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Sir J. Romilly, M.R., that he was justified in instituting a suit asking to be discharged from the trusts, and offering to account, inasmuch, as although he was desirous of retiring, from private circumstances, he would not have been justified in simply retiring and getting his co-trustee, in whom he had no confidence, to appoint a new trustee. The trustee was also allowed his costs. His Honour, however, said, as in this case the desire of the trustee to retire arose out of private circumstances, and not out of the administration of the trust, that if on the application of the trustee to be discharged, his cestui que trust had said You must pay the costs of the appointment of the new trustees, which would have been the mere costs of an indorsement on a deed, and he had refused to do that, he should not have supported the plaintiff in instituting a suit, by giving him the costs thereby occasioned.
II.-POINTS DETERMINED IN THE COURTS OF
By ALEXANDER PULLING, Esq., Barrister-at-Law.
1. Agent--Revocation of Authority of-Authority coupled with an Interest. 2. Bankrupt--Assignment of Estate and Effects for Benefit of Creditors-Execution of Power to seize future Effects. 3. Bill of Exchange-What Words constitute a Bill of Exchange or a Promissory Note. 4. Bill of Exchange-Proof of Payment by Acceptor. 5. Carrier-Packed Parcels—Inclosures — Refusal to Carry-Damages Charge for Small Parcels. 6. Covenant to put in Repair and to Repair-What runs with the Land Covenant to yield up in Repair- Mutual Conditions-PleadingHow to aver Breach of Covenant to Repair according to Custom of Country, 7. County Court-Appeal-Absence of Evidence to justify the Verdict. 8. Defamation-No Action lies against a Man for a Statement made on
These two numbers, containing the cases in Easter and Trinity Term, 1852, have only just appeared.
Oath in a Court of Justice. 9. Devise-Stat. 7 Wm. 4 & 1 Vict. c. 26, s. 26– When Leasehold Estates will pass under a General Devise of Realty. 10. Ejectment—Common Law Procedure Act, 1852–Right of Party to come in and Defend. 11. Equitable Defence-Mortgage-CovenantPlea on Equitable Grounds-Replication on Equitable Grounds—Account in Equity. 12. Equitable Replication-Common Law Procedure Act, Power of Court of Common Law to give Relief on Matters affecting written Agreement without the Agreement being reformed. 13. Evidence-Parol Evidence to supply Omission of Date in Written Contract. 14. Habeas Corpus by Husband to regain Custody of Wife. 15. Information-Joinder of Counts--Arrest of Judgment. 16. Joint-Stock Company–Right of Subscribers to Shares to have Certificates—Executing Deed of Settlement. 17. Libel-Secondary Evidence-Preliminary Question of Fact. 18. Mandamus to East-India Company to pay Salary of a Military Officer. 19. Practice-Common Law Procedure Act, 1854-Pleading-Equitable Defence - Mistake in drawing up Contract in Foreign Language. 20. Practice-Certificate for Special Jury Meaning of the Term "immediately” in the 6 Geo. 4, c. 50. 21. Practice-Common Law Procedure Act, 1854 Garnishment-Costs. 22. Practice-Debt above 201. reduced below 201. by Payment after Action-Judgment—Execution-Ca. sa. for the whole Amount-Irregularity. 23. Railway Company– Right of, to exclude Vehicles from their Station-yard. 24. Stamp-'What sufficient Evidence to raise a Presumption that an Instrument, not produced, was duly stamped, so as to let in Secondary Evidence of its Contents. 25. Statutory Privilege to interfere with Property, first_making Satisfaction-Continuance of Privilege after Expiration of the Power, as limited by Statute, to make the Satisfaction. 26. Vendor and Purchaser—Measure of Damages where the Vendor fails (without fraud) to make a good Title.
1. SIMPSON V. LAMB. 17 Com. B. 603. Agent, Revocation of Authority of-Authority coupled with an Interest.
The defendant employed the plaintiff, a clerical agent, to offer an advowson for sale, upon an understanding that, in the event of a sale being effected through the plaintiff's agency, the latter should receive a commission of 5l. per cent. upon the amount of the purchase-money. The defendant afterwards, without communicating with the plaintiff, sold the living himself. In an action charging a wrongful revocation of the authority, the Court of Common Pleas held that, in the absence of evidence of expense or liability incurred by the plaintiff, he was not entitled to recover anything.
Quære, whether the wrongful revocation of the authority to sell was put in issue by “not guilty”?
2. CARR V. ACRAMAN. 11 Exch. 566. Bankrupt - Assignment of Estate and Effects for Benefit of Creditors
Execution of Power to seize future Effects. In October, 1852, England, a trader, assigned to the plaintiff all his household furniture and effects then on his premises, as a security for money lent, with a power, in default of payment, to seize and take possession of the property thereby assigned, and all other goods, chattels, and effects which might be found on the premises. In January, 1855, England assigned all his estate and effects to trustees, for the benefit of the creditors. In the following February the plaintiff seized the goods, &c., and in March a fiat in bankruptcy issued against England, the act of bankruptcy being the above assignment of his estate and effects to trustees. In an action by the plaintiff against the assignees for selling the goods so seized by him, the Court of Exchequer held, that though the assignment by England of his estate and effects to trustees was void as against creditors, yet it operated to transfer to the assignees the property not included in the assignment to the plaintiff, and so defeated his title, which would otherwise have been valid by the seizure.
3. LLOYD V. OLIVER. 18 Q. B. 471.
Promissory Note. An instrument was drawn in the following form "Two months after date I promise to pay Mr. T. R. Lloyd, or order, 991. 158. H. Oliver." Underneath was written, on the left hand of the instrument, “ I. E. Oliver” (defendant). Across it the defendant wrote, “ Accepted, payable S. and Co., bankers, London. E. Oliver."
The Court of Queen's Bench held, that the instrument might be sued upon as a bill of exchange drawn by H. Oliver upon, and accepted by, defendant. Lord Campbell, C.J., intimated that such an instrument would be good as a bill of exchange, as against the drawer, even before acceptance; and Mr. Justice Crompton observed that equivocal instruments of this kind, possessing the character both of promissory notes and bills of exchange, may be treated as either.
4. BELL v. BUCKLEY. 11 Exch. 631.
Bill of Exchange- Proof of Payment by Acceptor. J. Thornley kept an account at the National and Provincial Bank at Liverpool, who discounted for him a bill for 351., drawn by him upon, and accepted by, the defendant. The day before the bill became due, Thornley went to the bank, who held another bill of his for 3701., due that day, and requested the manager to "retire” the two bills by discounting two others of similar amounts. The manager consented, and Thornley gave him a bill for 3651., purporting to be accepted by the defendant, to “retire” the bill of that amount. The bank discounted the second bill for 3651., and placed the proceeds to the credit of Thornley, minus the discount, and they got back from their London agent the first bill for 3651., with the acceptance cancelled. Several thousand pounds had been subsequently paid by Thornley into the bank. It afterwards turned out that the acceptance of the second bill for 3651. was forged by Thoraley. In an action by the bank against the defendant, as acceptor of the first bill, the Court of Exchequer held that the facts did not support a plea of payment of the bill by Thornley.
5. CROUCH V. GREAT NORTHERN RAILWAY COMPANY.
11 Exch. 742. Carrier-Packed Parcels—Inclosures-Refusal to Carry-Damages..
Charge for Small Parcels. In this case, where the right of railway companies to make extra charges for the carriage of packed parcels came in question, the Court of Exchequer held that a railway company cannot legally charge a greater sum for the carriage of a package containing several parcels belonging to different persons, than for a package containing several parcels all belonging to one person. The defendants having refused to carry, at the ordinary rate, packed parcels tendered by the plaintiff, a carrier, whereby he was obliged to send them by a more circuitous route and at a greater expense, the Court held that he was not entitled to recover damages for an alleged loss of business.
The fourteenth section of the Great Northern Railway Company's Act (13 & 14 Vict. c. 61) provides that the company may charge for the carriage of parcels not exceeding five hundredweight, any sum they may think fit. Mr. Baron Alderson intimated that the Act must mean “such reasonable charges as they think fit."
6. MARTYN V. CLUE. 17 Com. B. 661. Covenant to put in Repair and to Repair- What runs with the Land
Covenant to yield up in Repair-Mutual Conditions—Pleading-How to aver Breach of Corenant to Repair according to Custom of Country.
Declaration in covenant by lessor against assignee of lessee set forth a covenant by lessee, for himself, his heirs, executors, administrators, and assigns, that he and they would take the premises from, &c., for fourteen years, and would pay the rent; and that lessee, his executors and administrators, would, at his
VOL. I. NO. II.
and their own cost, repair, and put into tenantable repair, the demised premises, he, the lessee, having been already paid by lessor 4001., the valued amount of the then present dilapidations, exclusive of rough timber, but not on the stem, which was to be allowed by lessor, his heirs and assigns, on the demised premises ; and that, after the premises should have been put into such repair, lessee, his executors, administrators, and assigns, would, at his and their proper cost, from time to time repair, and keep in tenantable repair, the demised premises, being allowed rough timber, but not on the stem, upon the demised premises; the timber to be fetched and carried at the expense of lessee, his executors, administrators, and assigns: and the said premises so repaired and kept together, with the possession of the said premises, should yield up to lessor at the expiration of the said term; and should not cross-crop the land, nor commit any waste, &c.; but should cultivate the land in good husbandlike manner, and according to the custom of the country. The count then averred entry of the lessee, and assignment by him to defendant, who entered, and was possessed until the expiration of the term.
Breach—That although lessor, from the time of making the lease till the assignment, was ready and willing at all times to provide for lessee, and, from the assignment till the expiration of the term, was ready and willing to provide for defendant and lessee, on the demised premises, sufficient rough timber, not on the stem, to enable them to repair, and put into tenantable repair, the said premises ; and although lessee did not, before the assignment, or at any time, repair, or put into repair, the said premises, yet defendant did not, after the said assignment, repair, or put into repair, the said premises, nor yield up the same well repaired at the expiration of the term; but suffered them to be ruinous, &c., for want of repair; and so left them at the expiration of the term. Also that defendant, after the assignment, cross-cropped the land, and did waste, and used and cultivated the land in a bad and unhusbandlike manner, and not according to the custom of the country.
Defendant pleaded, among other pleas, as to suffering the premises to be ruinous, and out of repair, and so leaving them, that lessor did not at any time, from the assignment till the expiration of the term, provide on the premises sufficient rough timber, not on the stem, to enable defendant to repair, nor any rough timber whatever; and he demurred specially to the declaration. Plaintiff demurred to the plea.
Held, that the declaration was good; for,-1. The covenant to put in repair ran with the land, and