loss of the ship by perils insured against, and the expenses were thus incurred for the benefit of the defendants. Semble—That evidence that by usage in the business of marine in
surance, the term “particular average" does not include expenses of recovering or preserving the subject matter of the insurance, would be admissible, since it would not contradict the express terms of the policy.-Kidston v. Empire Marine Insur. Co. (Lim.), 35 L. J., C. P. 250.
PRINCIPAL AND AGENT.– Defendant authorised a broker at Liverpool to underwrite marine policies for him "not exceeding £100 by any one vessel ” The broker underwrote a marine policy for £150. At Liverpool it is notorious that there is generally a limit fixed between principal and broker, though not disclosed to the public :- Held, that the agent had no authority to underwrite for £150, and that the contract being indivisible, the assured could recover nothing from defendant in respect of the policy.-Baines v. Ewing, 35 L. J., Ex. 194. 1 L. R. Ex. 320.
SUCCESSION DUTY.—Testator devised real estate to trustees on trust out of the rents to pay interest on certain mortgage debts, and certain annuities, and to pay the surplus to a cestui que trust for life, with remainder over. Power was given by the will to the trustees to pay certain sums to agents or receivers for collecting the rents :-Held, that in estimating the value of the succession of the cestui que trust no allowance was to be made for these payments for collection.--In re Elues (2 H. and N. 719, 28 L. J., Ex. 46) extended. In re Earl Cowley, 35 L. J., Ex. 177. 1 L. R. Ex. 288.
LANDS CLAUSES CONSOLIDATION Act, 1845 s. 69.-An order for the application to building purposes of the purchase money of land taken under the act, will not be made except under special circumstances. A corporation was authorized by statute to borrow for erection of municipal offices on the security of rates. Land belonging to it having been taken by a railway company and the purchase money paid into court, a petition by the corporation for the payment out of court of this fund, to be applied in the erection of municipal offices, refused, diss. Knight Bruce, L. J.-Ex parte Corporation of Liverpool, 35 L. J. 655
MERCHANT SHIPPING ACT, s. 510, 511, 514 (Collision at Sea: Loss of Life of Seamen).—The liability of a shipowner for loss of life to the seamen of a vessel run down by his ship is not limited to £30 for damages payable in each case of death; and this rule applies whether the Board of Trade do or do not institute proceedings in respect of such loss of life. Where the aggregate damage sustained by all the
claimants exceeds the whole amount for which the shipowner is liable (viz., at the rate of £15 per registered ton of his ship) the fund must be distributed rateably in proportion to the damages sustained by the claimants respectively; but where the whole amount of damages is less than that for which the shipowner is liable, the amount of damages sustained by each is to be paid in full.—Ĝlaholm v. Barker, 35 L. J., Ch. 657.
SPECIFIC PERFORMANCE (Railway: Damages).—A railway company agreed with a landowner to make a bridge and other accommodation works; and the works being commenced in a manner at variance with the agreement, the landowner filed his bill for specific performance, and for an injunction to restrain the completion of the works in progress. The motion for the injunction was ordered to stand over until the hearing of the cause, upon the company's undertaking to deal with the works as the Court should direct. Before the hearing the works were completed, and the railway opened for public use,--Held, per L. Romilly, M.R., that although the plaintiff had sustained some damage, the Court, taking into consideration the interests of the public, must refuse him any relief except in damages.— Raphael v. the Thames Valley Rail. Co., 35 L. J., Ch. 659.
Trust (Forgery by Solicitor, constructive notice).—The equitable doctrine of constructive notice as between solicitor and client is founded on the principle that the solicitor is “alter ego,” and his knowledge is the client's knowledge. A solicitor, one of three trustees, executed an assignment of leaseholds, part of the trust estate, to a purchaser for value. The solicitor, who acted as such for all parties, had forged the necessary written consent of the cestui que trust to the sale, and the signatures of his two co-trustees to the assignment, -Held, per Kinders
ley, V.C., that the genuine execution of the assignment by the solicitor passed the legal estate in one-third of the property, but that no beneficial interest passed to the purchaser, on the ground of constructive notice,--the fraud of the solicitor not affecting the general rule.-Boursot v. Savage, 35 L. J., Ch. 627.
EVIDENCE (Negligence, Ship).-A ship, of which defendant was registered owner, was lying in a dock under the care of a shipkeeper, by whose negligence one of the hatch ways was left open. Plaintiff, in lawfully passing over the ship, fell down this hatchway and was injured. In his action against the defendant, it was proved and found at the trial that the injury was caused by the negligence of the shipkeeper ; but the only evidence to fix defendant was his being described in the register as “owner,"—Held (diss. Mellor, J.), that this was evidence to be left to the jury, and that it would have justified them in finding that defendant had employed the shipkeeper.-Hibbs v. Ross, 35 L. J., Q.B. 193.
LETTERS PATENT (Rights of the Crown, Petition of Right).—By letters patent the Crown granted to the suppliant special licence, power, sole privilege and authority to use, exercise, and vend a certain invention for improvements in the construction of ships, and to "enjoy the whole profit, benefit, commodity and advantage from time to time coming, growing, accruing and arising by reason of the said invention for and during the term of,” &c. The letters purported to be granted upon the petition of the suppliant, and “of our special grace, certain knowledge and mere motion;" and they contained a command “ to all and every person and persons, bodies politic and corporate, and all other our subjects whatsoever," that they should not use the invention without the consent, licence, and agreement of the suppliant, his executors, &c., on such pains and penalities as could be justly inflicted, and liability to damages. There was also a clause that the letters should be void if the suppliant, his executors, &c., should “not supply or cause to be supplied for our service all such articles of the said invention as he or they should be required to supply by the officers or commissioners of the department of our service for the use of which the same shall be required," &c. It was further provided, that the letters were to be construed in the most favourable and beneficial sense for the best advantage of the suppliant, his executors, &c. The Crown having made use of the invention, a petition of right was preferred by the inventor,—Held, first, that the Crown was not excluded from the use of the invention. Secondly, if the effect of the letters was to exclude the Crown, yet that a petition of right could not be maintained in respect of the infringement of the patent right. — Feather v. the Queen, 35 L. J., Q.B. 200.
RailwAY AND CANAL TRAFFIC Act.— The decisions on applications for injunction against undue preference, under 17 & 18 Vict. c. 31. s. 2, ought not to bind the Court in the manner that a precedent in law binds, and therefore Garton v. the Bristol and Eceter Railway Company, 6 C.B. N.S. 639, and Baxendale v. the South-Western Railway Company, 12 C.B. N.S. 758, are not always to be followed when the vans of a railway company are admitted into their goods station after the hour when it is closed against the public in general. So held by Erle, C.J. and Montague Smith, J.; but held by Willes J. and Keating J., that those cases are binding and that they are right.-In re Palmer v. the London and SouthWestern Rail. Co., 35 L. J., C.P. 289.
CONTRACT (Res perit domino).—Plaintiffs contracted with defendant to erect certain machinery in his buildings; when it was only partly erected, a fire broke out in the buildings and destroyed both the buildings and the machinery then erected, -Held, that plaintiffs were entitled to recover from defendant the price of the portion of the machinery so erected and destroyed.--Appleby v. Meyers, 35 L. J., C.P. 295.
DAMAGES (Consequential).-Defendant sold to plaintiff a cow, which he knew to be infected with a contagious disease, falsely representing that she was free from disease. Plaintiff, believing the representation, put the cow in a shed along with other cows: Held, that plaintiff was entitled to recover, in addition to the purchase money, the value of the other cows which he had lost by their becoming VOL. X. NO. cxx.—DECEMBER 1866.
thus infected, such damage being the natural consequence of the plaintiff's acting on the defendant's representation.—Mullett v. Mason, 35 L. J., Č.P. 299.
Customs.—It is an offence, under sec. 6. of the Customs Act, 22 & 23 Vict. c. 37, to cause to be imported goods of one denomination concealed in packages of goods of any other denomination, though the goods are not subject to any import duty. Sec. 6. imposes a penalty on any person who “shall cause to be imported goods of one denomination concealed in packages of goods of any other denomination," and sec. 8. enacts, that the word “importer .” in any act relating to the Customs is “ to apply to and include any owner or other person for the time being possessed of or beneficially interested in any goods imported,"—Held, that the words “
cause to be imported” in sec. 6. are not to be interpreted according to the meaning “importer" in sec. 8, which inclu les many persons not coming within sec. 6,--Budenberg v. Roberts, 35 L. J., Mag. Ca. 235.
SHIPPING (Bill of lading).—A bill of lading of forty-seven casks of oil contained a memorandum in the margin, "not accountable for leakage.” The casks were, at the desire of charterers, stowed in the same hold with rags and wool (part of the cargo), whereby they became heated and leaked:Held, that the condition as to leakage was not limited to the ordinary quantity of leakage, and that such memorandum protected the shipowner as to all leakage, unless caused by his own negligence, and that ignorance that casks so packed would become heated and leak did not amount to negligence.—Ohrloff v. Briscall; The Hélène, 35 L. J., P. C., 63.
SHIPPING (Stoppage in transitu).-M. & D., Bordeaux, through their agent at Hull, sold sixty tons of linseed cake to S. & T. The cake was shipped, and a bill of lading, indorsed by M. & D., was delivered to S. & T. in exchange for their acceptance at three months. The bill of lading was afterwards re-delivered to the agent of M. & D. to hold as security against the acceptance. Subsequently T. fraudulently obtained it from the agent and indorsed and delivered it to the appellants, who received the same for valuable consideration and without notice of the fraud. Before the arrival of the goods at Hull, S. & T. became insolvent: - Held, that S. & T. acquired no new title to the goods by the fraud of T., but merely obtained the means of transferring their property in the goods, and that by the transfer to the appellants for valuable consideration and without notice of the fraud, the right of the vendors to stop the goods in transitu was gone. An ownership which is perfect at law, though voidable as to part (viz. possession), cannot be treated differently from an ownership voidable as a whole, but in the interim protected by the interposition of a bona fide purchaser for valuable consideration.—Pease v. Gloahec; The Marie Joseph, 35 L. J., P. C., 66.
(COMPANIES' Act, 1862, s. 35).—Shares in a limited company were allotted before the memorandum and articles of association were in existence. These differed materially from the prospectus. Upon motion by the allottee, under the Act, Wood, V.C., ordered his name to be struck off the register; and the order was affirmed by the Lords Justices. The Court has, under the Act, s. 35, a discretionary jurisdiction to remove the names of members of companies from the register. Mere lapse of time will not amount to acquiescence, nor attempts to sell shares; but receiving dividends or otherwise acting as a partner would bind the allottee.—Ex parte Stewart, 35 L. J., Ch. 738.
COMPANIES' Act, 1862—LIMITED LIABILITY (Contributory-Set off).-A shareholder in a limited liability company being also a creditor of the company to a larger amount than that remaining unpaid upon his shares, is not entitled to set off so much of his debt as is equal to the amount of calls which have been made upon, but not paid by him, and to receive a dividend for the balance; nor is he entitled to have the dividend calculated upon the entire debt, and to be paid the balance of dividend after deducting the amount of the call; but he must first pay the call, and he will then be entitled to a dividend pari passu with the other creditors who are not shareholders. Difference in this respect between a member