them to the quay, and unloaded them there. The carman not unloading the rails to the foreman's satisfaction, the latter got into the cart and threw out some of them so negligently that one fell upon and injured the plaintiff, who was passing by:

Held (per Grove and Denman, JJ., Brett, J., dissenting), that there was evidence for the jury, that the foreman was acting within the scope of his employment, so as to render the stevedore responsible for his acts: Burns v. Ponlsom, C. P., vol. viii, 563.

MEASURE OF DAMAGES.

Contract in the Alternative-Judgment by Default. The declaration stated that the plaintiff having shipped certain goods to a place abroad, drew against the shipment, and entrusted the drafts to the defendant for presentment, for reward to the defendant, on the terms that the defendant should return the drafts if not paid after acceptance to the plaintiff, or pay the plaintiff the amount of them; that all conditions were performed, etc., necessary to entitle the plaintiff to a return of the drafts, or to payment of the amount of them, yet the defendant did not return the drafts, nor pay the amount of them. Judgment was signed for want of a plea:

Held, (per Keating, Brett, and Grove, JJ., Bovill, C. J., dissenting), that the damages on the contract alleged in the declaration must be the amount of the bills.

Per Bovill, C. J.: The contract, as alleged in the declaration, being a contract in the alternative, it might be performed by performance of either branch of the alternative at the election of the defendant, and therefore the damages might be the value of the bills, if of less value than the amount for which they were drawn: Deverill v. Burnell, C. P., vol. viii, 475.

MISDESCRIPTION IN WILL.

Testatrix devised "all that my share and interest in the lands known by the name of D., situate in the parish of K., now in the occupation of E."

The lands known as D. included two small closes in the parish of L., but only accessible from the rest of the lands, which were in the parish of K,; also one close formerly in the same occupation as the other land, but at the date of the will and the death of the testatrix occupied by M. There was no residuary devise:

Held, that these three closes passed under the devise: Hardwick v. Hardwick, L. C. for M. R., vol. xvi., 168, Eq. Cases.

MORTGAGE BY DEPOSIT.

The relief to which an equitable mortgagee by deposit is entitled is foreclosure, not sale: Pryce v. Bury, (Law Rep., 16 Eq., 153, n.) followed: James v. James, L. J. J., for V.-C. W., vol. xvi., 153, (Eq. Cases.)

NEGOTIABLE INSTRUMENT.

Debenture payable to Bearer-Promissory Note-Custom. In May, 1869, the defendants, a limited company registered under the Act of 1862, sold to M. a document under the seal of the company and signed by two directors and the secretary. It was numbered and headed with the name of the company, and called "Debenture," and proceeded, "The company hereby promise, subject to the conditions indorsed on this debenture, to pay to the bearer 1007. on the 1st of May, 1872, or upon any earlier day upon which this bond shall be entitled to be paid off according to the conditions, and interest at 8 per cent. on the 1st of November and the 1st of May in each year; and also a further sum of 107. by way of interest or bonus at the same time as the principal sum is paid off. In witness whereof the common seal of the company

has been affixed this 9th of May, 1869." By the conditions indorsed a certain number of the bonds were to be drawn for twenty-one days before the days for the payment of the half-yearly interest, and any bond drawn was to be advertised and paid off with the interest and bonus due, the bond being given up and no further interest being payable. In July, 1869, the bond was stolen from M. In October, 1871, the number of the bond was drawn. At the end of 1871 the plaintiff purchased the debenture from S., who had since absconded. The defendants having notice of the robbery refused to pay the debenture to the plaintiff, and he brought an action in his own name, alleging that he was lawful bearer of the debenture. At the trial it was admitted that similar documents had been treated as negotiable; it was also admitted that the plaintiff derived title from the thief; but the jury found that the plaintiff had given value for the debenture without notice:

Held, first, that the contract contained in the conditions prevented the debenture from being a promissory note, even if it had been under hand only; secondly, that it was not competent to the defendants to attach the incident of negotiability to such instruments, contrary to the general law; and that the custom to treat them as negotiable, being of recent origin and not the law merchant, made no difference, as such a custom, though general, could not attach an incident to a contract contrary to the general law. And the plaintiff, therefore, could not recover.

Quere, whether an instrument under the seal of a corporation can be a promissory note: Crouch v. The Credit Foncier of England, Limited Q. B., vol. viii., 374.

PRINCIPAL AND AGENT.

Undisclosed Foreign Principal-Authority of English Merchant when buying Goods on account of Foreign Constituents-"Purchases" to be made "on joint Account of English and Foreign Firms." The presumption (whether it be an inference of fact or a conclusion of law), that foreign constituents do not give the English commission merchant any authority to pledge their credit to those from whom the commission merchant buys on their account, applies to a case in which a foreign firm agrees that an English firm shall "purchase" and ship goods "on the joint account" of the two firms. H. F. & Co. were merchants in London, and defendant was a partner in the firm of H. B. & Co., carrying on business at Rangoon. Goods were supplied by plaintiff to H. F. & Co. on their order given in consequence of an arrangement between the two firms, as disclosed in letters, that II. F. & Co. should "purchase" and send out goods “on the joint account" of the two firms, 2 per cent. to be charged on the invoice by the London firm, and 5 per cent by the Rangoon firm, including guarantee. Plaintiff had no knowledge of defendant, or that the Rangoon firm were in any way interested in the transaction, until after the goods were supplied:

Held, that defendant was not, as an undisclosed principal, a party to the contract under which the goods were supplied by plaintiff; for that, on the true construction of the correspondence, the Rangoon firm did not give authority to the London firm to establish privity of contract and pledge their credit with the English suppliers of the goods: Hutton v. Bulloch, Q. B., vol. viii., 331.

RAILWAY.

1. The directors of a railway company, T., in order to obtain the use of the B. Docks, then existing and situated near the end of their line, wherein to ship and unship goods carried along their railway, entered, in 1849, into a contract with the owners of these docks to pay certain dock and lockage dues, and accepted (under the authority of a private Act of Parliament) a lease for 250 years, by which they bound themselves to procure, so far as they could, all goods sent along their railway to or from

ships, to be shipped or unshipped at these docks, and to pay certain dues and royalties in respect of all goods, etc., shipped or unshipped there which had been or should be conveyed "along the railway or any part or branch thereof: "

Held, that this only applied to the railway or those parts or branches of it which were in connection with some place of shipment or unshipment.

The T. directors by the same lease also covenanted that when and so often as goods, etc., conveyed along the T. Railway, or any part or branch thereof, should be shipped or unshipped in any dock other than the B. Dock, the T. directors and their successors should pay to the B. trustees the same dues, etc., in respect thereof, as would have been payable on such goods if shipped or unshipped in the B. Dock:

Held, that "shipped or unshipped in any other than the B. Dock" did not apply to goods carried along a part of the T. Railway, and then along any other railway, and shipped at any dock whatever and wherever, but only to docks in connection with the T. Railway itself.

Semble, that any other construction of the covenant would make it both unreasonable and ultra vires.

2. After this lease of 1849 had been made, certain private Acts of Parliament were passed which incorporated another body of persons as the P. Company, and authorized the construction by the P. Company of a line of railway and of docks; and also authorized the directors of the P. Company to grant, and the directors of the T. Company to accept, a lease of the new undertaking. The lease was duly executed under the powers of these Acts, and the T. directors thenceforth used the new line and the new docks, and discontinued the use of the B. Docks. In an action by the B. trustees upon the covenants in the lease of 1849:

Held, that those covenants were not thereby violated; that the P. Railway and Docks having been made under Acts of Parliament passed subsequent to the lease, the fact of the F. directors becoming the lessees or assignees of the P. undertaking did not constitute the P. line of railway a "part or a branch" of the T. Railway; and that consequently the T. directors were not, by the use of the P. Railway and Docks, liable to the B. trustees as for breach of the covenants in the lease of 1849: Taff Vale Railway Company v. Macnabb, House of Lords, Eng. and I. Appeals, vol. vi., 160. RAILWAY COMPANY.

Trustee of Stock for Company-Possession of Certificate by him-Equitable Mortgage thereof in Breach of Trust-Subsequent Notice to Mortgagee-Right to Legal Transfer of the Stock-Registration—Mandamus. H., a banker, was a director of the defendants' railway company, and he and another director were the registered proprietors of certain shares in the company, which were held by them as trustees for the defendants. No certificates had been issued to them in respect of such shares. The codirector died.. The shares were afterwards changed into stock, and H. having converted some of the stock to his own purposes, was called upon to replace it, and did so by purchasing stock to the same amount, and the defendants issued certificates to him representing the amount of the stock. It was customary to issue stock certificates to registered holders of all consolidated stock and never the practice to notice on the face of such certificates that the registered proprietors were trustees. In 1866, R., believing H. to be absolute owner of the stock, lent money to him upon the deposit of the certificates as security, together with a written memorandum, by which II. agreed to execute and deliver upon request a valid mortgage and legal transfer of the stock. No notice of this transaction was given to the defendants. R. died, leaving his widow executrix. On the 12th of February, 1869, the defendants found out the fraud of II., and on the 13th of February, gave notice to the executrix

that H. had been a trustee for them. On the 5th of May, at her request, II. executed a transfer of the stock to her. On the 20th of May, she delivered the deed of transfer and certificate to the company, requiring them to register the transfer and her name as the proprietor of the stock; which they refused to do. The Court of Queen's Bench having refused a peremptory writ of mandamus to compel the registration: Held (reversing the judgment), that the defendants, by issuing and allowing their trustee to possess certificates which imported that the holder had an indefeasible title to the stock, precluded themselves from setting up their right as cestuis que trust against the bona fide mortgagee without notice, who acted upon the certificates in advancing the loan; and the executrix was entitled to a peremptory mandamus: The Queen v. Shropshire Union Railway Co., Q. B. (Ex. Ch.), vol. viii., 420. REPLEVIN.

Judgment recovered-Special Damage-Trespass to Land-Mortgagor. Certain premises were let to the plaintiff by P., who had previously mortgaged them to the defendants, the trustees of a benefit building society, to secure payment of subscriptions, etc., which might become due from him to the society. The mortgage deed gave power to the defendants to distrain the goods of P., on the premises for arrears of subscriptions due to the society, as for rent due on a demise. The defendants distrained on the premises for subscriptions due from P., and seized the plaintiff's goods. The plaintiff replevied the goods, and recovered in the action of replevin, in the County Court, as damages, the amount of the expenses of the replevin bond. Having sustained further consequential damages by reason of the seizure of his goods, he subsequently brought an action of trespass in the superior Court to recover these damages, and also in respect of the trespass to the land:

Held, that the judgment in replevin was a bar to the action in respect of trespass to the goods, inasmuch as the special damage was recoverable in the action of replevin. And, with respect to the trespass to the land, that the judgment in replevin was no bar to the action; but that the defendants were entitled to the verdict on a plea of not possessed, inasmuch as they had done no act to recognize the plaintiff as a tenant: Gibbs v. Cruikshank et al., C. P., vol. viii., 454.

RIGHT OF PASTURAGE.

Immemorial Exercise of a Right-Presumption of legal Origin-Misdescription in ancient Documents. The corporation of a borough had from time immemorial exercised, by actual enjoyment by the free burgesses or by way of receipt of rent or acknowledgment, a right of pasturage for all cattle, sheep, and other commonable animals, levant and couchant within the borough, over lands in the neighborhood of the borough, during a certain season of the year, and there was no evidence that during such season the owners or occupiers of the lands in question, or any other persons, had exercised the right of pasturage over such lands. The corporation had, from the time of Henry VIII, from time to time exercised the right of releas ing for valuable consideration their rights of pasturage over portions of the lands subject thereto, still continuing to exercise their rights over the rest as before, without any resistance thereto upon the ground that the release of the part of the land extinguished the right as to all, which would have been the case with a mere right of common. In the releases and other deeds of conveyance made by the corporation in reference to their rights, they had always been described in terms which would be appropriate to rights of common strictly so-called:

Held (affirming the decision of the court below), that according to the principle of law, by which a legal origin is, if possible, to be presumed for a long-established practice, it must be presumed that what the corporation was entitled to was “sola

testure," or an exclusive right of pasturage over the lands in question, and not a right of common, which would have been extinguished by a release of part of the land, notwithstanding the description of the right as a right of common in a long series of documents: Johnson v. Barnes, C. P. (Ex. Ch.), vol. viii, 527.

RIGHT OF WAY.

P. was the owner of an inn, the yard of which was approached by a passage over adjoining property of M. P. and M. agreed to alter their boundary, and substitute a new passage for the old one. M., accordingly, in 1854, conveyed to P. a small strip of land reaching across the end of the new passage where it entered the yard, and granted to P., his heirs and assigns, "rights of way at all times and for all purposes along a passage intended to run between the piece of land hereinbefore conveyed and a street called the Tyrrels." By another deed P. released his rights of way over the old passage. The plaintiff was a lessee of the inn and yard under P. The defendants were tenants of M., occupying warehouses on his property, and the bill was filed to prevent the defendants from allowing carts and wagons to remain stationary in the passage in course of loading and unloading, so as to obstruct the access to the yard:

Held (affirming the decision of the Master of the Rolls), that the necessity of the business of the defendants did not give them any right to occupy the passage by stationary obstructions when any other person having a right of way required to pass:

Held, further, that the right of way was not a right in gross, but was appurtenant to the property occupied by the plaintiff, so that his lease gave him a right to the enjoyment of it.

Ackroyd v. Smith, (10 C. B., 164) explained.

The acts of several persons may together constitute a nuisance, which the court will restrain, though the damage occasioned by the acts of any one, if taken alone, would be inappreciable: Thorpe v. Brumfitt, L. J. J., vol. viii, 650, (Ch. Ap.)

SALE OF BUSINESS.

The defendant sold to the plaintiffs his news-agency business for £2500, payable by installments. The first two installments of £500 each were payable at all events, but the payment of the other two of £750 each was contingent on the profits of the business, and in the event of the profits of the business exceeding a certain amount, the defendant was to receive further benefits. The plaintiffs at the same time engaged the defendant to superintend their business, including along with the business sold certain other branches, for five years, at a salary; he undertaking to obey their directions. Within the first year the plaintiffs agreed with a company to discontinue the news-agency business, giving the company the option of continuing such parts of it as the company might elect to continue. The plaintiffs then directed the defendant to discontinue the transmission of news, and the defendant refusing to obey, they filed their bill for an injunction to restrain him from transmitting news, which injunction was granted:

Held (reversing the decision of Malins, V.-C.), that, as the purchase-money was to be ascertained by reference to the profits, there was an implied covenant by the plaintiffs that the business should be carried on, and that as the plaintiffs had broken this implied covenant, they were not entitled to restrain the defendant from breaking any other part of the agreement: Telegraph Despatch and Intelligence Company v. McLean, L. JJ., vol. viii, 658, (Ch. Ap.)