528 Analytical Digest of Cases: Common Law Courts. on being paid freight at 37. 18s. per ton, the freight to be paid on unloading and right delivery of the cargo, one third in cash, on arrival at port of destination, and the remainder by approved acceptances at three months, or cash equal thereto, &c. And it was further agreed, that, in case the charterers' agents should be unable to furnish a cargo of guano at the ports or places therein provided, they should have power to send the vessel to any other safe port or ports, place or places, for the purpose of obtaining a cargo of guano in the manner aforesaid, or of other goods, &c., in which case they were to pay for such service as hire for the said vessel, after the rate of 15s. 6d. per ton per month, such pay or hire to commence from the day of the vessel's clearing outwards at the Custom-House, London, and to terminate upon the vessel's return to her port of delivery, as thereinbefore provided for, and the discharge of the cargo. If the freighters' agents intended so to employ the vessel, they were to give the master written notice of such their intention, on production whereof, the freighters engaged to pay the owner, in cash on account, three months' pay for the hire of the vessel, and the balance to be paid on the vessel's return as aforesaid. CONSIDERATION. See Guarantee. CONTRACT. Construction of.-A. sells goods to B., to be paid for partly in cash, and the residue by bills at intervals of three months each: The payment of the money and the delivery of the bills do not constitute a condition, so as to entitle A. upon non-payment of the money and non-delivery of the bill, to sue as for goods sold and delivered, without waiting the expiration of the credit. Nor can such action be maintained for the amount of the stipulated cash payment. A.'s remedy is, by special action on the express contract. Paul v. Dod, 2 C. B. 800. CONTRACT OF SALE, Made by party as agent, he being the principal.--Where the plaintiff made a written contract for the sale of goods, in which he described himself as the agent of A., and the buyer accepted and paid the price of a portion of the goods, and had then notice that the plaintiff was himself the real principal in the transaction, and not the agent of A.: Held, that the plaintiff might sue in his own name for the non-acceptance of and non-payment 15 M. & W. 359. for the residue of the goods. Rayner v. Grote, CORPORATION. on the management of the fishery. In 1763, the corporation was re-incorporated by charter, under the old name, and the charter ratified, confirmed, and restored to it all fisheries, &c. The charterers instructed their agent on the south-west coast of Africa that the ship should proceed according to his instructions, and that in case she should not find a cargo, she should Merger of franchise.-A corporation, which proceed where he deemed it likely to procure had an immemorial right to the oyster fishing one. The vessel sailed, pursuant to the char- in a navigable river, to be managed by certain terers' directions, to an island on the south-functionaries and courts of the corporation, bewest coast of Africa, where the agent met her, came, in 1740, by the ouster of several of its and informed the captain that there was no members, unable to continue itself, or to carry guano to be had there, and that he must procure a cargo in Saldanha Bay, (another place on the same coast,) and must proceed to the Cape for a license to load there. The vessel accordingly sailed for the Cape, but being there required to enter into an engagement to sign and hand over bills of lading for the cargo as a security for the charges of the license, the captain refused to do so unless the agent would make the freight payable according to the time employed, instead of according to the weight of the cargo; and the latter accordingly gave the captain notice that he engaged him upon time, according to the latter clause of the charter-party: Held, that, under such circumstances, this clause had come into operation, and that the time freight was recoverable. The vessel, having loaded a cargo of guano at Saldanha Bay, proceeded therewith to England, and, under the charterers' instructions, went to Southampton to discharge her cargo. The charterers wrote to the captain there, stating that, without prejudice to the charter-party, or any dispute connected with the vessel, their wishes were, that it should be landed and warehoused in the Southampton docks in bulk, which was accordingly done: Held, that upon such landing of the cargo, the balance of the freight became payable. Fenwick v. Boyd, 15 M. & W. 632. Held, that there having been no actual dissolution, the fishery had never come to the crown, and would therefore be in the corporation as it existed under the new charter. Quære, Whether if the fishery had come to the crown, it could (after Magna Charta) have been re-granted by charter. Mayor of Colchester v. Brooke, 7 Q. B. 339. Cases cited in the judgment: Rex v. Passmore, 3 T. R. 199; Rex v. Mayor of London, 1 Show. 274, 280. ELECTOR. Liability of returning officer for refusing vote. -In case against a returning officer, for refusing to admit the plaintiff's vote at an election of a borough member, the first count-after stating the writ and precept for the election-alleged, that the plaintiff was a burgess, that his name was on the register of voters, that he tendered his vote for one of the candidates, and answered in the affirmative the questions authorized by the 6 & 7 Vict. c. 18, s. 81, to be put by the returning officer, and was ready and offered to take the oath prescribed by s. 82; but that the defendant, being returning officer, wrongfully, fraudulently, and wilfully intending Analytical Digest of Cases: Common Law Courts. 529 to injure the plaintiff, and to hinder and dis- s. 82,) might have had the effect of preventing appoint him of his privilege of and in the pre- the plaintiff from exercising his right of voting, mises, refused to permit the plaintiff to give his and, if so, that the action would be maintainvote, or allow the same to be entered and re-able, the act of the defendant being wrongful, corded, and a burgess was elected, the plaintiff and having caused a particular damage to the being so excluded from giving his vote. To plaintiff. Held, also, that the words subsethis count, the defendant pleaded, that the quent to the per quod amounted to an averplaintiff was not a burgess of the borough duly ment of matter of fact, and were not mere qualified or entitled to vote in or at the election matter of legal inference from the preceding altherein mentioned: Held, that the plea was bad legations. Pryce v. Belcher, 3 C. B. 58. for ambiguity. Cases cited in the judgment: Blofield v. Payne, 4 B.& Ad. 410; Taylor v. Henniker, 12 Ad. & E. 488; The Tonbridge Dippers' case, Weller v. Baker, 2 Wills. 422; Colson and Perry's case, 2 Roll. Rep. 379; Mary's case, 8 Co. Rep. 113. The 2nd count-after stating the writ and precept, and that the plaintiff was a burgess and on the register-proceeded to allege that he tendered his vote for one of the candidates; that it was the duty of the defendant, so being such returning officer, to allow such vote to be entered and recorded, and cast up in the pollbooks; that he was requested so to do; but that he, contriving and wrongfully and fradulently and wilfully and maliciously intending to injure and damnify the plaintiff, and to hinder and disappoint, and deprive him of the benefit of his right and privilege aforesaid, instead of entering and recording the plaintiff's vote in the poll-books, to the end and intent aforesaid, refused so to receive the same, or to admit and allow the same to be so entered and recorded, to the end and intent aforesaid; but, on the contrary thereof, caused the vote of the plaintiff to be entered in the column of votes tendered in the poll-books, and at the close of the poll refused to reckon, include, and cast up, and did not reckon, &c., the plaintiff's vote among the votes given for that candidate; whereby the plaintiff was deprived of the benefit of his right to vote at that election. Semble, that the count disclosed a primá facie cause of action. See notes on this case, p. 498, ante. EXTENT. Sci. fa.-Commission to find debts.— Inquisition.-Upon a sci. fa. to recover a sum of money found due to the Crown for duties of Customs by an inquisition taken under a commission to find debts, it appeared on the record, that the commission, which was tested the 21st Feb., and returnable the 15th April, 1843, authorised the commissioners to inquire "whether J. D. is now indebted in any and what sums of money," &c. The inquisition was taken and returned on the 1st March, 1843, and the jury found that S. D. was, on the day of taking that inquisition, indebted to the Crown in 2627. 10s., for the duty of Customs on silk imported by him between the 8th and 14th day of Feb., 1841, and that the said sum, and every part thereof, still remained due and unpaid: Held, that this finding was good in form, and was warranted by the commission. 1843: Held, that its having issued before the GUARANTEE. Dean v. 1. Construction of.— Sufficiency of consideration. — A declaration by A. against B., upon a guarantee stated, that in consideration of advances already made by A., and that A. would from time to time make advances to C., B. promised to pay A. the last-mentioned advances. The consideration on the face of the guarantee was, "in consideration of advances made and to be made by A., or by any other persons of whom A.'s firm might from time to time consist:" Held, a variance. The 3rd count, after stating the writ and precept, that the plaintiff was a burgess and on the register, and that he tendered his vote, alleged that it was the duty of the defendant, as returning officer, to enter the vote on the pollbooks without entering into or allowing a scrutiny; but that the defendant, knowing the premises, but contriving and wrongfully, fraudulently, wilfully, and maliciously, intending to injure and damnify the plaintiff, and to delay him in the exercise of his privilege of voting, and deprive him of the benefit of his said privilege, wrongfully ordered and allowed a scrutiny to be held with regard to the plaintiff's vote, and his right and qualification to vote, and wrongfully took upon himself to adjudge The guarantee was addressed, in the alternaand determine, at and after such scrutiny so tive, "To Messrs. A. & Co., or the person or ordered and allowed, that the plaintiff was not persons for the time being, carrying on the busientitled to give, and had no qualification ness of that firm: Held, no variance, no enabling him to give, his vote at that election; change in the firm having in fact taken place, whereby the plaintiff was delayed, hindered, or, that if there were any variance, such variand obstructed in the exercise of his said pri- ance would be amendable under the 3 & 4 W. vilege of voting, and a burgess was elected for 4, c. 42, s. 23. that parliament, the plaintiff's vote being so hindered and obstructed, &c.: Held, that this count also disclosed a prima facie cause of action, inasmuch as it was possible that the delay arising from the holding of a scrutiny, (which is prohibited by the 6 & 7 Vict. c. 18, The breach assigned in the declaration was, that the defendant had not guaranteed the payment or paid. The defendant pleaded, inter alia, that he had guaranteed the payment: Held, that the words in the breach were not to be understood as used disjunctively, and that proof 530 Analytical Digest of Cases: Common Law Courts. that the defendant had executed the instrument of guarantee, did not entitle him to a verdict on that issue. Boyd v. Moyle, 2 C. & R. 644. 66 2. Consideration.-Held, that no consideration appeared on the following guarantee :1843, June 28, Mr. Price; I will see you paid the 57. or 10l. worth of leather, on the 6th of December, for Thomas Lewis, shoemaker." Price v. Richardson, 15 M. & W. . 539. Case cited in the judgment: Wain v. Warlters, 5 East, 10. Per Patteson, Coleridge, and Williams, Js. INSOLVENT DEBTOR. To an action by an indorsee against the acceptor of a bill, the latter pleaded, that before the commencement of the suit, a petition for his protection from process was duly, and according to the statute, presented by him to the Court of Bankruptcy; that afterwards, and before action brought, a final order for protection 3. Construction of.-Liability of guarantor and distribution was made in the matter of the for due payment of bill of exchange.-Declaration in assumpsit on a guarantee stated, that petition, by J. E., a commissioner of the said the defendant promised the plaintiffs to court, duly authorized in that behalf; and that guarantee to them the due acceptance and pay-tracted before the date of filing the petition: ment of two bills of exchange drawn by K.; Held, on special demurrer, that this was a suffibeing the amount of an invoice of the plaintiffs' cient plea in bar, within the 5 & 6 Vict. c. 116, of goods shipped by them; and that, as the defendant had not then heard from K. if the s. 10. Cook v. Henson, 1 C. B. 908. invoice had been found correct, the defendant was to have" the reserve customary under such circumstances." The terms of the guarantee were, that the defendants guaranteed the due acceptance and payment of the bills, &c., and it proceeded thus:-"As we have not heard from Mr. K., if your invoice has been found correct, we claim this reserve, as customary under such circumstances." It appeared that the invoice was in fact correct: Held, that there was no variance. Ackermann v. Ehreusperger, 16 M. & W. 99. 3. Interest.-A party who guarantees the due payment of a bill of exchange by the acceptor, is liable for interest upon it, if it be not paid when due. Ackermann v. Ehrensperger, 16 M. & W. 99. HACKNEY CARRIAGES Liability of proprietor of. In assumpsit against a cab proprietor, the declaration stated, that the plaintiff hired the vehicle, and that, in consideration of the premises, and that the plaintiff, with his luggage, would become a passenger, and of certain reward, the defendant promised the plaintiff to carry and convey him and his luggage safely and securely from, &c., to, &c, and alleged a loss of part of the luggage by the negligence of the defendant's servant: Held, that the declaration was sufficient to charge the defendant for a breach of his implied duty to use an ordinary degree of care; the words "safely and securely" not necessarily importing a more extended liability. Ross v. Hill, 2 C. B. 877. Cases cited in the judgment: Harris v. Costar, the causes of action in the declaration were con INSURANCE. Constructive total loss.-A policy was effected upon a ship, valued at 17,500l., from China to Madras, whilst there, and back to China. The ship had originally been purchased by the owners for 11,000l., and was, at the time of effecting the policy, together with her stores, seamen's wages, and other matters not consti tuting her permanent value, of the value to the plaintiffs, of the sum mentioned in the policy. During the voyage, the ship was damaged by tent to proceed on the voyage, unless repaired the perils of the sea, so as to become incompeat an expense of not less than 10,5007, and being so repaired, she would have been worth a sum not exceeding 9,000l., which was her marketable value at the time of effecting the policy, and immediately before the damage. Upon a special verdict finding the above facts, and also finding that a prudent owner, being uninsured, would not have repaired the vessel, and that she was duly abandoned: Held, in affirmance of the judgment of the court below, that the underwriters were liable as for a total loss. Irving v. Manning, 2 C. B. 784. Case cited in the judgment: Allen v. Sugrue, 8 -- JOINT-STOCK BANK. In Partner. Liability of quoad 3rd parties dealing with the firm.-A. B. C. and D., who carried on business under the firm of G. P. and Co., in 1840 opened an account with a banking company, established under 7 Geo. 4, c. 46; 1 & 2 Vict. c. 96, and 5 & 6 Vict. c. 85. 1842, A. retired from the firm, but this fact was not advertised in the London Gazette, nor was any alteration made in the pass-book: Held, that the mere fact of D., one of the firm of G. P. and Co., being also a director of the banking company (but having as such no share in the management of or interference in the banking accounts), did not amount to notice,actual or constructive,-to the bank, of the dissolution, so as to discharge A. in respect of a debt subsequently accruing,-a banking company so established, differing in this respect Analytical Digest of Cases: Common Law Courts. from an ordinary trading partnership. Powles v. Page, 3 C. B. 16. Cases cited in the judgment: Porthouse v. Parker, 1 Campb. 82; Jacaud v. French, 12 East, 317; Steward v. Dunn 12 M. & W. 664; 1 Dowl. & L. 642, 649. LOTTERY. To debt for money had and received, the defendant pleaded, that a certain race was about to be run, and that an illegal game called a lottery, not authorized by law or act of parliament, was set up by the defendant for certain subscribers of 17. each, (in the whole amounting to 155,) to be paid to the defendant under regulations in substance as follows:-That the subscriber whose name should be drawn out of a box next after the name of the horse (drawn from another box,) which horse should be placed first in the race, should be entitled to receive from the defendant 100%. The plea then alleged that the subscriptions were paid by the plaintiff and others to the defendant, and that the plaintiff, under the regulations, became entitled to the 100l.: Held, that the plea disclosed a transaction within the prohibition of the Lottery Acts, 10 & 11 W. 3, c. 27, and 42 G. 3, c. 119. Allport v. Nutt, 1 C. B. 974. Held, also, that, supposing the transaction to be a bet, it was an illegal bet. Allport v. Nutt, 1 C. B. 974. Held, also, that the plea was good in form, as setting up the illegality of consideration by statute. Allport v. Nutt, 1 C. B. 974. See Thorpe v. Coleman, 1 C. B. 990. MARRIAGE. Assumpsit. The declaration alleged a promise to marry "within a reasonable time after the defendant should be thereunto requested by the plaintiff;" and without averring a request, stated for breach that the defendant had wrongfully married another person. Plea, that the defendant was never requested to marry the plaintiff: Held, on special demurrer, that the declaration was good, as showing a breach of contract by the defendant, which dispensed with any necessity for alleging a request; and that the plea was consequently bad. Short v. Stone, 3 D. & L. 580. Case cited in the judgment: Harrison v. Cage and ux., 1 Ld. Raym. 386; 1 Salk. 24; 12 Mod. 214. MASTER AND SERVANT. 531 he should be employed and work as a crown- Case cited in the judgment: Hitchcock v. Co- MONEY HAD AND RECEIVED. 1. S., the owner of a farm, orally employed defendant to sell it for him. Defendant, without naming the seller, agreed, by written memorandum, to sell the farm to the plaintiff for 2,700l., and gave instructions to an attorney to prepare a contract of sale by S. to plaintiff. Plaintiff paid defendant 1007. deposit in part of the purchase-money, and afterwards signed the contract of sale by S. to himself, by which contract he agreed to pay down immediately on its execution 100l. as a deposit, for which S. undertook to pay interest at 4 per cent. till the completion of the purchase. The contract was afterwards rescinded for want of title in the seller, S. Defendant, before he had notice of the rescinding, paid S. 501., and retained the other 501., though without the consent of S., under an agreement by S. to give him one-half of any amount above 2,600/., which defendant might get for the farm: Held, that plaintiff could not recover any part of the 100l. from defendant. Hurley v. Baker, 16 M. & W. 26. 2. Legacy-Priority of contract.-The defendant, as the agent of an executor, wrote to a legatee informing him of his legacy and its amount, and stating that he would remit it in any way the legatee might suggest. He transacted the business necessary for the transfer of the legacy, and remitted to the legatee the amount of the legacy, minus a sum deducted for expenses: Held, that the defendant was not liable to the legatee, in an action for money had and received, from the sum so deducted. Barlow v. Browne, 16 M. & W. 126. And see Assumpsit, 1. PARTNER. 1. Liability of quoad 3rd parties dealing Agreement in restraint of trade.-The plain- with the firm.-One who takes a share of the tiffs agreed in writing with L., that he should profits as such, of a trading concern, thereby serve them for seven years as a crown-glass becomes a partner as to 3rd persons, on the maker; that he should not during that term ground of those profits forming a portion of work for any other person without their the fund upon which creditors have a right to license; that they might deduct from his rely for payment. Yet the receipt of a per wages any fine he might incur for breach of centage upon the gross amount of sales made their rules; that during any depression of to certain customers, by the person who recomtrade he should be paid a moiety of his wages; mended such customers, does not constitute that if he should be sick or lame, the plaintiffs him a partner as against 3rd persons. should be at liberty to employ any other person A., who was concerned in a colliery, in the in his stead, without paying him any wages; year 1830, built and stocked a general shop in that the plaintiffs should pay him, so long as the neighbourhood, for the purpose of supply 532 Analytical Digest of Cases: Common Law Courts. upon A. and the other person inside leave the coach, and the passenger outside, not then being able to obtain the luggage, goes on to the end of the journey. Held, that B. was not entitled to recover from A. the sum agreed to be paid for the seats, nor was he entitled to recover anything under the indebitatus count for work actually performed. Pickford v. Lacon, 34 L. O. 181. ing goods to the workpeople, placing B. there one outside. When the coach had proceeded to conduct the business; A. receiving for his about half the journey, B. takes up more pasown use 7 per cent. upon the amount of sengers than he was licensed to carry, wherethe gross sales made to the miners; and B. taking all the rest of the profits of the concern, from whatever source derived. A.'s name appeared over the shop-door, and in the excise licences; and down to the year 1834, all the goods supplied to the shop were purchased and paid for by or in the name of A. In that year it was agreed between A. and B., that the latter should thenceforward buy all goods that were required for the shop, and that the former should receive 5 per cent. upon the amount of sales to the miners. After this new arrange- 1. Liquidated damages. By articles of ment had been come to, B., who had several agreement between A. and B., after reciting other shops, opened an account with a bank at that A. had invented a parasol upon a new Holywell, and, on the failure of the bank in principle, it was agreed that B. should be per1839, there was a balance due to the bankers mitted to manufacture it; and that, if B. on that account, exceeding 2,000l. There was no evidence to show that credit was in fact given to A. by the bank, or that they were aware that his name had been placed over the shop-door, or that they supposed him to be a partner at the time the debt was contracted. In an action by the assignees of the bankers against A. and B., to recover the balance, the jury having negatived the existence of an actual partnership between A. and B., or that A. had, with his own permission, been held out as a partner, the court refused to disturb the verdict. Pott v, Eyton, 3 C, B. 32. Cases cited in the judgment: Dry v. Boswell, 1 PATENT. should, pending the agreement, manufacture parasols without making the stipulated payments, or do anything whatever to prejudice A.'s right and title to the invention, he should pay A. 1007. as liquidated damages. In case for breach of this agreement, the declaration alleged that A. was the proprietor of a new or original design for an article of manufacture, having reference to a purpose of utility, so far as the design was and is for the shape or configuration of such article, that is to say, of a new and original design for the shape and configuration of a parasol, for the purpose of opening and closing the same with one hand, and which design had not before or at the time of registration been published; that such design was duly registered accord2. Surety.-Release.—Where, on dissolution ing to the 6 & 7 Vict., c. 65; and that B. of a partnership, two of the partners agree, in published a circular stating 4.'s design to be consideration of a sum of money secured by an infringement of a patent previously granted the bond of a third partner, to pay all the debts, and to release him from all liability as the time of the registration, the inventor or B. pleaded that A. was not, before or at to the joint concern, the third partner becomes, as between the other two partners and himself, proprietor of a new or original design for a surety only in respect of those debts. Rodgers published before or at the time of the said the shape or configuration of a parasol, not v. Maw, 4 D. & L. 66. registration, modo et formá. Held, that this plea did not raise the question-whether or not the alleged invention of A. was the proper subject of a certificate of registration under the stats. 5 & 6 Vict. c. 100, and 6 & 7 Vict., c. 65. Millingen v. Picken, 1 C. B. 799. 3. The plaintiff and the defendant were partners. They dissolved the partnership, the plaintiff agreeing to take all the debts of the firm upon himself, and to release the defendant from liability, and the defendant giving him a bond for a certain sum payable by instalments. The plaintiff failed to pay a debt due from the firm, whereupon the creditors sued the defendant, and obtained judgment, and issued a fi. fa. under which the sheriffs seized and sold the defendant's goods, and out of the proceeds paid the debt. Semble, that, in an action on the bond, the defendant was entitled to set-off, as money paid, the sum so paid by the sheriff. Rodgers v. Maw, 15 M. & W. 444. And see Joint-Stock Bank. PASSENGER. Liability of coach proprietors.-A. contracts with B., a coach proprietor, for three seats in a coach from Y. to L., namely, two inside and to C. 2. Trust for foreigner.-Argumentative denial that grantor was true and first inventor.— Sufficiency of specification.-A patent granted to a British subject, in his own name, for an the subject of a state in amity with this couninvention communicated to him by a foreigner, try, is not void, although such patent be in truth taken out, and held by the grantee, in trust for such foreigner. In such case, the grantee is the true and first inventor within this realm, within the stat. 21 Jac. c. 3. In case for an alleged infringement of a patent so granted, the defendant pleaded that, by an agreement made in France, between the original inventor and the King of the French, the former, for the considerations therein men |