plied in a time policy, or that it is not the same as in a voyage policy, "according to the situation in which the ship may be at the commencement of the term .. if the ship be at sea, that she was seaworthy, when that voyage commenced." In short, that the obligation on the assured is just the same in a time policy as if the service in which the vessel was, or was intended to be engaged, or might be engaged in during the term, was inserted in the policy.

It seems to be pointed out as a rule, that the measure of the obligation of the assured is what he is capable of performing; and, therefore, that there may be a warranty of seaworthiness at the commencement of the risk, so far as lies in his power to effect it. Thus, the policy would not attach if damage previously sustained had not been repaired, when it might have been by the exercise of reasonable pains. And it clearly would not, if any one insured a ship then on a voyage, and known to him not to have been seaworthy at its commencement; so that this decision offers no inducement for concealment.

PARTNERS IN TRADE-MANUFACTURERS JOINT PROPERTYSURVIVORSHIP.

Buckley v. Barber, 20 Law J. Exch. 114.

THE case of partners in trade forms an exception to the right of survivorship, which is an incident of the joint possession of a chattel as well as of the joint tenancy of real property. This maxim, "Jus accrescendi inter mercatores locum non habet," is established beyond doubt, but it is also settled that as far as applicable to real property and to choses in action, it exists only in equity. Until the present case it was not quite clear that the exception was at all recognized in courts of law, even in cases where it was sought to be applied to chattels in possession. The principal authorities for confining the operation of the maxim altogether to equity consist of an expression of Lord Tenterden's to that effect, in the case of a ship (Law of Merchant Ships, 8th ed. p. 97), and of the inferences to be drawn from one or two dicta of equity judges, which were however susceptible of being explained, as said of choses in action. On the other side, in Co. Litt. 182 a, and Noy, 26, n., it is said that there is no survivorship among merchants; and although it is laid down generally as equally true both of chattels in possession and choses in action, that was not because it was intended only that it was so in equity, but because the maxim was then supposed to apply to

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both: there were also several dicta, one as far back as 38 Edw. III. and another of Lord Eldon (Ex parte Ruffin, 6 Ves. 126), and the principle was acted upon in Rex v. Collector of Customs (2 M. & S. 223). Thus, although, as observed by Mr. Baron Parke, it is remarkable that the law as to this nice question should be left in any degree of uncertainty, and that authorities should be found each way, the weight of them greatly preponderates against the survivorship at law of the property of merchants in joint chattels.

In the present case the question arose thus: the defendant had recovered judgment against the surviving partner of a manufacturing firm as executor de son tort to a deceased partner, and had taken in execution certain fixtures and machinery which the surviving partner had previously assigned to the plaintiffs as security for rent. The question was whether the legal property in the deceased partner's share passed to his executors or survived to his partners. The maxim was held to apply, and the term merchants" was construed to include manufacturers; for the principle, it was said, being for the encouragement of trade, applies to manufacturers in partnership and every other description of traders.

PRINCIPAL AND AGENT-UNDISCLOSED PRINCIPAL-AGENT REAL PRINCIPAL.

Schmalz v. Avery, 15 Jurist, 291.

THAT a contract made by an agent as principal may be sued upon either by himself or by the real principal, and, conversely, that the other party to such a contract may elect to enforce it either against the apparent or the real principal when discovered, may be safely laid down as a general rule. And where the agent contracts as such, but for an unnamed principal, the same rule may now be said to apply. This was clearly the case as far as the rights and remedies of the other party to the contract, and those of the undisclosed principal, are concerned, subject of course to the exceptions arising where the state of accounts has already been altered. But whether a contract entered into by an agent for an unnamed principal was capable of being enforced, not only against, but by him, as if he were the principal, was a point which had not yet been positively decided. It was raised in the present case upon these facts: the plaintiff sued in assumpsit for breach of a charter-party not under seal, entered into by him as 66 agent of the freighter," and which contained a clause (the insertion of which by mistake was proved by parol evidence)

providing that "This charter being concluded on behalf of another party, it is agreed that all responsibility on the part of S. & Co. ceases as soon as the cargo is shipped." It was objected that there was a variance between the declaration, which alleged the plaintiff to have contracted as a principal, and the written document proved, in which he was described as agent; and it was urged that by that description he ought to be concluded; and that had he been known to be the principal, the defendant might not have dealt with him. Bickerton v. Burrell (5 M. & S. 383), in which an agent, suing on a contract entered into by him as such, was not allowed to recover; and Rayner v. Grote (15 M. & W. 359), where he recovered only, because the contract was partly executed, were cited. These two cases, however, were both distinguishable, as the principal was named in each.

The question was, in the judgment, stated to be reduced to this, whether a refusal of the defendant to have contracted with the plaintiff as principal was to be assumed, and a broad rule laid down that a person contracting as for an unnamed principal, should be precluded from saying "I am that principal.' Whether so to do was his original intention or not, the charterparty would be contradicted, but without prejudice to the defendant, who was regardless who the real freighter was. This contradiction would not, however, take place if the plaintiff could be considered as filling two characters, those of agent and principal; and although a man cannot strictly be said to be agent to himself, yet the court thought there was no absurdity in saying, that in a contract of that description, he might fill both characters-he might contract as agent for any freighter who might come forward, and still adopt that character afterwards himself. The clause limiting his responsibility as agent was clearly no objection, as he would continue responsible as principal.

RAILWAY-Recovery of Deposits—EXECUTION OF SUBSCRIBERS' AGREEMENT.

Ashpitel v. Sercombe, 19 Law J. Exch. 82; Watts v. Salter, 20 Law J. C. P. 43. ALTHOUGH the rights of allottees have become a question of happily much diminished interest, yet as these two cases are decisions of a court of error and of great weight on this branch of the law, a short notice of it in connexion with them will not be misplaced.

There seems to be no doubt that if a man pays money for shares in a scheme which either never comes into existence or

is abandoned before it is carried into execution, he may recover it as money had and received to his use, as having paid it on a consideration which has failed, unless he can be shown to have consented to or acquiesced in the application of the money which the directors have made.

The right of an allottee to recover his deposits upon shares in an abortive scheme, depends therefore upon the question if he has authorized their being, in such case, used in discharge of preliminary expenses. Thus, where the allottee has executed a deed which warranted such application, he is estopped from questioning its propriety, unless he can impeach the deed itself on the ground of fraud. So where he has not signed the deed, but the jury find that he has agreed to place himself in the same position as if he had; so also where he has assented to special terms introduced into the letter of allotment, he is likewise bound. But in Ashpitel v. Sercombe, where the plaintiff had written for shares to be taken subject to the provisions of the subscribers' agreement which he agreed to execute, and where this proposal was accepted, and thereupon the plaintiff paid the deposit, but never executed or even saw the subscribers' agreement, it became a question if the application of the deposits, which that deed warranted the directors in spending, was according to the terms of the contract under which they were paid. And the court were of opinion that it was not, and that the form of the application for shares made no difference. The letter, says Patteson J., in delivering judgment, does not refer to any specified agreement. . The plaintiff was not by it subjected to be bound by the terms of this particular deed, or of any other specified deed, but by the terms of any such deed as the directors might properly call on him to execute. the directors prepared such a deed and gave him the opportunity to execute it, he would be bound by its terms, although he did not execute it; but if no deed at all or no deed which he could properly be called upon to subscribe was prepared, the condition becomes inoperative. And the court thought the deed in question clearly such a one as the plaintiff could not have been compelled to execute, as the powers it conferred exceeded those warranted by the 7 & 8 Vict. c. 110, s. 23.

If

In Watts v. Salter, the letter of application contained an undertaking to execute the necessary deeds, and between its reception and before the allotment, the capital and the number of shares were increased; the allotment was to be void on nonpayment of the deposits by a certain day. A prospectus of the altered scheme was seen by the plaintiff, in which it was stated that all the shares were allotted, which was not quite exact. Afterwards the plaintiff saw the deeds and paid his deposit.

Deposits were paid on rather more than half the shares, and the allotment of the rest had become void for non-payment when the plaintiff executed the deeds. At the trial, these facts not being disputed, the judge directed a verdict for the plaintiff, on the ground that the plaintiff's execution of the deeds did not affect his right to recover, as its terms were not applicable to the concern he originally took shares in, and which at the time of his executing the deeds was already determined and abortive. The defendant appealed, and the court of error unanimously thought the ruling was wrong. was wrong. Wontner v. Shairp (4 C. B. 404) went entirely on the ground of fraud. Here fraud was not submitted to the jury. We offer no opinion," said Parke, B., "as to whether the evidence would have sustained a finding to the effect that the plaintiff's execution of the deed was obtained by fraud. Nor is it necessary to consider how the case would have stood had the plaintiff not executed the deed. But we think that the deed must be read by itself;" and on this broad ground, that until the deed was affected with fraud, its plain words must be construed by themselves and without reference to the previous parol contract, judgment was reversed, as the deed fully warranted the application of the deposits.

The result would seem to be, that although, except in special contracts, an allottee cannot be called upon to execute a deed empowering the directors in case of failure to apply the deposits in discharge of liabilities, yet if he do execute it, or do anything tantamount, he will be bound by its terms. If, however, its execution was obtained by fraud, it is, according to Wontner v. Shairp, clearly otherwise; but fraud is not to be presumed from the mere fact of the deed's conferring larger powers than the original contract contemplated; it is a question of fact, and must be left to the jury, and until so found, the terms of the deed alone must govern the contract. On the other hand, a jury would not be warranted in finding a general undertaking to execute a deed, to be equivalent to the executing a particular deed not in conformity with the original contract.

SEQUESTRATION-1 & 2 VICT. c. 106-PENAL PROCEEDINGS

EX PARTE.

Bonaker v. Evans, 20 Law J. Q. B. 137.

THE principle that a man is not to be punished unheard, has been noticed in its bearing upon the construction of the 9 & 10 Vict. c. 95, ss. 98, 99, on two recent occasions, by notes in this Magazine; one in No. 12, N. S., upon Ex parte Kinning, the other in the last Number, upon the case of Abley v. Dale; and