cision in Wall v. Wall (15 Sim. 513) observed upon. Robinson v. Wheel- wright. Page 535
An adventurer in a Mining Com- pany, the rules of which did not contain any provision for the for- feiture of shares on non-payment of calls, received notice from his co-adventurers and co-lessees of the mines, that unless his arrears of calls were paid up, his shares would be forfeited on a specified day. He replied by denying the right to forfeit his shares. A re- solution extending the time for payment was then communicated to him, to which he replied by denying the right to deprive him of his share in the lease. Some months after the extended time had expired, he received from the co-adventurers another application for payment of his arrears, of which he took no notice until more than six months had elapsed, when he claimed to be still a partner. Two years afterwards he filed a bill for an account:-Held, that he was entitled to be still considered a partner. Although mining partnerships differ in many respects from others, and it would be often unjust to allow a partner to participate in the suc- cess of such a speculation who had omitted to contribute to it while doubtful, it would be scarcely less unjust to allow, in all cases, the partners who have paid, as against one who has not, to take the law into
their own hands and appropriate to themselves the whole profits. Every such case depends on its own circumstances, and particularly on the question whether there has been a purpose of abandonment on the part of a partner in default. Hart v. Clarke. Page 232
MISREPRESENTATION. See VENDOR AND PURCHASER.
A mortgagor, having made two suc- cessive mortgages of his estate to different persons, purchased the estate from the first mortgagee selling under a power of sale con- tained in his mortgage: the pur- chase-money was not sufficient to pay off the first mortgage:-Held, that the mortgagor could not by this purchase defeat the title of the second mortgagee. Whether this would be the case if the
estate had been sold to a stranger and subsequently purchased from such stranger by the mortgagor, quære. Olter v. Lord Vaux.
EXONERATION. STATUTES, CONSTRUCTION OF.
MORTMAIN. See CHARITY, 1.
ORDER AND DISPOSITION.
See BANKRUPTCY, 6.
On the death of an usher of the Court in 1702, a large sum, for which, as usher, he was account- able, was due from him. In a suit instituted for the administra- tion of his estate, more than suffi- cient was realized to liquidate the amount, and all sums actually claimed were paid. In 1719 the Court ordered a fund sufficient
answer the unclaimed sums to be invested, and directed the interest to be paid to the repre-
sentative of the deceased usher until further order. Similar orders for payment of the interest were from time to time, down to 1833, made on the application of the existing representative of the usher; and in 1854, a petition was presented for the same purpose by the then representative. On a full discussion of the case, and on the petition being amended, an order was made for the transfer to him of the principal fund. Whether there can be an appeal to
the House of Lords upon a mat- ter relating to the Suitors' Fund, quære, by the Lord Chancellor. Trevor v. Blucke. Page 170
ONUS PROBANDI. See UNDUE INFLUENCE.
PARTNERS.
See BANKRUPTCY, 12, 13.
1. An agreement was entered into between four persons who were interested in certain Patents and Inventions relating to Gutta Per- cha, that all Patents taken out, or in the course of being taken or intended to be taken out, or that might at any time thereafter be taken out by any or either of them, or on account of and for the benefit of any or either of them in relation to the preparation and application of Gutta Percha, or the manufacture of any articles therefrom, should be assigned to trustees and held for their com- mon benefit. Subsequently one of the parties took out a Patent for "Improvements in Apparatus and Machinery for giving Shape and Configuration to Plastic Sub- stances," and refused to assign the Patent to the trustees, alleging that it was not comprised in the agreement: - Held, that the Patent,
so far as it related to Gutta Percha, was subject to the trusts of the agreement, and that it could not be treated as not being so, be- cause it was for machinery which might be applied to the manufac- ture of articles of Gutta Percha and not for the manufacture of any such articles. Bewley v. Han- cock. Page 391
2. A contractor for certain harbour works had in the progress of his undertaking invented an apparatus which greatly facilitated the works, but which could only be tested in a place accessible to the public. After having used the apparatus for four months in the progress of the works, he applied for a patent: -Held, that such user amounted to a dedication to the public, and that he was not entitled to a Pa- tent. In re Adamson's Patent. Page 420
3. An application under the 2nd section of the Act 16 & 17 Vict. c. 115, for the inspection of the provisional specification of certain Letters Patent, on the ground that the subject-matter was the same as that for which the applicant had obtained a Patent, refused. Letters Patent sealed in a case where the evidence shewed great simi- larity between the alleged inven- tion and one for which a Patent was already in force. In re Tol- son's Patent. Page 422
See APPROPRIATION OF PAYMENTS.
PENDING PROCEEDING.
See CHARITY, 2.
PLAINTIFF.
See INSOLVENT.
Although one of two executors or trustees may sue the other exe- cutor or trustee for contribution in respect of a breach of trust without making the cestuis que trust parties to the suit, yet where such cestuis que trust have par- ticipated in the breach of trust, they are necessary parties. Jesse v. Bennett. Page 609
1. A donee of a power of appoint- ment by deed or will appointed by deed the whole fee, reserving a power of revocation and new ap- pointment, exercisable by deed. By a subsequent deed she re- voked the uses, trusts and powers limited and appointed by the for- mer appointment, and appointed the whole fee, reserving a power of revocation and new appoint- ment, exercisable by deed. By a third deed she revoked the uses, trusts and powers limited and ap- pointed by the last appointment, but declared no new uses :-Held, that she had not by these deeds precluded herself from exercis- ing the original power by way of testamentary appointment. A power is not necessarily exhausted by a revocable appointment, and
if such an appointment is revoked without having been acted upon, the power is generally, if not universally, still exercisable. A power of appointment by deed or will is a single power.
A power of revocation and new appointment confers two distinct powers which may be exercised at different times. Montague v. Kaler (8 Exch. 507) approved of. Evans v. Saunders. Page 654 2. A donee of a power of appoint- ment over a gross sum of money which in default of appointment was to be divided equally among her children, appointed a specific sum which she described as being "part
of" the gross sum; but she did not make any appointment of the residue. The gross sum prov- ing deficient :-Held, that the spe- cific sum appointed was to be paid in full, and not rateably out of the deficient gross sum. Booth v. Alington. Page 613
See APPOINTMENT.
On an inquiry directed at the hearing the chief clerk certified that the advance of the 2,000l. was a gift and not a loan :-Held, that what- ever effect this certificate might have on the hearing on further consideration, it could not be dis- puted by a party who had neither taken out a summons nor moved to have it varied. Smith v. Arm- strong. Page 150
See BANKRUPTCY, 7. INFANT.
PRECATORY WORDS. See WILL, 2.
PRESENTATION.
See ADVOWSON.
PRESUMPTION.
See EVIDENCE.
UNDUE INFLUENCE.
PRINCIPAL AND SURETY. Indorsees of bills of exchange as a security for a floating balance due on the accounts between them and the drawer had notice that the ac- ceptor was a surety for the drawer. They afterwards entered into an agreement with the latter that the existing debt should be liquidated by the drawer building for them certain ships, and should, in the meantime, be secured by a policy of assurance :-Held, 1. That time was thus given to the principal debtor, and that the surety was released in equity, if not at law also. 2. That a creditor who holds a floating guarantee from a surety cannot, without the surety's consent, give time to the principal debtor as to a portion of the debt, without reserving the creditor's rights against the surety, and yet hold the surety liable for that portion. 3. That whether the acceptor could or could not use, by way of defence to tion by the holders of the bills, the giving of time by them to the drawer, he was not bound to do so, but might (at the risk of costs) defend the action on other grounds,
and also institute a suit for equit- able relief and an injunction to restrain the proceedings at law, though if the matter had been pleaded at law, and the court of law had adjudicated on the plea, the case might have been different. Davies v. Stainbank. Page 679 See BANKRUPTCY, 8, 9.
PRIORITY. See JUDGMENT, 1, 2, 3.
PROCESS. See BANKRUPTCY, 14.
See BANKRUPTCY, 10, 11, 12, 13.
PROTECTION. See BANKRUPTCY, 14.
PUBLIC BODY. See PUBLIC HEALTH.
PUBLIC COMPANY. See STATUTES, CONSTRUCTION of. WINDING-UP Acts, 1, 2.
PUBLIC HEALTH. Under the 45th, 46th and 145th sections of the "Public Health Act, 1848," providing that the local boards may make necessary sewers through or under any lands whatever, and cause them to be emptied into such places as may be fit and necessary, provided that nothing in the act shall authorize
the boards to use, injure or inter- fere with any watercourse, stream, river, &c. in which the owner of any lands may be interested, with- out the consent of such owner :— Held, 1. That persons having a right to watering-places in a river adjoining their lands for the use of their cattle, are interested in the river within the meaning of the proviso, but would not be able to maintain an action for an inter- ference with their rights, unless they were injured by such inter- ference. 2. That works of a Local Board of Health producing an outfall of the sewage of a town above such a watering-place was such an interference as to cause injury to the landowners, but that whether this was established or not, it ought (if not consented to by them) to be restrained by in- junction, being the act of a public body exceeding its powers. 3. By Cresswell and Williams, Js., dubi- tante Turner, L. J., that a right of fishing is within the term "land" according to the interpretation clause of the Public Health Act, 1848. Oldaker v. Hunt. Page 376
PUBLIC POLICY. See SOLICITOR.
PURCHASER. See JUDGMENT, 3.
PURCHASE, WORDS OF. See WILL, 5.
« PreviousContinue » |