properly be paid out of the corpus of the fund, and ordered | bills were drawn or accepted by one firm or another, they must accordingly. Winding-up-Company constituted of Four Firms-Authority to accept Bills. This was an adjourned summons in the winding-up of the Adansonia Fibre Company. On the 18th of September, 1871, the following four mercantile firms, namely, Fox Brothers, Malcolms & Co., Merry, Willis, & Lloyd, and W. J. & A. W. Adams, associated themselves for the purpose of carrying on in partnership the trade in fibre to the West Coast of Africa, which was then established by the plaintiff under his firm of Fox Brothers, upon certain terms embodied in a memorandum of agreement of that date made between and signed by the said four firms. This agreement was to the effect that the business should be carried on under the style of Fox Brothers, and it was to be taken over as from the 31st of the previous December; that each party should be liable in respect of the business in proportion to his share in the undertaking, but it was understood and agreed that the finance of the business should be carried on by acceptances of the several parties in terested, as might from time to time be arranged; that the profits or losses arising out of the trading should be apportioned as follows, viz, 25 per cent. to each firm, and that certain specified sums should be credited to Fox Brothers in consideration of their services in the management of the business, including offices and clerks' services. The company was known among the members of the respective firms as the Adansonia Fibre Company, but the name was not made public, and the company was never registered under the Companies Acts. The trading was carried on under the terms of the before stated agreement up to February, 1872, when the speculation proving unsuccessful, an order was made upon petition to the Court for winding up the company, and an official liquidator was appointed. While the company was in existence, the financial arrangements were carried out by means of bills drawn by one or other of the firms and accepted by another of the firms according as their credit enabled them to operate, and bills to the amount of over 10,000l. were discounted by Messrs. Miles & Co., bankers of Bristol, and these bills having been dishonoured remained in the hands of Messrs. Miles at the date of the winding-up of the company. This summons was taken out by Messrs. Miles & Co., who claimed to prove for the whole amount of the bills in their hands against all the firms forming the company now under liquidation. On the part of the official liquidator, it was contended that the individual firms by whom the bills were accepted could alone be bound by their acceptances, and that the drawing or acceptance of any one of the firms could not bind the aggregate body, there having been no name but their own used by any of the firms to denote a partnership. These firms were not registered as a company, they had no name which was known to the public, and the bills were accepted on the responsibility of each firm without any joint liability. Higgins, Q.C., and Robinson, for Miles & Co. THE VICE CHANCELLOR said it was clear that by the agreement between these four firms authority was given to any or either of them to draw and accept bills for the benefit of the company formed by them for trading purposes. The business was carried on by the four firms as partners, and whether the be deemed to be acceptances for the benefit of the joint speculation, and to be a partnership liability. All the four firms therefore were liable for the bills accepted for the purpose of the business, and there must be an inquiry as to which of the bills were so drawn or accepted under the authority of the agreement. Solicitors: Druce, Sons, & Jackson; Ellis & Co. ; Linklater & Co.; Paine & Layton. V.-C. B. KEMPSON v. ASHBEE. Undue Influence-Setting aside Security. June 19. This was a bill to set aside, as improperly obtained from plaintiff, two bonds of the 13th of September, 1859, and the 9th of March, 1866, and to restrain any proceedings by defendant for enforcing payment by plaintiff of the moneys secured by them. Plaintiff, who was born in 1837, was entitled to property under the will of her father, who died in 1849. In 1851 her mother was married to Charles Sladden, and in 1854 plaintiff, then aged 17, left school and went to reside with her mother and stepfather, with whom she had lived ever since. In 1857 Sladden was in difficulties and applied to defendant, a farmer near Herne Bay, for assistance. Defendant agreed to lend him some money upon the terms of his getting plaintiff to join in the transaction as a surety for repayment of the amount. The plaintiff at first refused, but at length, under considerable pressure exercised by Sladden, she consented, and signed a bond as surety, prepared by defendant's solicitor. In 1859 plaintiff was again applied to, and again reluctantly consented, upon Sladden's assurance that her signing would be only a matter of form, and that she would never be called upon to pay anything. The bond signed by her as surety for Sladden on the 13th of September, 1859, was for 600l., the amount then alleged to be due from Sladden to defendant for principal, interest, and costs in respect of the former loan. On the 9th of March, 1866, under the same circumstance as before, she signed another bond for securing payment to defendant of 7057. with interest. Proceedings having been taken in 1872 to recover payment of the amount, this bill was filed raising the case that defendant and his solicitor were well aware at the time of her signing that plaintiff was then residing with Sladden as a member of his family, that he stood to her in loco parentis, that she received no consideration, and that she executed it at his instance and under his influence improperly exercised without any independent advice or assistance. Kay, Q.C., and Phear, for the plaintiff. Eddis, Q.C. (Speed with him), for the defendant, contended that plaintiff had in 1866, when fully emancipated, deliberately and with full knowledge of her liability confirmed the transaction by which she became surety for her stepfather's debts; and that the fact of her rendering herself so liable even in the first instance, was not of itself ground for imputing undue influence to the stepfather, or (even if such influence had been exercised) for imputing knowledge of it to the defendant. THE VICE-CHANCELLOR held that plaintiff had established her right to be relieved from these securities. The onus was cast upon the defendant, in taking a security from a person just come of age, and living in the house and under the control of her stepfather, of shewing that no undue influence had been exercised over plaintiff, and that her giving the security was her deliberate unbiassed act, made under proper and independent advice and assistance. Sladden himself could not under the circumstances have derived any benefit from a person standing to him in the position that plaintiff did, nor could the defendant who claimed under him do so. word of explanation was given by defendant's solicitor to this young and inexperienced person. Te conditions imposed by the Court as incumbent upon those claiming under voluntary gifts of this nature had not been fulfilled, and the security given Not a in 1866 being merely a continuation of the transaction of 1859, V.-C. B. NICHOLSON V. CARLINE. June 27. Administration-Wife's Equity to a Settlement-Bankruptcy of Husband. The plaintiff, a married woman, became entitled under the will of Thomas Winn, who died on the 3rd of January, 1855, to a share in his residuary estate worth upwards of 40,000l. No settlement had been made on the plaintiff's marriage. In 1859 the husband became a bankrupt. The wife had property partly under her father's will, and partly under the will of the testator, amounting to about 700l. a year of her own, out of which she had been supporting herself and four children. The bill was filed in 1860 for administration. The husband had received out of the wife's share some 97007., being about 40007. Jess than one-third of the whole. One of the questions upon second further consideration was, whether the Court would, upon the petition of the wife, in exercise of its discretion, settle the rest of her share upon herself and her children. The residue of the share was estimated at about 1500. Eddis, Q.C., and Langworthy, for the plaintiff, the wife. De Gex, Q.C., and Joseph Beaumont, for the assignees of the husband:-The wife is already provided for, and in such a case it is the practice of the Court to allow the jus mariti to prevail. Edward Winslow for the husband. growing on the devised estates, and a question arose as to whether they were to be considered real or personal estate. Greene, Q.C., and G. O. Edwards, for the plaintiff, contended that where land with growing crops was devised, the crops passed with the real estate. Dickinson, Q.C., and Henderson, for the widow of the testator, contended that where the devise failed, even though the legal estate was in the trustees, the emblements were personal estate. F. G. A. Williams, for the executors and trustees. W. Pearson, Q.C., and Locock Webb, for the next of kin. THE VICE-CHANCELLOR said that in the absence of any authority he should hold that where the devise failed as to the beneficial interest the emblements were personal estate. Solicitor: A. C. Edwards; Markby, Tarry, & Stewart. Bankruptcy Act, 1869, s. 19-Failure of Debtor to deliver up On the 17th of September, 1873, Sheaves and Waters, who October the creditors resolved on a liquidation and appointed were coal merchants, filed a liquidation petition. On the 8th of trustees, and on the 5th of November they granted the debtors their discharge in respect of their partnership liabilities. The of 17. per week each, to realize the stock, collect the book debts, trustees employed both the debtors as their servants, at a salary and keep the accounts. On the 16th of December the trustees discovered that Waters had on the 13th of December paid away his private creditors, and that he had received a further sum of 111., part of the partnership assets which he had collected, to 771, which he refused to hand over. On the 13th of April an order was made that Waters should, on or before the 18th of May, pay the 1887. to the trustees. He failed to obey this order, and on the 28th of May the judge ordered him to be committed for contempt. Waters appealed. inasmuch as Waters had received the money not as debtor, but Bagley, for the appellant, argued that s. 19 did not apply, THE VICE-CHANCELLOR said that the principles of the Court were clearly settled. Every word of the judgment of Sir J. Leach in Aguilar v. Aguilar (5 Madd. 414), justified the petition of the wife in this instance. The husband had entirely failed to discharge the duty which the law cast upon him of maintaining his wife and children. The circumstance that the wife had 7001. a year of her own was no reason why she should not have more. The burden of maintaining the four children rested upon her alone, the husband contributing nothing. It might appear somewhat harsh to say that whilst she possessed means, the hus-as servant of the trustees. Moreover he had received his order band, who was incapacitated from earning an income for him- with imprisonment under the Debtors Act, 1869. of discharge. Nor was there any breach of trust punishable self, should take nothing out of the property. But considering that the wife was in this instance discharging the husband's duty, the Court was bound, upon plain principle, to order the whole of the residue of the fund to be settled, and the minutes would be prepared accordingly. The costs of all parties, includ-order to commit was rightly made. ing those of the assignees in bankruptcy, of the wife's petition, would come out of her share of the fund. Solicitors: Drake & Son; Lawrance, Plews, & Boyer. Finlay Knight, for the trustees. THE CHIEF JUDGE held that s. 19 of the Bankruptcy Act, 1869, applied. The debtors were bound by that section to assist the trustees in realizing the estate even without remuneration. The Solicitors: A. Storey; Sharpe, Parkers, & Co. Common Law. June 20. RICHE v. ASHBURY RAILWAY CARRIAGE AND IRON COMPANY. Company-Corporation-Memorandum of Association-Contracts ultra vires-Ratification-Companies Act, 1862, ss. 6, 8, 9, 10, 12. Devise of Land-Emblements-Personal Estate. Samuel Lamplugh, of Kilhane, Yorkshire, after giving several Ex. Ch. from Ex. legacies and annuities, devised his real estate to trustees upon trust for such children as he might have, with various provisions for their maintenance and education and advancement, with directions for accumulation; and in case he should leave no child then his trustees were to stand possessed of his real estate and of his residuary personal estate upon trust for his brother, James Lamplugh, his heirs, executors, administrators, and assigns absolutely. Error from the judgment of the Court of Exchequer on a special case stated in an action brought to recover damages for the breach of certain contracts. The testator died on the 18th of April, 1872, and his will was By the 3rd paragraph of the defendants' memorandum of assoproved in June, 1872. James Lamplugh predeceased the tes-ciation the objects for which the company was established were tator, leaving the plaintiff, an infant, who is the testator's heirat-law. On the 26th of June, 1872, this bill was filed by the infant to administer the testator's estate. At the testator's death considerable crops were standing and stated to be "To make, sell, or lend on hire railway carriages and waggons, and all kinds of railway plant, fittings, machinery, and rolling stock; to carry on the business of mechanical engineers and general contractors; to purchase, lease, work, and sell mines, minerals, land, and buildings; to purchase and sell as merchants timber, coal, metal and other material, and to buy and sell any such materials on commission as agents." And by article 4 of the articles of association, "An extension of the company's business beyond or for other than the objects or purposes expressed or implied in the memorandum of association shall take place only in pursuance of a special resolution." A concession having been granted by the Belgian government for the construction of a railway from Antwerp to Tournai, the concessionaires had entered into a contract with the plaintiff for the construction of the line. In pursuance of a resolution of the directors of defendants' company, J. Ashbury (in January, 1865), entered into negocia tion with the concessionaires for the transfer of the concession, and ultimately four contracts were entered into by him on behalf of the defendants, by one of which the concession was transferred to the defendants, who undertook to constitute in Belgium a société anonyme and to transfer the concession to it; by the second, the proposed société anonyme purported to contract with the plaintiff for the construction of the works, and J. Ashbury undertook, when the société was constituted, to sign the agreement in the name of defendants; the third contained an arrangement between plaintiff and defendants by which defendants were to supply the rolling stock of the railway, and were to make payments to the société for the benefit of plaintiff; by the fourth, the contract for the rolling stock was reconveyed by the defendants to the plaintiff, subject to certain deductions. These contracts were approved by the defendants' board of directors in February, 1865. The société anonyme was afterwards duly constituted, and the ratification of the second contract by that company was accepted by plaintiff. In October, 1865, Sir Cusack Roney, an agent for the defendants, entered into three further contracts, the first of which modified some stipulations of the contract with the original concessionaires; the second modified the contract between the société and the plaintiff; and the third modified the two contracts between the plaintiff and the defendants. Previously to these transactions similar arrangements had been entered into by the defendants' directors with reference to a Spanish railway concession, under which large advances had been made by the directors out of the defendants' funds. In October, 1865, the plaintiff entered on the construction of the Belgian line, and payments were from time to time made for his benefit by the defendants to the société. The defendants' directors being advised that these contracts were ultra vires, projected a company to take them over. At a general meeting of defendants' company, held in November, 1865, a balance-sheet was presented shewing advances on account of the Belgian and Spanish contract; objections were raised to these items, but an assurance having been given by the chairman that the Belgian contract would not appear again, but would be taken over by the proposed company, a resolution approving and adopting the accounts was passed. On the 20th of December, 1866, an extraordinary general meeting of defendants' company was held, and a committee was appointed to inquire into the company's affairs. The committee reported to an extraordinary meeting held on the 7th of May, 1867, that the Belgian contracts were ultra vires, that they did not bind the company, and that the directors were liable to replace the moneys expended, but recommended an amicable settlement. A committee was appointed in pursuance of this recommendation, and at the annual meeting of the company, held on the 14th of May, 1867 (the circular convening which mentioned, as part of the business of the meeting, the consideration and adoption of any report to be made by this committee, and when the advances on the Belgian and Spanish contracts again appeared in the balance-sheet), a resolution was passed adopting a recommendation of the committee to the effect that certain persons should "purchase" from the company the Belgian and Spanish contracts, the company undertaking to take any legal proceedings necessary to enforce the contracts, at the expense and on the indemnity of the purchasers; and subject to this resolution the balance-sheet was approved. At another annual meeting, held on the 24th of December, 1867, a formal contract carrying out the resolution of the 14th of May (and mentioned in the circular convening the meeting), was sanctioned, and the seal of the company affixed, and the entry of "advances" in the balance-sheet was altered to "advances to be refunded in accordance with" the resolution of the 14th of May. The company had already (in May, 1866), repudiated the contracts, as ultra vires, and refused further to perform them, and for this alleged breach the action was brought. The defendants contended that the contracts were ultra vires, and did not bind them. The plaintiff contended the contrary, and that even if ultra vires, they had been ratified by the shareholders. The defendants contended that the contracts had not been so ratified in fact; that the alleged ratification came too late, the contracts having been already repudiated; and, further, that they could not be so ratified as to bind the company, on the ground that they were outside of the objects enumerated in the memorandum of association. THE COURT below (Martin and Channell, BB., Bramwell, B., dissenting) gave judgment for the plaintiff, on the ground that the contracts, though ultra vires, had been ratified. The defendants brought error. The case was argued after Trinity Term, 1873, by Watkin Williams, Q.C. (Sir J. B. Karslake, Q.C., and Cohen, Q.C., with him), for the defendants, and by Benjamin, Q.C. (W. G. Harrison with him), for the plaintiff. June 20. Judgment was delivered:BLACKBURN, BRETT, and GROVE, JJ., were of opinion that the contracts had been in fact ratified by the individual shareholders by the proceedings in 1867, that the plaintiff not having accepted the repudiation of the contracts in May, 1866, the ratification was not too late, that at common law a corporation has the same capacity to bind itself by contract as an individual, and that this capacity was not taken away by the Companies Act, 1862, from companies incorporated under it, and the defendants were therefore capable of ratifying the contracts in question. KEATING, ARCHIBALD, and QUAIN, JJ., were of opinion that the contracts being beyond the scope of the memorandum of association, were incapable of ratification, and further, that there was no evidence that they had been ratified in fact by all the shareholders. THE COURT being equally divided, the judgment below was affirmed. Attorney for plaintiff: Wilkinson. Statute of Frauds, s. 4-Agreement not to be performed within a Year -Contract for Support of legitimate Children-Annuity— Executed Consideration. The defendant, who was the father of seven illegitimate children of the plaintiff, verbally agreed with her to pay her 300l. per annum by equal quarterly instalments, for so long as she should educate and maintain them. At the time of the making of the promise the eldest child was about 14 years old. In an action to recover for money actually expended upon the maintenance and education of the children Held (affirming the judgment of the Court below), that the plaintiff was entitled to recover, though the promise was made by parol only. Arthur Charles (H. T. Cole, Q.C., with him), appeared for the plaintiff. Folkard (St. Aubyn with him), for the defendant. Attorneys for defendant: Wedlake & Letts, for Edmonds & Son, Plymouth. Attorneys for plaintiff: Le Riche & Son for Carter, Torquay. ASTON v. WOOD (Will-Construction-Legacies-Gift of Residue V. 160 159 M. R. 156 158 157 L. JJ. 155 157 161 156 ALLISON V. BRISTOL MARINE INSURANCE COMPANY (Marine In- Q. B. 163 DIE ELBINGER, &c., COMPANY v. ARMSTRONG (Contract, Breach of, for Non-delivery of Article to be manufactured-Measure of Damages) Q. B. 162 DRINKWATER, PET.; DEAKIN, RESP. (Election Petition-Disqualification-Votes thrown away) . C. P. 163 LIVER ALKALI COMPANY v. JOHNSON (Carrier-Fixed TerminiDefinite Route-Conveyance of Single Customer's Goods) е Ex. Ch. from Ex. 164 CLEVELAND'S (DUCHESS OF) SETTLED ESTATES, In re (Settled herself against the suit for divorce instituted by her husband, Sir Charles Mordaunt, Baronet; the verdict adding that she had been in that state of mental incapacity for nearly a year,namely from the 30th of April, 1869. Upon this verdict, the Judge Ordinary, Lord Penzance, made an order suspending all proceedings in the case "until Lady Mordaunt's recovery." Sir Charles thereupon appealed to the Full Court of Divorce, insisting that her Ladyship's mental incapacity, even although permanent, ought not to bar, or impede, the redress for adultery awarded by the legislature. The Full Court pronounced against the appeal,-Chief Baron Kelly, however, dissenting (Law Rep. 2 P. & M. pp. 103-119). As matter of course under these circumstances, Sir Charles Mordaunt brought the case before the House of Lords, having for his counsel at the Bar on the 1st of July, 1873, The Solicitor-General (Sir George Jessel), Dr. Spinks, Q.C., and Mr. Inderwick. Dr. Deane, Q.C., Mr. H. Giffard, Q.C., and Mr. Searle, appeared for the respondent, Sir Thomas Moncreiffe, Baronet, Lady Mordaunt's father, and her guardian ad litem. The Common Law Judges who were present at the hearing did not deliver their opinions until the 15th of May in the present session,-when Chief Baron Kelly, speaking for himself and his "learned brothers Denman and Pollock," announced that they disagreed with the judgment appealed from, and advised that it should be reversed. Mr. Baron Martin, who had retired from the Bench, was of the same opinion. But Mr. Justice Keating and Mr. Justice Brett took the opposite view, and supported the judgment of the Court below. On the day appointed for the final judgment of the House, LORD CHELMSFORD and LORD HATHERLEY delivered their opinions. Regretting that they had no longer the assistance of Lord Colonsay, who had heard the case, they concurred in holding that a suit for divorce against a wife may be commenced and carried on notwithstanding her lunacy. The decree appealed from was therefore reversed, and the cause was remitted back to the Court below, with directions to proceed accordingly. Appellant's Solicitor: Benjamin Hunt. GREAT WESTERN RAILWAY COMPANY v. MAY. Railway-" Superfluous Land." June 26. In consequence of a notice given on the 11th of March, 1846, under the provisions of the Great Western Railway Act, the directors of the railway became possessed of a field before then the property of the respondent, and under a similar notice of the 5th of November, 1846, they obtained possession of another field up to that time the property of the respondent. In each of the notices it was stated that the land was required for the purposes of the railway. Upon a portion of the land a station and other works were erected; upon another portion chalk and other "spoil," excavated from some neighbouring land, were thrown upon it. This latter portion had since been used for garden ground, and the company received rent for it as such. May contended that so much of the land as was used for such a purpose was "superfluous land" within the meaning of the 127th section of the Lands Clauses Consolidation Act, 1845, and that, being an adjoining owner, he was entitled to claim the same under the provisions of that section. The directors resisted his claim. The Court of Queen's Bench (Law Rep. 7 Q. B. 364) gave judgment in favour of May, and that judgment was affirmed in the Exchequer Chamber (Law Rep. 8 Q. B. 26). This proceeding in error was then brought. Mr. Munisty, Q.C., Mr. Thesiger, Q.C., and Mr. J. C. Mathew, were for the company. Mr. H. T. Cole, Q.C., and Mr. Francis Pinder, appeared for the defendant in error. The LORDS affirmed the judgment of the Court below. Attorneys for the plaintiffs in error: Young, Maples, Teesdale, & Nelson. Attorneys for defendants in error: Johnson & Weatheralls. June 30. CORK DISTILLERY COMPANY v. GREAT SOUTHERN AND Railway Company-Carrier-Consignor and Consignee of Goods. The distillery company had sold 20 puncheons of whisky to Messrs. Stein & Co. of Limerick, and the whisky was to be carried from Cork to Limerick by the railway company. The following was the form of the sets of papers:-(They were partly printed, and the blanks filled up in writing, and some of the words were ranged in columns)-One was: "Delivered to the Great Southern and Western Railway Co. in good order. Customs warehouse of One puncheon of whisky for Limk. Station Messrs. John Stein & Co. Limerick. Cork Distilleries Co. (Limited)." The second was:-"Received from Cork Distilleries Co. Limited, in good order and condition, Puncheons, &c., of whisky. To be delivered in like good order at the undermentioned stations, as follows: One puncheon. For Mr. warehouse. Limerick Station." All these words being in separate columns, which were generally headed with descriptive words. In a second line under each of these words were others: "and John Stein & Co. Limerick. Do " ; and this paper was signed "For Great Southern and Western Railway Co." The third paper was in the following form:-"Cork. 19th day of February, 1869. From Thomas Henry Hewitt & Co. Watercourse Distillery. One Puncheon of Whisky. Addressed to Seymours' Customs' Warehouse at Limerick. For J. Stein & Co." In addition to these papers there was the Customs' permit, and the usual bond given to the Customs, to secure payment of the duty. The Customs' warehouse, and the Seymour's Customs' warehouse (both being places under the control of the Customs' department) were at a distance of about half a mile from the railway station. The spirits were not carried to either of these warehouses, but were demanded and received by Stein & Co. at the railway station itself, they having paid the carriage at the moment. In consequence of this the delivery at the Customs' warehouse and the payment of the duty being incomplete, the Customs proceeded against the Cork Distilleries Co. and obtained 13607. from that company in respect of duty. The distillery company thereon brought this action against the railway company for an undue delivery of the spirits, contending that on the terms of the various documents, and on the practice of delivery of goods in general, the railway company was bound to deliver the spirits at the Customs' warehouse, when Stein & Co. could not have obtained possession of them without first paying the duty. The Court of Queen's Bench had taken this view of the matter, but this judgment was reversed in the Court of Exchequer Chamber, and judgment given for the railway company. This appeal in error was then brought. The judges were summoned, and Mr. Justice MELLOR, Mr. Justice BRETT, Mr. Justice QUAIN, Mr. Justice GROVE, Mr. Baron CLEASBY, and Mr. Baron AMPHLETT attended. Sir J. B. Karslake, Q.C., Mr. Cohen, Q.C., and Mr. Wood Hill, appeared for the distilleries company. Mr. Joseph Brown, Q.C., and Mr. Gerald Fitzgibbon, Q.C. (of the Irish Bar), were for the railway compay. The question put to the judges was, whether, under the circumstances of the case, the railway company was liable to the distillery company for having delivered the spirits to Stein at the railway station. The judges retired to consider the question, and on their return answered it in the negative, on the ground that the circum |