that sum.

unless the defendants should think proper to make advances beyond And it was thereby declared and agreed, by and between the parties thereto, that the defendants were to trust to their rights under those presents, and the security thereby given, and to any other securities they might take or have taken, for repayment of advances made and to be made by them for the said several firms; and that they were not to make or have any claim in respect of such advances against any of the members of the said firms. And the said A. Jennings did, by the said deed, enter into covenants to give effect to the said arrangements; and, by the said deed, it was further mutually declared and agreed by and between the said several plaintiffs, that the several partnerships existing between and among them, and which composed the several firms of Manuel & Co., of Fen Court aforesaid; C. P. Varsami, of Glasgow; G. Lascaridi & Co., of Liverpool; and J. Collingwood & Co., of Gibraltar, were thereby and thenceforth dissolved. And in consideration of the assignment thereby made, and the right and interest of the several plaintiffs, under the trusts thereby created, in and to the surplus balance, if any, after paying the defendants, the plaintiff's thereby mutually released each other from all other claims in respect of the said partnerships; and, in the event of any claim being made, or attempted to be enforced, by any one or more of the plaintiffs, against any other or others of them, in respect of any of the said partnerships, these presents might be pleaded as, and given in evidence of, a full and complete release of all such claims; but that release was not to extend to the rights of the plaintiffs to the surplus, if any, of the property and assets thereby assigned in trust as aforesaid. And the plaintiff's say, that afterwards all conditions precedent were performed, and all times elapsed, and all matters and things were done and happened, and existed, necessary to entitle the plaintiffs to have the said covenant on the part of the defendants, namely, that they would from time to time make advances of money, and furnish funds to the said trustees for the time being to meet the engagements of the said several firms for the purposes aforesaid, performed by the defendants; and to have moneys advanced and funds supplied to meet, among other engagements, certain of the said liabilities and engagements of the plaintiffs, to wit, certain liabilities and engagements of the said firm of Manuel & Co., amounting to a large sum of money, to wit, the sum of 10007., according to the true intent and meaning of the said deed, and in order to give proper effect to the said arrangement. Yet the defendants broke their said covenant in this respect that they wholly and wrongfully, and contrary to the true intent and meaning of the said deed, absolutely refused to advance money, or to furnish any fund, in any manner whatsoever, to meet the said liabilities and engagements of the said firm of Manuel & Co., although by so doing the defendants would not have exceeded. the said sum of 123,500l., the aforesaid limit of the advances to be made by them: whereby the plaintiffs have sustained great damage by reason of the said arrangement not having been fully carried out, according to the true intent and meaning thereof; and by reason of the said liabilities and engagements of the said firm of Manuel & Co. not being liquidated, as they might and ought to have been if the defendants had performed their said covenant, and had not committed

the said breach thereof; and by reason of the said firm of Manuel & Co. being still liable in respect of the said arrangements, and the affairs of the said firm not being wound up; and the plaintiffs claim 10007. Seventh plea, that it was and is essential to the defendants. having their advances secured by such assignments as in the recital of the said deed mentioned, that the said John Collingwood should execute the said deed, or otherwise concur or join in such assignment as aforesaid; and that without the concurrence of the said John Collingwood the businesses of the said firms, in which he was such a partner as in the said deed and declaration mentioned, could not be wound up by such trustee, or in such manner as by the said deed was provided and intended. And the defendant entered into and executed the said deed on the faith and confidence that the same would be forthwith executed by the said John Collingwood as a party thereto; and the said John Collingwood, although the time for his executing the said deed has long elapsed, has not signed, sealed, or delivered, or in any way executed, the said deed, or made, or joined, or concurred, in the assignment therein contained, or any such assignment as in the recitals of the said deed mentioned, but has wholly refused so to do, and has refused in any way to be bound by the said deed, or anything done thereby or in pursuance thereof, or to consent thereto; and the interests of the said John Collingwood in the said several firms, in which he was a partner as aforesaid, and in the assets thereof, have not been assigned to the said trustee, or in any way, as a security for the defendants; and the said John Collingwood has always kept and retained from the said trustee and the defendants all the stock, goods, merchandise, money, book and other debts, bills of lading, bills of exchange, books of account, vouchers, and securities, and all other property, credits, assets, estate, and effects of the said firm of John Collingwood & Co.; and the said trustee and the defendants have been altogether excluded from the possession and control thereof, and of assets of the said firm, to wit, to the amount of 40,000l. Demurrer, and joinder therein.

Watkin Williams, in support of the demurrer to the seventh plea.— Here all parties have executed the deed in question, except John Collingwood; and the other side say, that because Collingwood has not executed there is an end of the deed, for they say it was necessary that he should execute. But it is too late to state that, for the arrangement on that footing has gone on for a very long time; they have taken the benefit that they intended to take from it; all the property is assigned to A. Jennings, and he has received it all. They nevertheless say, "We are not bound by it, because Collingwood has not joined in the deed. We say that the plea, to be a good plea, ought to have shown that they had abstained from taking the benefit of the deed." [WILLES, J.-Does not the recital make it a condition prece dent to have the assignment?] It does not appear on this statement what was the amount of Collingwood's liability. [WILLIAMS, J.There is no remedy against Collingwood unless he executes; it is impossible that the deed can be enforced unless he executes.] There is none that I am aware of.

THE COURT at once gave

Judgment for the defendant.

AN INDEX

то

THE PRINCIPAL MATTERS.

(The additional cases in this volume are indexed in [ ].)

the new lights without at the same time obstructing the old ones. The plaintiff thereupon stopped up the new windows, and restored the old ones to their original state, and then required the defendant to remove the obstruction:

Held, per tot. Cur.,-upon the authority of Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83), and Hutchinson v. Copestake, 9 C. B. N. S. 863 (E. C. L. R. vol. 99),—that, inasmuch as the defendant could not obstruct the new lights, as he had a right to do, without at the same time obstructing the ancient lights, he was justified in the obstruction of all. Jones v. Tapling,

283

3. And Held by Byles, J., and Keating, J.,
that, the obstruction being lawful at the time
of its erection, the defendant was not bound
to remove it on the plaintiff's closing his new
Id.
and usurped lights.
4. Held, by Erle, C. J., and Williams, J., that
the continuance of the obstruction after the
cause for its erection had been withdrawn,
was an unlawful act.

Id. 5. Where the owner of the dominant tenement has exceeded the limits of the right which he has acquired to the access of light and air, by opening an additional window, leaving his ancient windows unaltered, he has not necessarily lost or suspended his admitted right but the opening of the additional window justifies the owner of the servient tenement in obstructing the ancient windows if the doing so is unavoidable in the exercise of his right to obstruct the new window. Binckes v. Pash, 324 6. The plaintiff and defendant occupied houses adjoining each other as tenants under leases both of which were granted by the same lessor on the same day, viz. the 18th of December, 1788, and both expiring at the same time. The defendant by building on his own premises obstructed a window in the house of the plaintiff, though the latter had had an uninterrupted enjoyment of light and air for more than twenty years:-Held, that the circumstance of the two houses being held under the same landlord, and for the same term, did not prevent the one tenant from acquiring an indefeasible right to light as against the other. Frewen v. Phillips, 449

ARBITRAMENT.

Conduct of the reference.

1. A. held a lease of mines of coal and ironstone, and carried on the business of smelting, adding to the iron ore produced from his own mines from 65 to 70 per cent. of ore which he bought elsewhere and smelted the whole into pig-iron which he sold in the market:-Held, that he was a trader within the meaning of the Bankrupt Act, 12 & 13 Vict. c. 106. Turner v. Hardcastle, 683

Act of Bankruptcy.

2. A trader, being pressed by a particular
creditor, who had issued an execution
against him, under which the sheriff had
seized, executed an assignment of all his
estate and effects for the benefit of his cre-
ditors, and in the presence of the party to
whom the assignment was made, gave it to
his attorney, in order that it might be used,
if circumstances should render it necessary, as
an act of bankruptcy, and caused notice to
be given to the execution-creditor and the
sheriff that "he had that day committed an
act of bankruptcy :-Held, that the deed
operated as a valid act of bankruptcy.
Turner v. Hardcastle,
Notice.]-Held also, that the general form
of notice was sufficient, without stating of
what the act of bankruptcy consisted. Id.
Whether the validity of the assignment as
an act of bankruptcy would have been de-
feated if it had been shown that the petition-
ing creditor was aware of the circumstances
under which the deed was executed,—quære?

3.

4.

683

Id.

5. An assignment by a trader of all his property and effects for a present, advance of part of their value is not necessarily an act of bankruptcy. Pennell v. Reynolds, 709 6. It is for the jury to say whether under the circumstances the effect of the assignment Id. is to defeat and delay creditors.

Rights of Assignees.

It is highly improper,-though not per se a ground for setting aside his award,—for an | 7. Jus tertii.]—A., a trader, purchased a plant arbitrator to employ the attorney of one of the parties to the reference (though his own attorney also), to assist him in framing the award. In re Underwood and The Bedford and Cambridge Railway Company, 442

ASSAULT.

Damages for,-Sec NEW TRIAL, 2.

and stock under an agreement to pay the purchase-money by instalments, a proper assignment to be executed when the whole of the instalments should have been duly paid, and the vendor having power, in case of default for fourteen days after notice in writing to pay the several instalments, to re-enter, and expel the purchaser, &c. De

fault having been made in payment of certain

CODICIL.

Form of declaring on.

901

instalments, but the vendor not having 4. The allegation in the declaration on a bill

availed himself of his power to resume possession in the manner provided by the agreement, and A., the vendee, having become bankrupt :-Held, that the assignees of A. were entitled to recover the whole value of the goods, in an action of trover against the wrongdoer. Turner v. Hardcastle,

BAILMENT.

See NEGLIGence.

BARON AND FEME.
See HUSBAND AND WIFE.

BASTARDY ORDER.
See HUSBAND and Wife, 5.
BELL RINGING.

683

To the annoyance of the Inmates of a House. The mere fact of a man being instructed to deliver papers at the house of a third person is no answer to a complaint against him under the 10 & 11 Vict. c. 89, s. 28, charging him with having "wilfully and wantonly" disturbed the party and his family by violently knocking and ringing at the door at an unreasonable hour of the night. Clarke, app., Hoggins, resp., 545

BILLS OF EXCHANGE. Cancellation of adhesive Stamp on foreign Bill. 1. It is the duty of the party who receives a foreign bil in England to see that the adhesive stamp is cancelled pursuant to the Stamp Act, 17 & 18 Vict. c. 83, s. 5, under pain of disability to make the instrument available for any purpose. Pooley v. Brown,

566

of exchange in the form given by the Common Law Procedure Act, 1852, that the bill is "now overdue," is not a traversable allegation, but part of the description of the in5. Where, therefore, the action was commenced strument declared on. Hinton v. Duff, 724 on the 11th of June, and the bill only arrived at maturity on that day:-Held, that the plaintiff failed to sustain his declaration, and that his right to recover was properly put in issue by "non acceptavit." Id.

BILLS OF LADING.

Rights and Liabilities of Endorsee of. Under the Bills of Lading Act, 18 & 19 Vict. c. 111, the "rights and liabilities" of the consignee or endorsee under the bill of lading pass from him by endorsement over to a third party. Smurthwaite v. Wilkins, 842

BRICK-EARTH.

See ENCLOSURE.

BURNLEY IMPROVEMENT ACT.
Construction of.

By the 158th section of the Burnley Improvement Act, 1854 (17 Vict. c. lxvii.), it is enacted, that, if any person shall build, erect, or place any building, erection, or thing within fifteen feet of the centre of the bed of the stream of the Brun, he shall be summoned before justices, who may order the removal of the obstruction, and impose a penalty on the offender. In 1857, a flood washed away the bed of the river, and, in 1859, the respondent, who had mills or works adjoining, and was owner of the land. on both sides of the stream, restored the bed to its original level by laying large stones across, side by side, without any cement or other fastening:

2. The plaintiff in April, 1860, purchased of the defendant, without recourse, a bill purporting to be drawn by A. in Brussels upon B. in London. Through the default of both parties, the adhesive stamp was not cancelled at the time of the transfer, pursuant to the 17 & 18 Vict. c. 83, s. 5. In April, 1861, B. became bankrupt, and proof of the bill against his estate was rejected in consequence of the neglect to cancel the stamp, and the name of A. turned out to have been forged. The plaintiff then called upon the defendant to return him the price he paid Under Common Law Procedure Act, 1860,―See

for the bill, as upon a failure of considera

tion :

Held, that this was not a "building, erection, or thing," within the 158th section, and therefore that the justices were justified in declining to convict. Colbran, app., Barnes, resp., 246

CERTIFICATE.

COSTS, 6, 7.

CHARTER-PARTY.

Construction of,-See SHIPPING, 1.

CHATTEL.

See NEGLIGENCE, Reversionary Interest.

CODICIL.

See WILL, 2, 3.