2. A. and B., merchants in Australia, mutually agreed that each should buy gold dust, each to have half the profit or to bear half the loss on the resale of the gold dust to be bought by the other. In pursuance of this agreement, A. bought 365 oz. and B. 728 oz. It was then agreed that each of them should consign his parcel to C. in London, for sale on the joint account, with instructions to C. to give A. and B. each credit in account for a moiety of the proceeds of each consign ment. In pursuance of this last-mentioned agreement, the gold dust so bought was consigned to C., B.'s 728 oz. being invoiced as consigned on the "joint account," and accompanied by a letter from B. (dated Feb. 2, 1852), instructing C. to place the net proceeds to the respective accounts of A. and B. in equal moieties. A. likewise consigned his 365 oz. to C., but omitted to send C. instructions to place a moiety of the net proceeds to the account of B. On the 15th of June, 1852, C. sent a letter to A. informing him that he would pass to his credit half the proceeds of the said gold dust, and thereby assented to obey the instructions he had received from B. On the 4th of February, 1852, B. wrote to C. as follows,-" I have no doubt A. has written that half the profits [net proceeds] of the 365 oz. of gold dust shipped to you is to go the credit of B., in the same way as half the profit of the 728 oz. is to go to his credit. If, however, he should not have done so, you will not pass the half profit of the 728 oz. to his credit." This letter of course was not received by C. at the time he wrote his letter of the 15th of June. B. became bankrupt, and C., having sold both parcels of the gold dust, gave B. credit for the whole of the proceeds of the 728 oz. and for a moiety of the proceeds of the 365 oz.-Held, that a plea setting out these facts was a good plea of equitable setoff in an action for money lent, brought by C. against A. Elkin v. Baker, 526 1. In an action for an alleged libel, the Court allowed the defendant to inspect and take fac-simile copies, "by photograph or otherwise," of the documents referred to in the declaration. Davey v. Pemberton, 628 Trial by Proviso. 2. A plaintiff is entitled to the same time for proceeding to trial after a rule made absolute for a new trial, as he had for proceeding to trial originally. 'Oakeley v. Ooddeen, 805 3. Consequently, where a rule had been made absolute for a new trial, and the plaintiff had gone down to try at the sittings after Michaelmas Term, but the jury, being unable to agree, were discharged from giving a verdict,-Held, that it was not competent to the defendant to take down the record for trial by proviso at the sittings after Hilary Term; the plaintiff not being in default. Id. Setting aside Proceedings. See MEMORANDA. PROVISO. Trial by,-See PRACTICE, 2, 3. PUBLIC COMPANY. Definition of a Shareholder. 783 1. The time within which by the 9th section of the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), a register of shareholders is to be made and sealed, is merely directory; and a register containing the several particulars required by the Act, and bona fide intended to be a register, may be 1. Mere proof of an accident having happened to a train does not cast upon the railway company the burthen of showing the real cause of the injury. Hammack v. White, 594 Motion for Injunction under Railway Traffic Act, 1854. 2. A railway Company permitted a carrier (who also acted as superintendent of their goods traffic) to hold himself out as their agent for the receipt of goods to be carried on their line, and his office as the receiving office of the Company; and goods were received by him at that place without requiring the senders to sign conditions which the Company required all other carriers who 1. brought goods to their stations to sign:Held, an undue preference, and the subject of an injunction under the 17 & 18 Vict. c. 31. In re Baxendale and the Bristol and Exeter Railway Company, 787 REGULA GENERALIS. As to special Cases, special Verdicts, and Bills of Exceptions. "It is ordered, that, from and after the first day of Easter Term next, inclusive, every special case, special verdict, and bill of exceptions, set down in any of the superior Courts of common law, shall be divided into paragraphs, which, as nearly as may be, shall [each] be confined to a distinct portion of the subject: and every paragraph shall be numbered consecutively: and that the masters, on taxation, do not allow the costs of drawing and copying any special case, special verdict, or bill of exceptions not in substance in compliance with this rule, without the special order of the Court." Reg. Gen. 477 REGISTRATION OF VOTERS. In a Chattel. The owner of a chattel, e. g., a barge, which is Construction of Charter-party. 850 By the terms of a charter-party, the plaintiff's ship (a steam-vessel) was to proceed to H., to be there ready to load by a given day, or so near thereunto as she might safely get, and there load from the factors of the merchant such quantity of oxen, sheep, and [or] other lawful produce which the merchant might find it convenient to ship, not exceeding what she could reasonably stow and carry over and above her tackle, &c., and, being so loaded, was to proceed therewith to London, and deliver the same on being paid freight a lump sum of 450%. Two working days were allowed for loading and discharging, and three days on demurrage. The cargo to be taken to and from alongside at the merchant's risk and expense. Arrived at H., the vessel went alongside the jetty, and received on board a number of barrels of hams and 300 head of livestock, for which the captain signed bills of lading. Being thus laden, the vessel was found to draw too much water to get over the bar, and the captain was consequently obliged to take out all the stock. He then proposed to the charterer's agent to stow on board so many of the cattle as would enable him to pass over the bar, and to remain outside and there take in the remainder at the charterer's expense and risk. The agent declined to accede to this, and refused to put any of the cattle again on board, unless the captain would take all. Being unable to come to terms, the captain proceeded on his voyage with only the hams on board : Held, that, under these circumstances, the owners were not entitled either to the stipulated freight or to damages for the refusal to ship the cargo; for, that, although the captain was not obliged to go within the bar at all, yet, having chosen to do so, and hav-| ing received the cargo on board, and signed bills of lading, he was bound to find his way to his destination. The General Steam Navigation Company v. Slipper, 493 Freight. 2. Goods were put on board a ship consigned for Calcutta, at 398. per ton, "payable in London :"-Held, that it was for the jury to say from the surrounding circumstances whether the contract was a contract for "freight" contingent on the ship's arrival at her destination, or for a sum payable on the receipt of the goods on board her. Lidgett v. Perrin, 362 And see BILLS OF LADING. [Part Owners. that he would share any loss or liability he might thereby incur, accepted a bill at three months for the accommodation of C. At the maturity of the bill, C. being unable to meet it, it was agreed between the holders and A. and C. (without the knowledge of B.) that another bill should be drawn for the amount, in substitution of the former acceptance. A. having been obliged to pay the second bill, sued B. on his indemnity: --Held, that B's liability on his undertaking was not discharged by the renewal of the bill,-the parties not standing in the position of creditor and principal and surety. Way v. Hearn, [TITHES. Modus. 774 3. A. and B. were joint owners of a ship; A. By a private Act of Parliament, passed in 1762, working the ship, defraying all the expenses, and taking the uncontrolled management of her, and paying himself by taking two thirds of the gross earnings; B. taking the remaining one third as his portion :-Held, that the result of these facts was, that A. was a hirer of the share of B., and not the servant or agent of B., so as to render B. liable in an action of tort for damages caused by the negligence of A. Bernard v. Aaron and Sharpley, SHOP. See MARKET, 1. SPECIFICATION. See LETTERS PATENT. STAMP. See BILLS OF EXCHANGE, 1, 2. 889] STATUTE. Constructive Repeal of a former inconsistent Statute. By the Croydon Improvement Act, 10 G. 4, c. lxxiii., a penalty of 2007. is imposed upon any gas or other company for suffering any impure matter to flow into any stream, &c., to be sued for by any common informer. By the 21st section of the Gasworks Clauses Act, 1847 (10 & 11 Vict. c. 15), a like penalty is imposed for the same offence,-such penalty (by s. 22) "to be recovered by the person into whose water such substance shall be conveyed, or whose water shall be fouled by any such act :" Held, that, the latter provision was pro tanto a repeal of the former. Parry v. The Croydon Commercial Gas and Coke Company, 579 Construction of,-see Gas Companies. Discharge of, by Time given to the Principal. A., at the request of B., and on his promise for carrying into effect an agreement between the landowner and rector for the commutation of tithes on certain lands in the parish of W., in was declared that certain rents therein specified should be vested in the rector, in lieu of and as full compensation for all tithes of corn, grain, hay, wool, lamb, and all other tithes whatsoever, except as after mentioned, arising from all or any of the lands in the said parish, save and except marriage, churching, and burial fees, "provided that nothing in the Act should prejudice the right of the said rector, or his successors, to any marriage, churching, or burial fees, nor the right of tithes and customary stocking" in certain specified lands, "the modus in the Groves and Ancient Closes adjoining to the town, and all other petty and personal tithes not herein mentioned and relinquished, all which the said rector reserves, and they are hereby reserved to him and his successors in full right and in as ample manner as they have always been enjoyed." The Assistant Tithe Commissioner having decided that the said lands, called "the Ancient Closes," were not exempt from tithes,-Held, on motion for a prohibition, that the tithes of "the Ancient Closes" were not commuted or extinguished by the private Act of 1762, and therefore the jurisdiction of the Commissioners was not taken away by section 90 of the Tithe Commutation Act, 6 & 7 W. 4, c. 71. Semble-that, even if the tithes of wool and lamb were not included in the modus reserved to the rector, and were, therefore, extinguished by the Act of 1762, such partial extinguishment of tithes arising out of the lands would not satisfy section 90, so as to deprive the Commissioners of jurisdiction. Re Wintringham Tithes, 879] TRADING. See BANKRUPT, 1. TROVER. See CONVERSION. VESTRY. See NEGLIGENCE, 6, 7. WATCH RATE. In boroughs, under 2 & 3 Vict. c. 28, and 3 & 4 Vict. c. 28. By the 92d section of the Municipal Corporation Act, 5 & 6 W. 4, c. 76, the council of the borough were authorized to impose a watch-rate on all property in the borough, situate within 200 yards of any street or continuous line of houses. By the 2 & 3 Vict. c. 28, s. 1, the council are authorized, if they think fit, to cause the whole of the borough to be watched, and to order that the whole borough shall be assessed to a watch-rate. Such an order having been made by the council of the borough of M. :-Held, that all property within the said borough, though situate more than 200 yards from any street or continuous line of houses, was liable to be rated; and that there was nothing in the subsequent Act of 3 & 4 Vict. c. 28, to limit that liability. The Great Western Railway Co., app., Maidenhead (Town Council), resp., 653 WHITSTABLE FISHERY. See CROWN GRANT. WILFUL ANNOYANCE. See BELL-RINGING. C. B. N. S., VOL. XI.-35 INDEX то THE REGISTRATION CASES. ABODE. Place of,-see NOTICE OF OBJECTION, 1, 2. ADDRESS or OBJECTOR. See NOTICE OF OBJECTION, 3. APPEAL. Notice of Intention to Prosecute. The notice (under s. 62 of the 6 & 7 Vict. c. 18) APPOINTMENT FOR LIFE. BELL-RINGER. CANTERBURY CATHEDRAL. Bell-Ringers,-See QUALIFICATION, 4. Lay-Clerks, See QUALIFICATION, 4, 6. Six Preachers of,-See QUALIFICATION, 3. Of Intention to Prosecute Appeal,-See APPEAL. (916) |
