at same time. Held, that one of the partners could not renew the lease in his own name without communicating with his partner, who was entitled to participate in the subsequent profits. Per Justice Clerk (Patton). "It appears to me perfectly plain that a partner, and especially a managing partner, who goes to the landlord, and, behind the back of his partner, obtains a new lease of the partnership premises, is not entitled to retain the profits of that lease for himself. It follows, as the natural result of the plainest principles of equity applied to such a case, that a partner so acting must communicate the benefit of the lease so obtained to the co-partner, the interests of which he was bound to have attended to. The effect of refusing the remedy would be that a valuable interest in the co-partnery that of good will-would be destroyed, and a private benefit secured by an act grossly wrong in itself." No. 4. 9th Dec., 1868.-Watson v. Wilson.-41 Jurist, 124. OBLIGATION-REAL BURDEN. A DISPOSITION was granted of part of an estate binding the disponee to a certain style of building, and which obligation the disponer bound himself to insert in all the dispositions of other portions of the same estate. The disponee built according to the plan, and now applied to prevent the disponer disposing of other portions of the estate without imposing the same burden on the disponees. Held, the dispensee had right to enforce the obligation. Per Lord Neaves "If an owner in making a feuing arrangement, inserts in his conveyances a clause like this, the object of which is to secure the respectability of the neighbourhood, he is clearly bound by it. The feuar must be held to have accepted the conveyance and built his house on the faith of the superior's obligation, and he has therefore a jus quæsitum in the condition, and is entitled to say that the superior shall not violate it. It is conceivable, however, that cases may arise in which the enforcement of his right by the feuar might be ruinous and oppressive, as not being calculated to protect any legitimate interest on his part, and where accordingly this Court, under its equitable powers, might be induced to relax or modify the superior's obligation. For example, it may, at some time or other, be most expedient for all concerned that a church, or other public edifice, should be erected on some part of this considerable estate, or that some part of the ground should be permanently left vacant." No. 5. 5 Jan., 1869.-Clark v. Clark.-41 Jurist, 198, BILL-BANKRUPTCY. A BANKRUPT obtained his discharge on a composition under the Sequestration Statute. His brother ranked on a bill and concurred in the discharge. Afterwards the bankrupt, of his own will, granted his brother a bill for the original debt. The acceptor disputed its validity as granted without value and as a preference. The Court, on the authority of the law as laid down by Lord Mansfield, in Hawks v. Saunders (1 Cowp. 290), held the bill good. Per Lord Benholme "In one sense it is true that the debt had been extinguished by the bankrupt's discharge; for it then ceased to be legally exigible. And there still remained, after the discharge, a moral obligation incumbent on the suspender, and that obligation will be recognised by law if it has been recognised and acted on by the debtor in it." No. 6. 12 Jan., 1869.-Drummond v. Winter.-41 Jurist, 203. LEASE-ACCIDENTAL FIRE. A LANDLORD let a shop for five years; but in consequence of an accidental fire, the tenant could not get possession until a fortnight after the term. Held, that the tenant was entitled to abandon the lease. The authority referred to was 3 July, 1815, Walker v. Bayne, House of Lords, 3 Dow, 233. No. 7. 14 Jan., 1869-Paul and Thain v. Royal Bank of BANKER-RETENTION. Held, that bankers were not entitled to retain cash deposited on open account to meet a current bill discounted by them, no special agreement being alleged, or statement that the customer was vergeus ad inopiam. Per Lord Ormidale-"It is established as a general rule that in ordinary circumstances, such as occur in the present case, a party is not entitled to withhold payment of a debt presently due by him in security of an acknowledged debt that possibly may become due to him at some future time. I am of opinion that the bank had at the date no right to retain the balance due by them in the deposit account, or to refuse payment of the cheque for that balance." 66 No. 8. 19 Jan., 1869.-Strickland & Co. v. Nalson and CHARTER-PARTY-RE-EXCHANGE. A VESSEL was chartered by the plaintiffs from the defenders to proceed to two foreign ports. At the first port the crew mutinied and were discharged. The captain agreed with the agents for the charterers to deviate from the charter-party, and the latter agreed to advance money to send on the passengers and cargo to the second port. The captain drew bills on the owners for the advances as necessary disbursements." The owners refused to honour the bills, and an action being brought thereon-Held, 1st, that the deviation from the charter-party not being necessary for the safety of the ship, was ultra vires of the captain, and the expenses, therefore, not recoverable; and, 2nd, that the owners were not liable for re-exchange, the captain having exceeded his authority in granting bills. Per Lord Barcaple "It is well settled law that, except in special cases, the captain alone has power to act for the owners as to the disposal of the ship, and that in order to authorise him to deviate from the voyage agreed on in the charter-party, there must be a case of necessity. A prospect of advantage will not justify such a proceeding. There must be an over-ruling necessity, arising either from it being impossible to carry out the original voyage, or from the certainty of great loss accruing to the owners in the event of the voyage being persisted in." "The claim of re-exchange is an unusual one in our Courts, and I know of no case in which effect has been given to it in our Courts. At the same time it is a well-known claim among merchants, which is recognised by the Courts in England, and to which we must give effect where it properly arises. It admittedly arises at the instance of an indorsee against an indorsor upon a being dishonoured. It has been decided, however, that there is no claim of this kind against acceptors on refusal to accept for this reason, that supposing the drawees declined to accept without good ground, the claim of the payees against them could only be for the amount of the bills which they were bound to accept and pay and legal interest, any claim for re-exchange being against the drawers, who alone guaranteed that the bills would be honoured." bill No. 9. 20 Jan., 1869.-Cameron v. Morrison-41 Jurist, 223. BILL-WHEN ISSUED. A BILL was sent by two acceptors to the drawer with the sum in figures at the upper corner-the words, "four months after date the names and addresses of the acceptors and their signatures. The drawer filled up the remainder of the bill and dated it. Summary diligence was sought to be suspended because issued without a date. The Court repelled the objection, and held the bill was not issued until filled up by the drawer. Per Lord President (Inglis)"What is the issuing of a bill? It appears to me that it cannot take place before the bill has become a competent obligation; in other words, before it has become a bill and been issued as such." Per Lord Deas (dis.)—" The view I take of the matter is, that a bill is issued in the sense of the enactment when it passes, as this bill did, out of the hands of the obligor into the hands of the obligee-out of the hands of the debtor into the hands of the creditor, so that the grantor has no longer any power over it. At that time, undoubtedly, this bill was blank in the date." No. 10. 22 Jan., 1869.-City of Glasgow Union Railway RAILWAY COMPENSATION. A JURY awarded compensation for value of property taken, and for damage to remaining property by noise, &c. The Company sought to set aside the verdict as contrary to the Statute on several grounds, as to the mode the jury computed value. The Court assoilzied. Per Lord President (Inglis)—" In my opinion it makes no difference whether the injury to be ascertained arises directly from the execution of works on the portion of land taken, or less directly from the execution of the works on land taken from a neighbour." "I entirely agree with Lord Wulbury that the words 'injuriously affecting,' in this and other similar Statutes, do not mean wrongfully' or ' unlawfully,' but are used in a popular sense as meaning deterioration in value. We are not entitled to meddle with the verdict of the jury unless they have done something plainly illegal. It may be quite clear that the jury have not taken the best way of getting at the value of this property. But I cannot say that what they did was incompetent or illegal." No. 11. 26 Jan., 1869.-Paterson v. Taylor.-41 Jurist, 223. PROPERTY BOUNDARY. A PARTY obtained a conveyance of a piece of ground bounded by the central line of a proposed street, measuring forty feet in width. Held the proprietor was entitled to build up to that line. Per Lord President (Inglis)—"The question is whether there is a contract to leave space for a street of forty feet width between the respective properties." "To constitute such an obligation, where the right of property extends to the centre of the space proposed for a street, there must be an express stipulation in the titles." 66 No. 12. 26 Jan., 1869.-McKenzie v. City of Glasgow Union PROPERTY-SURRENDER. THE proprietors on one side of a street were all taken bound to leave a lane or passage of ten feet in breadth along the back of their properties." Held that one of their number was not entitled to erect an arch over the lane, to connect his property with another he had acquired on the opposite side. Per Lord Justice Clerk (Patton)"The law of servitude is inapplicable, the right being of the nature of a common interest in the lane; and if we look to what was the intention of the parties, I cannot but think that an open lane or narrow street, and not an arched passage, was intended. I may observe also that if one proprietor was entitled to arch over his portion, every proprietor would have the same right. The result would be that this lane would present a series of arches and open spaces, which would very much affect the use and enjoyment of the privilege intended to be secured." H. B. VOL. XXX.-NO. LIX. L 146 Notices of New Books. [*** It should be understood that Notices of New Works forwarded to us for Review, and which appear in this part of the Magazine, do not preclude our recurring to them at greater length, and in more elaborate form, in a subsequent Number, when their character and importance require it.] Systems of Land Tenure in various Countries. A Series of Essays published under the sanction of the Cobden Club. Second Edition. London: Macmillan & Co. 1870. THIS work appeared very opportunely-at the very time when legislators, publicists, and literary men were all turning their thoughts to the extraordinary position of the Irish Land Question; and when the Government was making up its mind to settle that great question for one generation at least. If there was a subject on which the British public was, two years since, specially ignorant, it was that very land question. The apparent paradox involved in the statement that the laws affecting the land in England and Ireland being alike, the systems arising out of those laws were, and must continue, essentially different, was bewildering. Much light was thrown upon a dark topic by Mr. Gladstone's speech on the introduction of his great measure. It remained that the various land systems of Europe should be presented, for examination and comparison, in the present volume, which may be described as a series of essays which, while containing much legal and much statistical information, deal rather with the sociological and political aspects of the subject. The As the case of Ireland was, at the beginning of the present year, present to all men's thoughts, it was natural that the essay upon Ireland, by Dr. Longfield, should head the list. The "Nationalist" writers will gain little aid to their cause from this acute observer. He points out that the agricultural wealth of Ireland is rapidly increasing; that absenteeism is far less injurious than it was a century since, and is, in fact, diminishing; that homicide and outrage exist because they are natural or indigenous habits, and not because of agrarian, and, therefore, of removable, inciting causes. Ulster Tenant Right (to which the new Act imparts all the force of law) is "not capable of being exactly defined," and it "is not without its disadvantages." In reference to the "improvements " which have been said by many to be attributable to the industry and outlay of the tenantry, Dr. Longfield states that only a small fraction of the present value of the land is to be attributed to these alleged improvements by tenants. Unquestionably few persons living have enjoyed better opportunities of becoming acquainted with the details of this vexed. |