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good law in this country, though doubted in America.-(Story on Agency, note 3 to sect. 159.)
15. CORK AND YOUGHAL RAILWAY COMPANY V. PATTERSON. 18 Com. B. 414.
Railway Company-Power of Directors to Amalgamate with another Company.
In 1845, the Cork and Waterford Railway Company and the Cork, Middleton, and Youghal Railway Company, proposing to construct railways which would necessarily interfere with each other, their respective subscribers' agreements empowered the respective managing committees or directors "to demise or sell the undertaking, or any part thereof, or to amalgamate the same, or any part thereof, with any other railway or railways," &c. In pursuance of the powers thus conferred upon them, the directors of the two companies agreed to amalgamate and to form one united company, and this agreement was carried into effect by resolutions made at board meetings of the respective committees, and by a deed executed by a competent number of the directors of each company. The Court of Common Pleas held, that the power to amalgamate was vested in the two Boards, and that those powers were well and effectually exercised; and that the company so united or amalgamated might maintain an action for calls against a shareholder of either company who had executed the parliamentary contract and subscribers' agreement.
16. BATTISHILL V. REID. 18 Com. B. 696. Right of Way-Unity of Possession-Injury to Reversion-Measure of Damages.
This was an action brought by the plaintiff, a reversioner, for disturbance of certain alleged rights of way, and also for removal of the eaves from his house, and the erection of a building with eaves and a gutter overhanging his wall.
The plaintiff and his lessees had enjoyed a certain way as of right, and without interruption, from 1800 to 1855 when the action was brought, but from 1813 to 1853 the same tenant had been in possession of both premises. The learned judge, at the trial, ruled as to the right of way that the unity of possession during a part of the time prevented the application of the statute 2 & 3 Wm. 4, c. 71, and as to the injury from the removal of the caves from his house, and the erection of a
building with eaves and a gutter overhanging his wall, the evidence tendered at the trial of diminution of the saleable value of the plaintiff's premises in consequence of the nuisance, was rejected; and it appearing that the cost of replacing the tiles which had been removed would not exceed 30s., and the defendant having paid 40s. into court on account thereof, the jury were directed to find for the defendant, if they thought the sum paid in was sufficient to cover the actual damages sustained by the plaintiff. The Court of Common Pleas held, that the evidence tendered was properly rejected, and the direction right; the true measure of damages in such a case being not the diminution in the saleable value, although the nuisance might be of a permanent character, but such damages as the jury might think sufficient to compel the defendant to abate the nuisance. The Court also held, that the enjoyment of an easement as of right for twenty (or forty) years next before the commencement of the suit, within the statute 2 & 3 Wm. 4, c. 71, means a continuous enjoyment as of right for twenty (or forty) years next before the commencement of the suit, of the easement as an easement, without interruption acquiesced in for a year and that such right will be defeated by unity of possession during all or part of the period of enjoyment, though such unity of possession has its inception after the completion of the twenty (or forty) years.
17. ROURKE V. MORT. 5 Ellis & Bl. 904.
Wager-Stat. 8 & 9 Vict. c. 109, s. 18-What is a Contract by way of Wager.
Plaintiff and defendant, while conversing as to some rags which plaintiff proposed to sell and defendant to purchase, disputed as to the price of a former lot of rags, plaintiff asserting the price to have been lower than defendant asserted it to have been. They agreed that the question should be referred to one Magee, a spirit-merchant, and that whichever party was wrong should pay Magee for a gallon of brandy; and that if plaintiff was right, the price of the lot now on sale should be 6s. per cwt., but if defendant was right, 38. Magce decided that plaintiff was right. Plaintiff sent the rags to defendant, but defendant refused to accept them at 6s., offering 58.
To an action for goods bargained and sold, defendant pleaded the facts specially (except as to the reference to Magee), averring that 6s. was higher, and 3s. lower, than the value of the rags bargained for, and justified the refusal to accept on the ground that the agreement was made by way of wager, and therefore within stat. 8 & 9 Vict. c. 109, s. 18.
The Court of Queen's Bench held that the plea was good, and was supported by the facts; and this, whether or not the fact of the agreement relating to the brandy was taken into consideration.
18. BLYTH V. BIRMINGHAM WATER-WORKS COMPANY.
Water Company-What amounts to Negligence.
This was an appeal from a decision of the County Court judge of Birmingham. The defendants, who were regulated by special Act of Parliament, had observed the directions of the Act in laying down their pipes; but their precautions proved insufficient against the effects of a very severe winter, and the plaintiff's house was injured by water escaping from the neck of the main. The jury in the County Court, under the judge's direction, gave a verdict for the plaintiff.
The Court of Exchequer gave judgment for the defendants, on the ground that they were guilty of no negligence, the exceedingly severe frost which caused the accident not being an event they were required to guard against.
Short Notes of New Books.
[*** All Law Books and works of interest to the Legal Profession, forwarded to the Editor of the LAW MAGAZINE AND LAW REVIEW, will henceforth be noticed-either shortly, or at length-in its pages.]
The New Law and Practice of Joint Stock Companies, with and without Limited Liability. By Edward W. Cox, Esq., Barristerat-Law. 2nd edition. London: Crockford. 1856.
THIS new edition of Mr. Cox's work on the Law affecting Joint Stock Companies was rendered necessary by the legislation respecting them of last session, and appears to us to be ably executed. Although not proposing to deal much with decided cases,-not one tithe whereof, indeed, could be noticed within the limits to which the learned writer has here restricted himself, this little volume does profess to exhibit, in intelligible language, the outlines of the law of partnership generally, and that which concerns incorporated and registered companies more particularly. To such as wish to acquire rapidly a knowledge of this important branch of our Law Merchant, we recommend a perusal of Mr. Cox's work; but whilst doing so, we cannot altogether go along with him in his strictures on the recent statute (19 & 20 Vict. c. 47), the provisions of which underwent so ample and searching an investigation in the House of Commons. The pros and cons, however, which might be urged respectively by its advocates or opponents are by this time familiar to our readers, and are far too numerous and weighty to be satisfactorily discussed, or even epitomized, in this place. One side of the question is strongly urged, and forcibly put forward in the work before us.
The Magisterial Formulist. By George C. Oke, Assistant Clerk to the Lord Mayor of London. Second Edition. London: Butterworths. 1856.
THIS "Collection of Forms and Precedents for Practical Use in all Cases out of Quarter-Sessions, and in Parochial Matters, by Magistrates, their Clerks, and Attorneys," is deservedly esteemed. It is complete and well arranged, and we rejoice to see that a new edition of it, which has for some time been demanded, has at length appeared.
A Treatise on the Principles of Equity. By John Sidney Smith, Esq., Barrister-at-Law. London: Maxwell, Sweet, and Stevens
& Norton. 1856.
MR. SIDNEY SMITH, author of the well-known "Practice of the Court of Chancery," has, in the volume now before us (to which we trust hereafter we may be able to accord more ample notice), sought to facilitate the acquisition by students of a knowledge of the elements of that system of law which is administered by Courts of Equity. The writer's style is peculiarly simple, and free from affectation, and his mode of treating the subject which he discusses, judicious and attractive. His aim, indeed, as explained by himself, has been to adapt his treatise to the requirements of the student, "by giving him an outline of the system in a concise and readable shape; and yet more than this, "to afford to the man in practice the means of ascertaining at a glance the present state of Equity Jurisprudence as altered by recent statutes, and the latest decisions of the Court." We think that the object thus intimated has throughout his work been conscientiously kept in view by its author. The result has been an accession of no inconsiderable value to our legal literature.
A Treatise on the Law of Mines and Minerals. By William Bainbridge, F.G.S., Barrister-at-Law. Second Edition. London: Butterworths. 1856.
WE are glad to see a new edition of this work, which has become an authority in relation to the Law of Mines and Minerals. Very numerous of late have been the decisions in Courts, as well of Law as of Equity, bearing upon the rights of owners of adjacent mineral strata, and the mode in which they may be worked. These decisions have been carefully noted up in the volume before us, and a very useful Glossary of mining terms has been inserted. We think that this volume will be serviceable to many without the pale of the Legal Profession; it will assuredly be so to lawyers.
Topics of Jurisprudence connected with Conditions of Freedom and Bondage. By John C. Hurd, Counsellor-at-Law. New York: Van Nostrand. 1856.
THIS essay did not reach us at such time as would allow of its examination in the current number of our Review; at present, therefore, we will merely say, that it evinces much thought and learning, and has a very peculiar interest-regard being had to the party warfare just now raging through the Union-for the jurist and the