English Cases.

DAMAGES. Declaration that defendants wrongfully raised, made, and continued an embankment of earth near plaintiff's dwelling-house, by reason whereof large quantities of water flowed down to the house, rendering it damp and less fit for habitation. Plea, that the embankment was raised and continued by defendants under the powers of certain Acts of Parliament. Replication, that although the embankment was raised and continued under the Acts, yet it is no bar, because the flowing of the water down to plaintiff's house was occasioned by the wrongful construction, negligent and improper raising and making of the embankment, and the want of proper and sufficient drains to the same, and continuing it so wrongfully constructed and insufficiently drained, by reason whereof, after the completion of the embankment, the flowing of the water against plaintiff's house took place. It was held the replication was good, and no departure, by Crompton, J., and Mellor, J.; Cockburn, C. J., dissenting. Crompton, J.: The plaintiff was not called upon to anticipate the defence by showing that the works were not justified by reason of Acts of Parliament which might never be set up. Such mode of pleading would probably be improper, and the matter alleged would probably have no effect on the subsequent pleadings, and be treated as merely idle; as in the case where a plaintiff alleges in his declaration that a defendant, from whom he expects a plea of infancy, was of full age when he executed the instrument declared on. Such pleading is what has been called leaping before you come to the hedge.(Brine v. Great Western Railway Co., 31 L. J., Q. B. 101.)

COUNSEL-Company.-A counsel cannot be heard to argue his own case with another; he must either appear in person or by counsel. If an incorporated company acting by an agent induces a person to enter into a contract for the benefit of the company, that company can no more repudiate their fraudulent agent than an individual can repudiate his; consequently the company are bound by the misrepresentation of their agent. The Lord Chancellor: Whenever an application was made to a court of equity to set aside a conveyance that had been made, the jurisdiction of the court of equity for the purpose must be founded on something amounting to fraud; and if the ground alleged was misrepresentation, either by the statement of what was false, or by the suppression of something that ought to have been disclosed, and so producing a false impression and conclusion, the case so alleged must be shown, according to the language of Lord Eldon, to amount to that which a court of equity holds to be fraud. But it was most essential in the administration of justice in a court of equity, that the nature of the case, when it was constituted of fraud, should be most accurately and fully stated in the bill of the plaintiff. -(New Brunswick and Canada Rail. and Land Co. v. Conybeare (House of Lords), 31 L. J., Ch. 297.)

SHAREHOLDER.-A person may be a shareholder of a company within the meaning of section 27 of 8 & 9 Vict., c. 16, without there being a register of shareholders duly authenticated by the seal of the company, provided he is entered in a book analogous to a register, as the holder of shares numbered and specifically appropriated to him. Wightman, J.: It may be that the sealing of the register may be requisite in certain cases to make it evidence; but it is not necessary that it should be sealed in order to make the defendant a shareholder. (Wolverhampton New Waterworks Co. v. Hawkesford (Ex. Ch.), 31 L. J., C. P. 184.)

CONSTRUCTIVE TRUST.-Although debentures issued by a joint-stock company to a director in payment for work contracted to be done by him for the com

pany are invalid in his hands, under 7 & 8 Vict., c. 110, s. 29, their invalidity will not affect a bona fide assignee for valuable consideration without notice, if the company have encouraged him in the belief that they were valid. Wood, V. C. The 29th section of the Joint-Stock Companies Registration Act, 7 & 8 Vict., c. 110, expressly says, that all contr acts of a joint-stock company with a direct or shall be void unless certain formalities are complied with, and I have already held that an honorary director, such as Mr Stears is said to have been, is in the same position as an ordinary director. But Mr Hulett, to whom the debentures were assigned, had no knowledge that Stears was a director at all. His name was not returned as such; and I think, looking to that fact, and the fact of the contract being entered into with the company, Hulett is entitled to say he was not a director at all. There is a question, on the construction of the deed of settlement, whether debentures could be given only for loans; but I think this not very important, for I think they could be given for a debt due on contract; but whether they were given for loans or for work done, as regards Stears himself, they would be equally invalid.-(Re the South Essex Gaslight and Coke Company, Hulett's case, 31 L. J., Ch. 293.)

WILL.-A. and B., sisters living together, by a testamentary paper duly executed by both, directed that upon the death of either whatever remained of their joint savings should go to the survivor, and that at the death of the survivor whatever remained, as also their furniture, plate, etc., should be divided amongst certain specified persons. Upon the death of B., who survived A., the Court granted administration with this paper annexed as the will of B.—(In the goods of Lovegrove, 31 L. J., Pr. 87.)

INSURANCE ON LIFE.-A life policy was headed 'The Annual premium L.33. Whole term, payable by quarterly instalments of L.8, 5s. each.' The policy was dated the 2d of August 1856, and recited a payment up to the 2d of November of that year, and declared that if the life insured should die 'before the expiration of twelve calendar months from the date hereof,' and the assured should, on or before that period, or on or before the expiration of every succeeding twelve calendar months, pay the annual amount of premium,' the insurance office should be liable. If the life should die before the whole of the quarterly payments' were payable, the directors might deduct from the sum insured what would be sufficient to 'satisfy the whole of the said premiums for that year.' If the life died before having been assured fifteen months and made two annual payments,' the policy was to be void. The life died within twelve months after the third quarterly payment became due, but before it was paid. It was held by the House of Lords, the policy must be construed to have become void on non-payment of any quarterly premium, the payment of all the quarterly instalments being a condition precedent to the continuance of the policy for the current year.--(The Official Manager of the Phanix Life Assurance Co. v. Sheridan, 31 L. J., Q. B. 91.)

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BILLS AND NOTES.-An action may be brought by the holder of a banker's cheque payable to the bearer against the drawer, by the holder and indorsee against the maker and indorser of a promissory note, and by the holder against the acceptor of a bill of exchange, in the name of a third person who has no interest in any of these securities, and who has given no authority for the use of his name, and who is ignorant, at the time of his name being so used, of its use for that purpose, if the holder indorse the promissory note and bill of exchange with the name of such third person; and, if such third person after action brought adopt and ratify the proceedings taken in his name, the defendant in such action cannot dispute his liability on the ground that the plaintiff was not the bearer of the cheque, the indorsee or lawful holder of the note, or the owner or lawful holder of the bill. Wilde, B.: In the judgment in the case of Wilson v. Tumman, to which I have already referred, the law is very distinctly laid down at p. 242 in the report in 6 Man. and G., That an act done, for another, by a person not assuming to act for himself, but for such other person, though

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without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by hin, is the well-known and well-established rule of law. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent as by and with all the consequences which follow from the same act done by his previous authority.'-(Ancona v. Marks, 31 L. J., Ex. 163.)

WILL.-Testator on his deathbed gave instructions for a will to a person who was unknown to him, and who, in preparing the will, omitted the testator's surname, and also introduced the name and description of an executor who was totally unknown to the testator or any of his friends or relations, and who could not therefore be identified. With the consent of all the parties interested, the Court granted administration with the will annexed, to one of the residuary legatees, under the 73d section of the Probate Act, 1857.—(In the goods of Sawtell (deceased), 31 L. J., Pr. 65.)

FRAUD.-A trader, when involved in difficulties and hopelessly insolvent, deposited the title-deeds of property of which he was the surviving trustee with his brother, who was entitled to the same property for life under the will of which the bankrupt was such trustee, as security for a debt owing to the brother. One of the Commissioners held that this was a fraudulent preference, and refused any certificate, and withheld protection. On appeal, the decision was affirmed; but protection, under the circumstances of the case, was granted valeat quantum.-(In re Barton, 31 L. J., Bank. 7.)

MARINE INSURANCE.-R., the owner of a cargo of wheat shipped at Odessa for England, valued at L.7000, effected two policies, one for L.4000, and the other for L.3000. The cargo fell in value, and was agreed, on the 8th of March, to be sold to an agent of B. for L.5358 by a contract for sale of cargo, including all shipping documents, freight and insurance, and the documents were accordingly delivered; and B., on the 13th, gave an order for the amount, which was paid on the following day. R. indorsed on the policy for L.3000, 'We transfer this policy to Messrs to the extent of L.1700,' and the same was delivered to the agent of B. The ship and cargo were totally lost on the 16th of the same month. The insurance company paid L.1300, the remainder of the L.3000, into Court; and Vice-Chancellor Wood decided that the same belonged to R., for that B., under his contract, was not entitled to an assignment of all existing policies effected on the cargo, but merely to have the cargo sufficiently insured; and that a provision in his contract, that the price was to be paid in exchange for bills of lading and policies of insurance, did not alter the case. From this decision B. appealed; and it was held, reversing that decision, that R. was not so entitled, but that the whole L.3000 secured by the policy belonged to B., the wheat having been sold as insured at the price set upon it by the vendors in the policies, and not at the price to which it had afterwards fallen. Vice-Chancellor Wood had ordered a fund in Court to be paid to R.; and upon the reversal of that decree, R. moved that that part of the decree of the Appeal Court which ordered the fund in Court to be paid to B. should be suspended pending the appeal of R. to the House of Lords; but the Lords Justices declined, B. not objecting to give security to abide by any order of the House of Lords on the hearing of the appeal.—(Ralli v. the Universal Marine Insurance Co., 31 L. J., Ch. 313.)

FRAUD.-A solicitor was co-trustee under a settlement of a sum of L.3000

charged upon certain property. He borrowed a sum of L.300, and, as security, deposited the title-deeds of the above-named property, without the knowledge of his co-trustee, and without informing the lender of the fact of the L.3000 charge. The solicitor was adjudged bankrupt, and one of the Commissioners refused him any certificate, on the ground that the above was a fraud both on the cestuis que trust and on the lender of the L.300. On appeal, the Lords Justices, considering that wilful fraud could not necessarily be implied from the facts of the case, mitigated the sentence by the grant of a certificate of the

second class, after a suspension of two years from the date of the adjudication, and said that their invariable rule was never to alter an order of a Commissioner refusing a certificate, where fraud was established.—(In re Freston, 31 L. J., Bank. 1.)

MASTER AND SERVANT.-In order to give Justices jurisdiction to hear a complaint as to the non-payment of wages, under 20 Geo. II., c. 19, sec. 1, it is only necessary that the relation of master and servant should exist between the parties, and the contract of service need not be for any specific time.—(Taylor v. Carr, 31 L. J., M. Ca. 111.)

FACTOR.-Defendants, bankers, having at the request of J. L. made advances to S. L., and having a lien on certain goods in their possession in respect thereof, it was agreed between the bankers and J. L., that in consideration of the delivery of those goods to J. L., the latter should deliver to the bankers certain other goods intrusted to J. L. by plaintiff, his principal, to be held as a lien by defendants in place of the other goods, and also in respect of any future advances to be made to J. L., and which J. L. then requested the bankers to make, and which agreement was carried out, and further advances made to J. L. in pursuance of such request. It was held, that the bankers having no notice of plaintiff's title, the transaction was protected by the Factors Act, 5 & 6 Vict., c. 39. To a plea setting up the above facts to an action of detinue by the owner against the bankers, plaintiff replied-First, that he was induced to intrust J. L. with the possession of the goods by the fraud of J. L.; secondly, that the agreement by J. L. to deliver the goods by way of pledge was not made, nor were the goods delivered to the defendants in the usual and ordinary course of business; thirdly, that the goods first deposited with defendants were not J. L.'s goods, nor had the defendants any lien thereon from J. L. It was held, the facts disclosed by the plea constituted an answer to the action under the Factors Act, and that neither replication avoided the plea.-(Sheppard v. the Union Bank of London, 31 L. J., Ex. 154.)

RATE. By a local Act the council of L. were empowered to make a rate for the purpose of defraying the expenses of a library and museum established under the Act, and it was provided the amount to be levied should not in any one year exceed 1d. in the pound upon the rateable value of the property within the borough liable to such rate.' It was held, the amount must not exceed 1d. in the pound upon the rateable value of the property within the borough actually capable of producing and yielding the amount. Cockburn, C. J.: Upon the words of the statute, it is plain that the intention was, that the occupier of each house should be assessable at a rate not exceeding 1d. in the pound upon the rateable value of his house; and it is not because some houses are unfruitful in consequence of being unoccupied, or something of that sort, that he can be called upon to pay at a higher rate than 1d. in the pound.-(In re the Corporation of Liverpool, 31 L. J., M. Ca. 108.)

WILL.-By a will, made subsequently to the Wills Act, 1 Vict. c. 26, testator, after directing his debts and funeral and testamentary expenses to be paid by his executors as soon as conveniently might be after his decease, devised to the persons whom he afterwards appointed executors certain freehold premises, in trust to pay the rents and proceeds thereof unto the testator's son, J. S., for his natural life, but without power of anticipation, and from and after the death of J. S. in trust for the right heirs of him the said J. S. for ever. It was held, the executors took the legal estate in fee in the said freehold premises, and therefore, as both the estate to J. S. for life and also the estate to the heirs of J. S. were equitable, the rule in Shelley's case applied, and J. S. had an equitable estate in fee.-(Spence v. Spence, 31 L. J., C. P. 189.)

THE

JOURNAL OF JURISPRUDENCE.

THE CARDROSS CASE.

SOME things attain a magnitude and importance which they do not deserve. This case, for example, has acquired a celebrity to which it was not entitled, whether we consider it in its origin or its results. It has now come to a conclusion, unless there is an appeal taken against the judgment to the House of Lords; or unless the pursuer, the Rev. Mr M'Millan, profiting by the views of the majority of the judges in pronouncing an adverse decision—but without disturbing it-proceed to raise a new action, calling the proper parties into the field. If he does move further in his unfortunate career, it is likely he will adopt the latter course. In the meantime, we cannot help expressing our opinion, in which the profession and the public at large will concur, that nothing could be more unfortunate than the erratic nature of the procedure the case was allowed to take, and that nothing could be less satisfactory than the result arrived at by the Court. There was one great principle involved in the cause, and that was disposed of long ago. We refer to the principle which was established when the preliminary pleas were repelled, that the Civil Court can competently interfere and set aside a sentence of an Ecclesiastical Court-though it be of a voluntary association of Christians-if it can be shown that the sentence was pronounced irregularly and in violation of the rules or constitution of the Church, and provided also the civil interests of the pursuer have been affected. It was against that view of the law that the defenders in this case contended with so much tenacity; but, since then, they have confined their arguments to a much safer point, viz., that as spiritual privileges confer no civil right, the de

VOL. VI. NO. LXVIII. AUgust 1862.

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