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ate and able judgment in the case of the Banda and Kirwee Booty. As Dean of the Arches Court, he had to pass many judgments upon matters connected with the ecclesiastical agitations in the Church of England during the last twenty years; among others, questions relating to the formation of the altar, and to the use of altar lights at St. Barnabas', came before Dr. Lushington for consideration. He had also to investigate the charges made against Dr. Williams and the Rev. Mr. Wilson, in connection with their contributions to Essays and Reviews.
Dr. Lushington, when upwards of fourscore and ten years, made the journey from Ockham Park to Oxford to record his vote for Dean Stanley at the recent election of select preacher for the University; but on his return he was seized with an attack of bronchitis, from which apparently he never thoroughly recovered. He married in 1821 Sarah Grace, daughter of the late Thomas William Carr, Esq., of Frognal, Middlesex, by whom he has left issue. His eldest son, Mr. Edward Harbord Lushington, was for many years in the Bengal Civil Service; of his other sons, Mr. Vernon Lushington, Q.C., is Recorder of Richmond, and Mr. Godfrey Lushington is a barrister of the Inner Temple.
The Law Times, to which we are indebted for most of the facts in the preceding notice, gives him much of the credit due for the great improvements made in the practice of the Admiralty Court during the last twenty years, which have made the system of procedure in that Court the probable "basis of any new system of pleading which may be introduced by the proposed reforms." The same Journal also corrects the common misapprehension that his opinion as to the principles on which prize cases should be decided was very different from that entertained by Lord Stowell, and that he considered that neutrals should be treated more leniently than they had been by that great judge. That change was caused by the opinion of the Judicial Committee of the Privy Council presided over by Lord Kingsdown, to which, although it reversed his judgments, he gave unqualified submission. (See The Franziska, Spinks Pr. Ca. 111: The Ostzee, ib. 174: The Leucade, ib. 217.)
JAMES BUCHANAN, Esq., S.S.C. (1850), died at Portobello, Jan. 25th. Mr. Buchanan came to Edinburgh from Perthshire more than forty years ago; and commenced business for himself in 1841. He was very highly respected by his professional brethren, and by his diligent attention to the interests of his clients, he had secured a large amount of confidence as a professional man, and he will be remembered by those who knew him best, as a shrewd, sagacious and upright man of business. His kindliness of manner and courtesy of demeanour made him a great favourite with all who knew him, either in professional or private life. He leaves a widow and one child.
THOMAS LANDALE, Esq. of Templehall, S.S.C. (1829), was run
over by a tramway car, at Edinburgh, and killed, Feb. 5. Mr Landale was a native of Anstruther in Fife, and was in his 72d year. He was a well-known and highly respected citizen of Edinburgh. For many years he was in the habit of taking a prominent part in the deliberations of the Convention of Royal Burghs; and he had long been a familiar figure among the lay members of the General Assembly.
WILLIAM M'CORQUODALE, Esq., Writer, Dunfermline, died at Grange Road, Edinburgh, Feb. 7, aged 30.
Notes of English, American, and Colonial Cases.
PRINCIPAL AND AGENT-Payment to Agent.-It is well settled that a debtor is authorized to pay to an agent any sum which is due upon a security which has been intrusted to the agent by the holder, for the purpose of collecting any part of it; as where the agent has been authorized to receive the interest only, but receives the principal. Indeed the authorities go to the extent of holding a payment valid, made to any agent who is merely intrusted with the possession of the security, without express authority to receive or collect any part of it. The ostensible authority attributed to a party to whom is intrusted an instrument to secure the payment of money, is to receive payment according to its terms. Per Talcott, J.-The principal is, as to third persons, not having any notice of a limitation, bound by the ostensible authority of the agent, and cannot avail himself of secret limitations upon the authority and repudiate the agency, where innocent third persons have, in good faith, acted upon the ostensible authority conferred by the principal. The plaintiff held a note for 800 dollars and interest, payable to her own order, at the office of W., made by the defendant. When it fell due, the plaintiff, without indorsing the note, handed it to M. to present for payment. M. accordingly presented the note, at the place of payment, together with a forged order upon W., purporting to be signed by the plaintiff, requesting W. to pay her money to M. The principal and interest was therefore paid by W., and the note delivered up and cancelled, and M. absconded with the money. Held, that the payment was clearly valid, both upon authority and principle, and discharged the note. The presentation, by an agent, of a spurious order from the payee, upon the maker of a note, for the amount due upon the note, the maker supposing the order to be genuine, cannot have the effect of invalidating a payment otherwise justified. Although an indorsement is required to render a note negotiable, it is not necessary to the validity of a payment. A delivery of the note to the maker is all that is required, upon the payment thereof, either to the payee or his agent.-Doubleday v. Cress, 60 Barbour, N. Y. Rep.
RAILWAY--Contract between Railroad Company and Passenger-Right of Conductor to put off a Passenger refusing to pay his fare-Agency. M. on the 1st of May, purchased a through ticket from N. Y. to B. over the P. W. & B. R. R., and on that day took the through train. The conductor of the train took up the ticket and 66 M. a gave conductor's check," with the words "good for this day and train only," and with the numerals 5 and 1, showing the month and day, punched out of the "check." M. desiring to leave the train at a way station inquired of some one at the window of the company's ticket office at the station, if the "check" would take him to B. on another train and day, and was told that it was good till taken up." On the 6th of May, M. entered another train going to B., and, being called upon for his ticket, offered the "check." The conductor refused to receive the "check," and M. having re
fused to pay fare, the train was stopped at a point intermediate between two stations, and, by direction of the conductor, M. left the train. Held, 1. that M. had no right to leave the train at the way-station, and afterward to enter another train and proceed to his original point of destination without procuring another ticket, or paying his fare. 2. That on the refusal of M. to pay his fare, the conductor had the right to put him off the train, using no more force than was necessary to effect his removal, and was under no obligation to put him off at a station. 3. That even if the person by whom M. was told that the "check" was good until taken up was an agent of the company, the presumption is, that a ticket agent at a way-station has no authority to change or modify contracts between the company and through passengers, and the onus of rebutting this presumption rested on M.—M'Clure v. Philadelphia, Wilmington and Baltimore Railway Co., 34 Maryland Rep.
CORPORATION-Company--Trade-Mark.-Where the name of a manufacturing corporation designates the origin and ownership of goods manufactured by it, it will be protected in the use of its name to the same extent, and upon the same principle that individuals will be protected in the use of trade-marks. Corporations, in the exercise of discretionary powers conferred by statute, must so exercise them as not to infringe upon the established legal rights of others. Where a corporation, with the consent of its principal stockholders, has embodied their names in the corporate name, the right to use the name so adopted will continue during the existence of the corporation. A rival company, subsequently formed, and embracing such stockholders, will have no right so to use the names of such stockholders as to mislead those dealing with them into the belief that the two companies are the same. The ground on which courts of equity afford relief, in cases of infringement upon the rights of property in trade-marks, is the injury to the party aggrieved and the imposition upon the public. These consequences do not necessarily depend upon the question whether there is actually any fraud or evil intent. The quo animo, therefore, would seem to be an immaterial inquiry. Where the probable and ordinary consequences of a man's acts will be to benefit himself to the injury of another, his intention to produce that result may be legitimately inferred.— Holmes, Booth & Hayden v. Holmes, Booth & Atwood Manuf. Co., 37 Conn. Rep. MARINE INSURANCE-Construction of Policy of Insurance against Losses as Carriers-Right to complete Indemnity.-Plaintiffs, who were lightermen, were insured by a Lloyd's policy, upon craft of every description "at and from all or any of the wharves, banks, quays, and places of arrival or departure in the river Thames, comprising the whole extent of the river from Wandsworth downwards to the Victoria Docks, including all or any intermediate docks and wharves, and vice versa, until on board any merchant or steam vessel, barge or boat, or otherwise landed at any wharf," etc. The policy was " on all goods and produce as interest may appear," and at the foot of it was written "to cover and include all losses, damages, and accidents, amounting to £20 and upwards, on each craft, to goods carried by the plts. as lightermen, or delivered to them to be waterborne, either in their own or other craft, and for which losses, damages, and accidents the plts. may be liable or responsible to the owners thereof or others interested. It is agreed that the amount of each underwriter's liability shall not exceed the amount of his subscription." This policy was subscribed by underwriters for sums amounting to £2,000. Deft. underwrote it for £100, During the risk a loss occurred to goods carried by plts, as lightermen, for which plts. became responsible to the owners interested to the amount of £1,100, and paid that amount. The total interest of plts. in goods carried in this and other barges, amounted at the time of the loss to £20,000:-Held, that the policy was not a marine policy, but was intended to indemnify plts. against losses sustained by them as carriers, and that deft. was liable to the extent of his subscription, and not merely to such a proportion of the loss as his subscription bore to the whole value of plts'. interest at the time of the loss.-Joyce v Kennard, 41 L.J. Q.B. 17.
TRESPASS-Obstruction of Highway in Navigable Lake.-A. being the owner of land adjoining a navigable lake, the bed of which was the soil and freehold of plt., granted to defts. a right of way, and made a pier, part of which was upon his own land, and part upon the bed of the lake. He then leased the pier and the land belonging to him to defts., a Steamboat Company, who used the pier for the purpose of landing and embarking passengers. If the pier had not been built on the bed of the lake, they might have brought their steamboats sufficiently near to be able to land their passengers, by means of a temporary stage reaching from their boats to the land so leased to them, and upon which part of the pier was built. The public had a right to navigate the lake, and plt. had not removed the pier, although it had been erected without his consent and against his will:-Held, that he could not maintain an action against defts. for using the pier as above stated, inasmuch as while he allowed it to remain, it was an obstruction to their right to navigate the lake, and to land and embark their passengers at that place. - Marshall v. Ulleswater Steam Navigation Co., 41 L.J. Q.B. 41.
MARINE INSURANCE-Open Policy-Concealment-Mistake in name of Ship.— Plaintiffs (brokers) were employed by G., of Hamburg, to enter into policies to cover hides on ship or ships to be declared. Defts. subscribed one of these policies. Another policy had been subscribed by the Progress Company, which was being wound up, and the proportion remaining open upon that policy was £121. G. wrote to plts. directing them to declare upon the policies to cover hides shipped on The Socrates, Jeaucard, from a port in the Brazils to Hamburg. The Veritas contained The Socrates, Captain -, a new Norwegian vessel, and The Socrate, Captain Jeaucard, an old French vessel. Plts. and their clerk looked over the Veritas and saw the two vessels as above mentioned. The clerk was then sent to defts., and saw D., a clerk, who asked him whether The Socrates named in the Veritas was the ship. He said he thought it was. He indorsed upon the policy a declaration of interest by The Socrates, and requested defts. to insure on the same ship for £121, by way of re-insurance of what had been insured in the Progress. A policy for that amount was executed. G. shipped hides on board The Socrate, and she was lost, with the hides on board. Plts. had also been employed by K., of Hamburg, in the same way, and had opened with deffs. a policy on hides, by ship or ships to be declared, for £3,000. In pursuance of further instructions from K., they agreed with defts, for a further policy of the same nature to the extent of £5,000. For this last transaction a slip was signed. K. subsequently wrote to plts., informing them that he had hides to the value of £2,700 coming by The Socrates from Brazil to Hamburg, and also hides to the value of £3,600 coming by The Sophie, and desiring them to insure £1,100, and to declare on their open policies for the residue. One of plts. went to defts. on the 4th Feb., and saw L., another clerk, in whose presence he wrote out a slip for a policy for £2,455, which was initialed by L., and was intended to be in the stead of a declaration for that amount on the open policy for £5,000. K. shipped hides on board The Socrates, which was lost as before mentioned. Actions having been brought upon the policies for £121 and £2,455, the jury were asked whether the parties, in entering into the contracts, both meant to insure the hides by the vessel on which they were actually shipped, whatever her name might be, though they supposed it to be The Socrates, or whether defts. meant to insure on hides on board The Socrates. The jury answered the question in favour of plts. :-Held, that the policy for £121 was invalid, inasmuch as defts. were not under any obligations to subscribe it, and plts. had by the letter received from G. reasonable means of knowledge that the vessel was the vessel of which Jeaucard was the captain; and as the expression of opinion by their clerk was tantamount to an assertion that the ship was The Socrates, there had been a misrepresentation made to deft. as to a material fact. But held, that plts. were entitled to recover on the policy for £2,455, for although the slip for the policy for £5,000 was not a contract enforceable at law or in equity, it was an engagement which could not be repudiated without a breach of faith, and the policy for £2,455 must be taken as made
on the basis of that engagement, and therefore that it was not material to defts. whether there were or were not facts known to the insured, and not known to them, which might make the vessel a less eligible risk. Under 30 Vict. c. 23, ss. 7 & 9, a slip for a policy of insurance may be given in evidence where it is material, although not stamped.-Ionides v. Pacific Fire and Marine Insurance Co., 41 L.J. Q.B. 33.
NEGLIGENCE Broker-Liability for want of competent skill as Arbitrator.— Defendant, a broker, was employed by plaintiff to sell, and, as selling broker, sold for plaintiff "to arrive" certain goods on the terms that they were "fair average quality in opinion of selling broker." The buyers having on the arrival of such goods refused to take them, deft. went and inspected them, and gave his opinion that they were not of fair average quality according to the contract: -Held, that he gave such opinion as quasi arbitrator, and was therefore not liable to an action for any want of skill in forming it.—Pappa v. Rose, 41 L.J. C.P. 11.
SALE Of Chattel on Condition-Breach of Warranty-Rescission of Contract.The purchaser of a mare at an auction was induced to buy her by the description that she had been hunted with certain hounds. The conditions of sale provided that horses not answering the description must be returned before a specified time, otherwise the purchaser must keep them with all faults. The purchaser paid the price, and was casually told that the description was untrue. Nevertheless, he removed the mare to his own stables, and, while being so removed, she ran away, and injured herself severely, without any negligence on the plaintiff's part. The description was, in fact, untrue, and on that ground the purchaser returned her to the seller within the specified time:-Held, that since the purchaser had in removing her done no more than he was entitled to do under the contract, and since the injuries were not owing to any negligence on his part, he had not lost his right to rescind the contract, and could recover the price from the seller in an action for money had and received.—Head v. Tattersall, 41 L.J. Exch. 41.
BILL OF EXCHANGE-Collateral Security-Appropriation-Equity.-On the 14th Sept. P. & Co. purchased from H. a floating cargo of maize, and same day resold it to deft. On 4th Oct. P. & Co., according to the custom of the trade, paid H. (who retained the shipping documents) a deposit of £883 on account of the cargo, and the same day drew a bill on deft. for that amount, which deft. accepted. P. & Co. discounted the bill with the plts. On the arrival of the cargo in Nov. P. & Co., acting on deft.'s instructions, sold the cargo for him to C., who paid H. the balance due from P. & Co. on the first sale, and received direct from H. the shipping documents. There was then remaining in C.'s hands a balance of £415 due to deft. On 2nd Dec. P. & Co. executed a deed of inspectorship; on the 17th the bill for £883 was dishonoured at maturity; and on the 20th deft. filed in Dublin a petition for arrangement with his creditors. Had P. & Co. not suspended payment, they would have been entitled, according to the regular course of business, to appropriate the balance of £415 to the taking up of the bill; and it would also have been their duty towards deft. to do so, and to retire the bill. C. having paid the £415 into Court,-Held that the money paid in ought to be applied towards taking up the bill, and ought not to be paid to deft. or his trustees.-Bank of Ireland v. Perry, 41 L.J. Exch. 9.
BREAD-Adulteration by alum-Conviction.-6 and 7 Will. IV. c. 37, s. 8. A person cannot be convicted under s. 8 of 6 and 7 Will. IV. c. 37, for using prohibited mixtures or ingredients in making bread for sale, unless there be knowledge either in himself or in the person employed by him of the presence of the mixture or ingredient.-Core v. James, 41 L. J. Mag. Ca. 19.
GUNPOWDER ACT-Keeping cartridges without license: dealer but not manufacturer. By 23 and 24 Vict. c. 139, s. 6, "The following regulations shall be observed with respect to the manufacture of loaded percussion caps, and the