798

INDEX.

C. P. D. VOL. I.

DISC

COVENANT TO REPAIR-continued..
COVENANT TO REPAIR-continued.
brick and iron work was done by the defendants' broken off on the 31st of December, no further
predecessors in title, under the superintendence proposal having been made by the defendants;
of the plaintiffs' engineer. The timber and wood- that the effect of the correspondence was only to
work, the superstructure, was done by the give the defendants a reasonable time for repair-
plaintiffs' engineer at the expense of the under- ing after that period; and that, inasmuch as the
takers, and with materials provided by them.- interval between the 31st of December and the
The structure was completed in 1864. In 1872 21st of April was a reasonable time for that pur-
certain repairs became necessary to the super- pose, the defendants were not entitled to relief:
structure of the bridge, which repairs were exe--Held, by the Court of Appeal (reversing the
cuted by the company, who claimed to be reim- decision of the Common Pleas), that the true
bursed their outlay in so doing by the defendants, construction of what had taken place was that
although the defendants had had no notice nor the notice to repair was suspended during the
any knowledge or means of ascertaining that the negotiations, that the negotiations were not
repairs were necessary :-Held, that the plaintiff's finally broken off on the 31st of December, and
were not entitled to recover the expenses so in- that the plaintiff by his conduct had misled the
curred. THE LONDON AND SOUTH WESTERN RAIL- defendants into supposing that the notice to re-
WAY COMPANY v. CYRIL FLOWER
pair was still suspended, and that he was not
2. Landlord and Tenant-Ejectment for a insisting on the breach of the covenant, and, con-
Forfeiture-Assignee of Reversion—Non-repair—sequently, that it would be inequitable to permit
Notice of the Assignment-32 Hen. 8, c. 34.] The him to take advantage of the forfeiture. HUGHES
assignee of the reversion of a lease may maintain v. THE METROPOLITAN RAILWAY COMPANY
ejectment for breach of a covenant to repair, with-
out giving the tenant notice of the assignment. CUSTOM OF TRADE-Foreigner
See DEMURRAGE.
SCALTOCK v. HARSTON
DAMAGES-Remoteness

-

-

77

106

3. Lease-Forfeiture for Non-repair·
Relief in Equity-Notice to repair, Suspension of
-Negotiation for Purchase of Premises-Tenant
misled by Landlord's Conduct.] Equity will
relieve a lessee against forfeiture for breach of a
covenant to repair when the landlord has by his
conduct misled the lessee into supposing that the
covenant would not be insisted on.-A lease of
certain premises contained a covenant to repair
upon six months' notice and a condition of re-
entry for breach. The defendants became sub-
lessees of the premises under a lease containing a
similar covenant. The premises being out of
repair, the plaintiff, who was the reversioner, gave
notice to the defendants on the 22nd of October,
1874, to repair within six months. The defend-
ants wrote to the plaintiff suggesting that he
should purchase their interest, and stating that
they should postpone the repairs until they heard
from him on the subject. Negotiations thereupon
took place with reference to a purchase of the de-
fendants' interest by the plaintiff, and finally the
plaintiff wrote on the 31st of December to the
defendants, stating that the price they asked
was out of all reason, having regard to the ex-
penditure which would be required to put the
premises into proper condition, and which the
defendants would have to bear under their cove-
nants, and requesting the defendants to reconsider
the question of price, and to make some modified
proposal. No further proposal was made by the
defendants, and though some further correspon-
dence took place with regard to the premises, the
plaintiff never intimated to the defendants that
he considered the negotiations at an end. On the
13th of April, 1875, the plaintiff wrote to the
defendants' lessor stating that the six months'
notice would expire on tho 21st. The defen-
dants thereupon caused the premises to be re-
paired, and the repairs were completed in June,
1875. The plaintiff brought an action of eject-
ment in respect of the premises, and recovered
judgment therein, and the defendants sought
relief against the forfeiture.-The Common Pleas
Division held that the negotiations were finally

[C. A. 120
654

92,511

a

See REMOTENESS OF DAMAGES. 1, 2.
Remoteness-Delay of train

-

See UNPUNCTUALITY OF TRAIN.
Remoteness-Telegraph message
See REMOTENESS OF DAMAGES.
DEBTORS ACT, 1869, s. 5

-

See ARREST OF DEBTOR. 1, 2.
DEFAMATION-Privilege-Witness

See PRIVILEGED COMMUNICATION.
DELIVERY ORDER- Estoppel

-

169, 229

See ESTOPPEL BY CONTRACT.
DEMURRAGE—Shipping — Charterparty, Con-
struction of-Arrival of Ship-Commencement of
Lay-Days-Local Custom-Foreigner.] Timber
was consigned, under a charterparty made at
Riga, to the Canada Duck in the port of Liver-
pool, a given number of days being allowed for
unloading there :-Held, that, by the general law,
the lay-days commenced from the time the ship
arrived in the dock; but that it was competent to
the consignee to shew, notwithstanding the plain-
tiff was a foreigner, that there was a custom in
the port of Liverpool, that, in the case of timber
ships, the lay-days commenced only from the
mooring of the vessel at the quay where by the
regulations of the dock she was alone allowed to
discharge. THE STEAMSHIP COMPANY "NORDEN"
v. DEMPSEY

う

ECCLESIASTICAL DILAPIDATIONS-Simony
See SIMONY.

[C. A. 638
EJECTMENT-Assignee of reversion-Notice 186
See COVENANT TO REPAIR.
Forfeiture-Equitable defence C. A. 120
See COVENANT TO REPAIR. 3.

ELECTION, MUNICIPAL-Nomination-paper

[596, 670
See ELECTION OF TOWN COUNCILLOR.
1, 2, 3.

ELECTION, PARLIAMENTARY.

See Cases collected under VOTE FOR
PARLIAMENT.

See ELECTION PETITION.
ELECTION OF TOWN COUNCILLOR-Municipal
Elections Act, 1875 (38 & 39 Vict. c. 40), 8. 1,
subs. 3-Nomination papers delivered by an Agent

Petition questioning Decision of Mayor-22 Vict.
c. 35, s. 8.] Under the Municipal Elections Act,
1875 (38 & 39 Vict. c. 40), s. 1, subs. 3, the nomi-
nation-paper must be delivered to the town-clerk
by the candidate himself, or by his proposer or
seconder personally, and not by an agent. And
the objection is one which is cognizable by the
mayor, whose decision allowing it may be ques
tioned on a petition against the return of the
successful candidate. MONKS v. JACKSON 683

2. Municipal Corporations Act (6 & 7
Wm. 4, c. 76), s. 142-Munisipal Elections Act,
18:5 (38 & 39 Vict. c. 40), s. 1, subss. 1, 2, 3, and
8. 13-Misnomer of Candidate in Nomination-
paper.] In a nomination-paper at an election for
town-councillors of a borough under the Muni-
cipal Elections Act, 1875, the name of a candi-
date, which was Robert Vicars Mather, was
inserted thus,-"Robert V. Mather :"-Held, not
such a statement of "the surname and other
names of the persons nominated" as to satisfy
the requirements of s. 1 of the Act and the form
given in the 2nd schedule; and that the in-
accuracy was not cured by s. 142 of 6 & 7 Wm. 4,
c. 76. MATHER v. BROWN

See SALE OF DISTRESS.
DISTRICT REGISTRY-Writ-Bills of Exchange
334
See WRIT UNDER BILLS OF EXCHANGE ACT.
DIVISIONAL COURT-Appeal - Judge-38 &
39 Vict. c. 77, s. 4.] An appeal can be heard by
the Court of Appeal, although one of the judges
then in the Court is a judge of the Division in
which the action is pending, if he has taken no
part in making the order appealed from. FISHER
v. THE VAL TRAVERS ASPHALTE COMPANY

[C. A. 259

ELECTION OF TOWN COUNCILLOR-continued.
Nov. 1. W., a candidate for one of the two
vacancies, duly delivered his nomination-paper at
the town-clerk's office on Friday, the 22nd of
October; but, inasmuch as one of the eight
burgesses had written one of his Christian names
with a contraction, "Fredk.," W., supposing that
to be a fatal objection, without notice and without
the knowledge of the town-clerk, got the paper
back from a clerk in the office and returned it on
the following day re-signed by the burgess. T.,
another candidate, delivered his nomination-paper
on Saturday, the 23rd. H. and P., two other
candidates who had duly delivered their nomina-
tion-papers on Friday, the 22nd, objected to the
allowance of the nomination-papers of W. and T.
The mayor (assuming to have authority to hear
it) disallowed the objection, and the result of the
poll was that W. and T. were declared duly
elected. H. and P. thereupon filed a petition
against this return, but did not claim to be seated.
-Upon a special case setting out the facts for the
opinion of the Court:-Held, 1. That the mayor
had no power to deal with the objection as to the
time of delivering the nomination-papers, and
that his decision might be questioned on peti-
tion.-2. That the nomination-paper of W. must
be taken to have been delivered on Friday, the
22nd, and was therefore in time, the taking it
away for an unnecessary alteration not being
done with intent to withdraw it.-3. That the
nomination-paper of T., though delivered in ac-
cordance with the terms of the town-clerk's notice,
was delivered too late.-4. That the notice pub-
lished by the town-clerk being so defective as to
be calculated in the opinion of the Court to mis-
lead the candidates and so prevent a fair election,
the whole proceeding must be declared void and
a new election ordered. HOWES v. TURNER 670
ELECTION PETITION Borough Election
Amendment of Petition by striking out Claim for
Seat.] This Court will not amend an election
petition by striking out, after the lapse of the
time limited by the Act for presenting it, that part
of the prayer of the petition which claims the
seat for the petitioner (an unsuccessful candi-
date) and the allegations applying to a scrutiny
which would be dependent thereon, inasmuch as
this would affect the rights of the constituency.
Practice of election committees in this respect
followed.-Semble, that it is competent to this
Court to amend an election petition at any time
by striking out allegations therein, where it is
satisfied that no injurious result, or a beneficial
one, will follow; or by adding matters discovered
after the filing of the petition. ALDRIDGE v.
HURST
410
ENFRANCHISEMENT-Copyhold - Compulsory
Enfranchisement-Death of Tenant before Confir-
mation of Award-Lord's Fine-4 & 5 Vict. c.
35; 15 & 16 Vict. c. 51; 21 & 22 Vict. c. 94.] A
copyhold tenant died after proceedings instituted
by him for a compulsory enfranchisement under
the Copyhold Act, 1858 (21 & 22 Vict. c. 94), and
before the confirmation of the award by the com-
missioners:—Held, that the lord was entitled to
have a new tenant on the roll and to a fine on his
admittance.-Held, also, that the proceedings did
not abate by the death of the first tenant. MYERS
v. HODGSON

609

C.P.

ESTO

[120

the f

445

tende

ESTOPPEL-Notice to repair-Suspension C.A.
See COVENANT TO REPAIR. 3.
Sale of goods-Delivery orders

See ESTOPPEL BY CONDUCT.

ESTOPPEL BY CONDUCT-Contract of Sale-
Unappropriated Goods-Undertaking to deliver to
Vendee's Order-Unpaid Vendor-Estoppel.] The
defendants sold to B. & Co. 100 tons of zinc (un-
appropriated) upon certain terms of payment,
giving them at the time of the contract four
several documents to the following effect:-" We
hereby undertake to deliver to your order indorsed
hereon twenty-five tons merchantable sheet zine
off your contract of this date." Upon the faith
of these documents, the plaintiffs bought of B. &
Co., and paid for, fifty tons of the zinc mentioned
in the contract. B. & Co. having failed, and the
contract price being unpaid, the defendants re-
fused to deliver the zinc:-Held, that the giving
of these delivery orders or "undertakings" did
not estop the defendants from setting up, as
against the vendees of B. & Co, their right, as
unpaid vendors, to withhold delivery. FARMELOE
v. BAIN-

445

2. Money received by Means of a forged
Indorsement-Negligence in the Custody or Trans-
mission of Securities by Post-Estoppel-Conver
sion.] Negligence in the custody of a draft or in
its transmission by post will not disentitle the
owner of it to recover the draft or its proceeds
from one who has wrongfully obtained possession
of it.-Negligence, to amount to an estoppel,
must be in the transaction itself, and be the proxi-
mate cause of leading the third party into mis-
take, and also must be the neglect of some duty
which is owing to such third party or to the general
public.-The plaintiffs, merchants at New York,
desiring to transmit 1000l. to W. & Co., of Brad-
ford, purchased of S. & Co. in New York, a draft
for that amount drawn by S. & Co. on Smith,
Payne, & Co., London, payable to the order of
the plaintiffs on demand. The plaintiffs indorsed
the draft specially to W. & Co. or order, and in
closed it in a letter addressed to them, which was
placed in a letter-box in their office to be posted
in the usual way. The letter was stolen by one
Hecht, a clerk in the employ of the plaintiffs,
who forged an indorsement of W. & Co., and pro-
cured the defendants, bankers in London, to pre-
sent the draft and obtain the money, which was
placed by them to the account of a person acting
in concert with Hecht, upon whose cheques the
money was almost immediately drawn out.-In
an action for money had and received, the de-
fendants, in order to shew that the negligence of
the plaintiffs in the custody and transmission of
the draft afforded facilities for the fraud, and so
estopped them from suing for the money, tendered
evidence that it was an usual and almost invari-
able practice amongst merchants sending large
remittances from abroad to send, besides the letter
containing the remittance, a letter of advice by
the same or the next mail. This evidence was
rejected, on the ground that the alleged negli-
gence was collateral only to the transaction
giving rise to the action:-Held, that the plain-
tiffs' right to the draft, and to sue for the pro-
ceeds thereof in the hands of the defendants as
money received to their use, was not affected by

ESTOPPEL BY CONDUCT-continued.

the felonious act of Hecht; and that the evidence
tendered was properly rejected. ARNOLD V. THE
CHEQUE BANK. THE SAME v. THE CITY BANK

Notice to repair-Suspension

See COVENANT TO REPAIR. 3.
EVIDENCE-Admission-Agent

See COMMISSION OF AGENT.
Negligence-Defective truck

FELLOW-SERVANT-Negligence

See EVIDENCE OF NEGLIGENCE.
EVIDENCE OF NEGLIGENCE-Railway Com-
pany-Defect in Truck-Foreign Truck-Duty to
examine.] The defendants, a railway company,
have a junction at Peterborough, at which they
receive from other lines a great number of trucks,
which they, being bound by law to give facilities
for through traffic, are compelled to forward with
dispatch to their destination. The defendants
when a foreign truck comes on their line, cause
it to undergo such a general examination as can
take place without causing an undue delay, that
is to say, the tires of the wheels are tapped with
a hammer, and the truck generally looked over
for defects.-A foreign truck, loaded with coal,
belonging to the B. Waggon Company, came on
to the defendants' line at Peterborough, and there
underwent the usual examination, when a defect
in one of the springs and a crack in the wood work
was discovered. The truck was shunted, upon
the discovery of the defects, in order that it might
be repaired by the waggon company to whom it
belonged. The defect in the spring, which was
the only pressing defect, was repaired, and the
truck was handed over to the defendants, and sent
on by them to its destination. On the way an
accident, by which the plaintiff was injured, hap-
pened through the existence of a crack in one of
the axles of the truck. It was stated in evidence
that by a minute examination of the truck the
crack in the axle might have been discovered.
The defect in the axle was entirely unconnected
with the defects previously discovered. The jury,
in answer to questions left them by the judge,
found that the crack in the axle might have been
discovered by a sufficiently minute examination;
but that the defendants were not bound to ex-
amine the truck minutely, so as to enable them
to see the crack. In answer, however, to a third
question left to them, viz. as to whether, although
it might not be the defendants' duty on the first
view of the truck to examine it minutely, it did
not become their duty to do so upon discovery
of the defects in the spring and woodwork, the
jury answered that it was their duty to require
from the waggon company some distinct assurance
that the truck had been thoroughly examined and
repaired-Held, reversing the decision of the
Court below, that on these findings the defendants
were entitled to a verdict; for the defendants
were not bound to do more in the way of examin-
ing the foreign truck on its arrival at Peter-
borough than they had done, and inasmuch as the
defects discovered on such examination were en-
tirely unconnected with the defect that caused
the accident, they were not responsible by reason
of their failing upon the discovery of such defects
to enter upon a more minute examination of the
truck, or to make any such inquiry of the waggon

-

-

227

246

161, 556

See NEGLIGENCE OF SERVANT. 1, 2.
FOREIGN ATTACHMENT-Mayor's Court-Fo-
from a corporation cannot be attached in the
reign Attachment -- Corporation.] A debt due
Mayor's Court of London by virtue of the custom
of foreign attachment, nor can there be a writ of
fieri facias against the goods of a corporation as
garnishees.-Semble, that a corporation cannot be
defendants in an action in the Mayor's Court.
THE LONDON JOINT STOCK BANK v. THE MAYOR
OF LONDON
1
FOREIGN JUDGMENT-Marine Insurance-Con-
structive total Loss-Judgment of foreign Tribunal
-Sale of Things insured by Order of foreign
Tribunal.] The presumption with regard to the
judgment of a foreign Court is that it is correct
according to the law of the country to which it
belongs, but when it was admitted by the parties
that the law of the foreign tribunal had not been
correctly declared by its judgment:-Held, that
such judgment was not binding on an English
court. The expenses which may be recovered by
the assured under the suing and labouring clause
in a policy of insurance free of particular average,
are confined to the expenses which are necessary
to avert a total loss, for which the insurer would
be liable.--A sale of the subject-matter of insur
ance ordered by a foreign tribunal within whose
jurisdiction it has been originally thrown by perils
insured against, does not amount to a constructive
total loss, where the sale is not due to perils in-
sured against, such perils having ceased to operate,
but is made for the purpose of repaying advances
incurred through the captain's breach of duty in
not transhipping the subject-matter of insurance
to its destination.-A cargo of rye, shipped on an
Austrian ship for carriage from Enos, a Turkish
port, to Schiedam, was insured by a policy war-
ranted free of particular average. The ship meet-
ing with stormy weather, a portion of the cargo
was damaged, and the ship had to put into the
port of La Rochelle. Proceedings were taken, at
the instance of the captain, in the Tribunal of
Commerce at that port, and, in consequence, the
cargo was landed and warehoused. It was neces-
sary to sell a portion of the cargo immediately,
which was accordingly done. On the 21st of
February the Court, on the petition of the cap-
tain, ordered a sale of the residue, and notice of
abandonment was given to the defendants as
insurers on the ground that, in the opinion of the
experts or surveyors, the rye could not be for-
warded to its destination.This notice the de-
fendants refused to accept; and on the 5th of
March the defendants, as insurers, summoned the
captain before the Tribunal of Commerce for the
purpose of having it decreed that there was no
occasion to sell the residue of the rye.-The Court

802

FOREIGN JUDGMENT-continued.

accordingly ordered the residue of the rye to be
surveyed, and the surveyors reported that it could
be re-shipped and conveyed to its destination.
This report was confirmed by the Court, and
notice of it given to the assured, together with
notice that any course pursued with the cargo
would be for their account and on their responsi-
bility. The rye, however, was not forwarded, and
remained until December warehoused at La
Rochelle, although the captain might have pro-
cured a ship to carry it on. The captain having
in the meantime procured advances to meet the
expenses caused by the interruption of the voyage,
was summoned, by the parties who had made the
advances, before the Tribunal of Commerce; and
on the 14th of September the Court decreed a
sale of the ship, and a statement of general and
particular average of the ship and cargo to be
drawn up, which was accordingly done. On the
21st of December the Tribunal of Commerce de-
creed the sale of the rest of the cargo, on the
ground that the weather was unfavourable for its
preservation. On the 25th of January the Tri-
bunal of Commerce decreed that the full amount
of the freight due upon the whole voyage was
chargeable upon the proceeds of such sale; and
an amended average statement, which proceeded
on this footing, was confirmed by the Court. If
the proportion of freight so payable was to be
added to the extra expenses incurred in respect of
the residue of the cargo so sold by reason of the
interruption of the voyage, including the extra
freight in respect of forwarding to the port of
destination, the amount would exceed the value of
the rye at the port of destination. It was ad-
mitted that neither the law of France or Austria
was in accordance with the decree of the 25th of
January, and if the proper proportion of freight
had been charged to the residue of cargo sold, the
value at the port of destination would have ex-
ceeded the expenses :-Ileld, that there was no
constructive total loss of the cargo; inasmuch as
the decree for the sale of the residue of the cargo
was not due to the perils insured against, but was
made for the purpose of paying advances incurred
through the captain's breach of duty in not for-
warding such rye to its destination; and the in-
surers were not concluded by the judgment of the
French Court from denying that there was no
total loss, because it was admitted that such judg-
ment was erroneous according to the law which it
professed to administer. MEYER v. RALLI
FORFEITURE—Breach of covenant-Notice of
assignment
106
Non-repair-Suspension of notice C. A. 120
See COVENANT TO REPAIR. 3.
FRANCHISE.

-

See COVENANT TO REPAIR.

2.

358

See Cases collected under VOTE FOR
PARLIAMENT.

FRAUD ON CREDITORS-Illegal Agreement·
Assignment of Debtor's Estate for the Benefit of
Creditors-Bankruptcy.] Declaration for breach
of agreement, whereby, in consideration that the
plaintiff would assign all his estate to the defend-
ants, two of his creditors, as trustees for the equal
benefit of all his creditors, and would disclose to
the defendants all his estate, the defendants

F

FRAUD ON CREDITORS-continued.
promised, upon the realization of his estate, to re-
turn and pay to the plaintiff 501.:-Held, ou
motion in arrest of judgment, that the declaration
was bad, inasmuch as the agreement therein set
forth, being made without the consent of the cre-
ditors, was illegal as a fraud on their rights.
BLACKLOCK v. DOBIE

265

FRAUDS, STATUTE OF-Sale of Timber-Inte
rest in Land-Actual Receipt of Part of Goods
sold-Statute of Frauds, 88. 4, 17.] A sale of
growing timber, to be taken away as soon as
possible by the purchaser, is not a contract or
sale of land, or any interest therein, within the
4th section of the Statute of Frauds. The de-
fendant by word of mouth purchased certain
growing trees for 261. of the plaintiff on the terms
that he, the defendant, should remove them as
soon as possible. The defendant accordingly cut
down some of the trees and agreed to sell the tops
and stumps to a third person. The plaintiff then
countermanded the sale, and prohibited the de-
fendant from cutting down the rest of the trees.
The defendant, however, cut down the remainder,
and carried the whole away :-Held, that the case
was within the 17th section of the Statute of
Frauds, and that before the sale was counter-
manded there was an acceptance and actual
receipt of part of the goods sold within that
section. MARSHALL v. GREEN

35

2.- Sale of Goods-Alteration of Contract,
or Arrangement as to Time or Mode of performing
it, made by Parol-Statute of Frauds (29 Car. 2,
c. 3), 8. 17.] On the 15th of June, 1874, the de-
fendant bought of the plaintiffs 100 tons of pig
iron, to be delivered, "25 tons at once, and 75 tons
in July next." By the end of July 75 tons in all
had been delivered. There was no evidence of
any request by the defendant to the plaintiffs be-
fore the end of July to delay the delivery of the
last 25 tons; but it was proved that in October
the defendant verbally requested the plaintiffs'
manager to deliver them, in consequence of which
they were forwarded in the course of the same
month to the defendant, but he declined to re-
ceive them.-In an action against the defendant
for refusing to accept the 25 tons, the defendant
pleaded, amongst other pleas, that the plaintiffs
were not ready and willing to deliver the iron
according to the contract:-Held, that, inasmuch
as the vendors were not shewn to have withheld
the delivery of the 25 tons in consequence of a
request by the vendee before the expiration of
the agreed time, viz. in July, the action was not
maintainable upon the original contract; and
that the subsequent conversation with the ven-
dors' manager could not be relied upon either as
a new contract or as an arrangement for an
altered time of delivery. PLEVINS. DOWNING
[220

3. Contract of Sale-29 Car. 2, c. 3, s. 17
-Signature to Contract in Broker's Book.] A
broker, acting for the plaintiff, made a contract for
the sale of goods to the defendant, sending a note
to each party, but signing only that which was
sent to the seller; he, however, entered the con-
tract in his book in which he signed both the
bought and the sold-note. The defendant kept
the note which was sent to him without objection