PUBLIC COMPANY.-Winding-up-Transfer-Contract-Company Act, 1862, s. 153.-Under the Company Act, 1862, the Court has a discretion to make valid any dealings with shares between the presentation of a petition for winding-up and the order made upon it; but held, reversing the order of the Master of the Rolls, that an agreement for the sale of shares in a company, entered into in ignorance that a petition for winding-up the company had been presented, was not enforceable or valid, so as to make the purchaser a contributory. (Emmerson's case, 30th June, 1865, L. R. 1 Ch. Ap. 433.)

PUBLIC COMPÁNY Authority of directors - Executed contract, 25 & 26 Vict. c. 89.-The following decision proceeded on the rule that a principal is bound, not merely by such acts of his agent as are within the scope of the agent's actual authority, but by such acts as are within the larger margin of an apparent or ostensible authority derived from the representations, acts, or default of the principal. It appeared that a company was incorporated under the 25 & 26 Vict. c. 89, the memorandum of association being signed by seven shareholders; no deed of association was filed and no other shares allotted; A. entered into an agreement to act as foreman of the "company's" works, which was signed by B. and C., two of the persons signing the memorandum of association, as chairman" and managing director," respectively. In an action by A. against the company for work done under the arrangement, held, that in the absence of evidence to the contrary, the jury were justified in presuming that B. and C. had authority to bind the company, as by clause 66 of the rules given in schedule A. of the 25 & 26 Vict. c. 89, the directors can fix the number who shall be a quorum, and they might, therefore, fix the number at two; and by clause 68 they can delegate their powers to committees of their own body. (Totterdell v. the Fareham Blue Brick and Tile Company, 9th June, 1866, L. R. 1 C. P. 674.)

66

PUBLIC COMPANY-Winding-up under the Companies Act, 1862, 25 & 26 Vict. c. 89-Amendment, adding a plea.-The following case (which is grounded on Penkivil v. Connell, 5 Ex. 381, and Healey v. Storey, 3 Ex. 3) shows what risk a person who is the member of a company runs by giving a bill or note for the debt of the company, signing as a committee-man, &c. It appeared that the defendants, who were members of an unregistered society enrolled and certified under the Industrial and Provident Societies Act, 15 & 16 Vict. c. 31, gave a promissory note in the following form for a debt of the society :-" Twelve months after date, we, the undersigned, being members of the executive committee, on behalf of the London and South-Western Railway Co-operative Society, do jointly promise to pay," &c. Held, that they were personally liable. After the making of this note the society was

registered under the Industrial and Provident Societies Act, 1862 (25 & 26 Vict. c. 87), and, after action brought, an order was obtained for winding it up under the Companies Act, 1862 (25 & 25 Vict. c. 89), and proceedings under that order were taken in the County Court. Section 202 of the Companies' Act, 1862, enacts that where an order has been made winding-up an unregistered company, no suit or other legal proceeding shall be commenced or proceeded with against any contributory to the company, in respect of any debt of the company, except with the leave of the Court. The plaintiff had not obtained leave to proceed. Held, that the omission to obtain such leave could not be taken advantage of by plea to the further maintenance of the action (which was not against the company nor against the defendant as a member of the company, but against him on his individual liability), but only, if at all, by application to the Court in which the proceedings under the winding-up order were being pursued. Quare, per Willes, J., whether the power of amendment at nisi prius extends to the allowance of such a plea. (Gray v. Raper, 24th May, 1866, L. R. 1 C. P. 694.)

PUBLIC OFFICERS-Liability of commissioners for a public purpose-Master and servant-Compensation or action-Jurisdiction of superior Courts where ousted.-In Com. Law Princ. 62, some cases are stated to the effect that trustees for public purposes are not responsible for injuries occasioned by the negligence of persons employed by them, but a case in the House of Lords (since followed in the Exchequer Chamber) has very much modified this doctrine. In Mersey Docks Trustees v. Gibbs (L. R. 1 Ho. Lds. 93, 5th June, 1866) the House of Lords decided that the principle on which a private person or a company is liable for damages occasioned by the neglect of servants, applies to a corporation which has been entrusted by statute to perform certain works, and to receive tolls for the use of those works, although those tolls, unlike the tolls received by the private person or the company, are not applicable to the use of the individual corporators or to that of the corporation, but are devoted to the maintenance of the works, and, in case of any surplus existing, the tolls themselves are to be proportionably diminished. In the following case in the Exchequer Chamber it appeared that, by an Act of Parliament, drainage commissioners were to make and maintain a cut and sluice; the sluice burst, owing to the negligence of the servants of the commissioners, and damage having ensued to the plaintiff's land, he brought an action against the commissioners in the name of their clerk. Held (overruling the judgment of the Queen's Bench), on the authority of the Mersey Docks cases (Mersey Docks Trustees v. Gibbs; Same v. Penhallow; Law Rep. 1 Ho. Lds. 93), that the commissioners were not exempt from liability by reason of their being commissioners for a public purpose; and that the duty being imposed upon them of

maintaining the sluice, they were liable for the damage caused by the negligent performance of that duty by their servants. By a section of the statute, if any person, after the commissioners or any person employed or authorised by them shall have begun to carry the statute into execution, shall sustain damage or injury in his lands or chattels by or in consequence of any act of the commissioners, their agents, workmen, or servants, the damage or injury shall be ascertained by a jury before the sheriff. Held, that the section applied only to damage resulting from acts authorised by the statute, but, assuming it to extend to unauthorised acts on a review of the statute, and inasmuch as the cause of action was for an omission or nonfeasance, it was not the subject of compensation within the section. Quære, whether the section would exclude the jurisdiction of the superior Courts in cases to which it applies. Semble, that it would. (Coe v. Wise, 14th June, 1866, L. R. 1 Q. B. 711.)

QUO WARRANTO-Void election--Resignation of office--Disclaimer--Practice--Costs.-The Court will make a rule for a quo warranto information absolute, although the defendant has resigned the office and his resignation has been accepted before the rule was obtained, where the object of the relator is not only to cause the defendant to vacate the office, but to substitute another candidate at once in the office; as in such case the relator is entitled to have judgment of ouster, or a disclaimer entered on the record. In making the rule absolute the Court will exercise a discretion as to costs. (The Queen v. Blizard, 24th Nov., 1866, L. R. 2 Q. B. 55.)

REWARD-Action for-Information "leading" to apprehension of offender-Remoteness of cause.-The following case may be found useful as to the common case of an advertisement offering a reward, and suggests the propriety of an alteration in the form of such an advertisement. The defendant's shop having been broken into, and watches and jewellery stolen, the defendant advertised: "A reward will be given to any person who will give such information as shall lead to the apprehension and conviction of the thieves." In about a week, R. having brought one of the stolen watches to the plaintiff's shop, the plaintiff gave information, and R. was apprehended the same day with another of the stolen watches upon him. After two or three days R., being in custody, told the police that some of the thieves would be found at a certain shop, and there they were apprehended a week afterwards and subsequently convicted. action by the plaintiff for the reward the jury having returned a verdict for the plaintiff, held (by Mellor and Shee, JJ., Blackburn, J., doubting), that the information given by the plaintiff was not so remote as that it could not be said to have "led" to the apprehension of the thieves; that the judge had properly left the evidence to the jury, pointing out the remoteness of the information. (Tarne v. Walker, 8th June, 1866, L. R. 1 Q. B. 641.)

In an

SHIP AND SHIPPING-Marine insurance-Suing and labouring clause " Particular average"-" Particular charges"-Warranty against particular average-Evidence of usage amongst underwriters. The examiners have asked questions as to the meaning of the term " particular average," and as it is not a matter very well known, the following case may be usefully read for preparation in answering similar questions. The ship Sebastopol, of which the plaintiffs were owners, was chartered for a voyage from the Chincha Islands to the United Kingdom, with a cargo of guano, at a freight payable on arrival at the port of discharge. The plaintiffs effected with the defendants a policy on the charter freight, which contained the usual suing and labouring clause, and the following warranty, "warranted free from particular average, also from jettison, unless the ship be stranded, sunk, or burnt." In the course of the voyage the vessel encountered a severe storm, and put into Rio, so damaged by perils of the sea as to be not worth repairing, and she was accordingly sold. The plaintiffs gave no notice of abandonment, but the guano having been landed and warehoused at Rio, the master procured another vessel, the Caprice, to carry it on to Bristol, for an agreed freight of £2467 11s. 10d., which the plaintiffs paid, receiving from the owners of the cargo the full charter freight. The master also incurred an expense of about £100 in landing, warehousing, and re-loading the guano at Rio. Held, that the plaintiffs were entitled to recover from the defendants, under the suing and labouring clause, the expenses so incurred and the freight of the Caprice, notwithstanding there had been no abandonment. Held, also, that evidence was admissible to show that, by the usage amongst underwriters, the term "particular average" does not include expenses which are necessarily incurred in order to save the subject matter of insurance from a loss for which the insurers would have been liable, and that these are usually allowed under the name of "particular charges." Held, also, that the occasion upon which these particular charges were incurred being such as to be within the suing and labouring clause, the application of that clause was not excluded by the warranty against particular average. (Kidston v. the Empire Marine Insurance Company, 8th May, 1866, L. R. 1 C. P. 535.)

STAYING PROCEEDINGS.-Till costs of former action paid. -Where a plaintiff having failed in an action, brings a second action for substantially the same cause, unless the plaintiff satisfy the Court that a real probable cause of action exists, the proceeding is so prima facie vexatious and harassing that the Court will stay the second action until the costs of the former action have been paid. The plaintiff brought an action of ejectment to recover toll-gates, &c., as executor of a mortgagee of the tolls of a turnpike road, in order to enforce payment, but was unable to produce the mortgage

deed, or prove the loss of it so as to give secondary evidence; and he was accordingly non-suited. He admitted at the trial (as the fact was) that the testator had been bankrupt. After the trial the trustees of the road obtained a new Act of Parliament, and inserted the testator's name in a schedule as mortgagee. The plaintiff then brought an action against one of the trustees, claiming a mandamus commanding the trustees to execute a fresh mortgage to the plaintiff as executor. Since the first action the plaintiff had become bankrupt. The Court were of opinion that the two actions were substantially the same, and that, under the peculiar circumstances of the case, the second action was vexatious, and stayed the proceedings till the costs of the action of ejectment had been paid. (Cobbett v. Warner, 22 Dec., 1866, L. R. 2 Q.B. 108.)

SURETY-Discharge of surety by alteration in the contractBond, divisibility of condition.-Where the principal, without the consent of a surety, makes a material alteration in the contract of the party whose acts are guaranteed, as by enlarging the time for doing an act, he releases the surety. In the following case it was held, that, where one enters into a bond as surety for the performance by another of two things which are separate and distinct, a subsequent alteration of the principal's contract as to one of them, without the surety's consent, does not release the surety from his contract of suretyship as to the other. By agreement between the plaintiff and S., the plaintiff agreed to purchase of S. the ship Devonport, the price being a sum of money, and the transfer to S. of the plaintiff's ship the Lord Dalhousie. The plaintiff also agreed to lend S. £6000 on mortgage of the Lord Dalhousie; and S. agreed to repair her, so as to class her eight years A 1 at Lloyd's; and also to do anything remaining to be done to the Devonport within two weeks after that ship's arrival in London. The defendant, as surety for S., gave his bond to the plaintiff, conditioned to be void if S. forthwith repaired the Lord Dalhousie, and if S., within the two weeks mentioned, did all that remained to be done to the Devonport. The plaintiff and S. afterwards, without the knowledge of the defendant, made another agreement, whereby the time within which the Devonport was to be completed was shortened, and more was to be done to her than was included in the original agreement. Held, that the conditions in the bond as to the Lord Dalhousie and the Devonport were separate and distinct; and that the defendant, though released (by the alteration made by the second agreement in the terms of the first) from his liability so far as related to the completion of the Devonport, was not released from his liability in respect of the Lord Dalhousie. (Harrison v. Seymour, 23 April, 1866, L. R. 1 C. P. 518.)

VENDOR AND PURCHASER.-Payment of purchase-money into Court.-Deterioration of property.-The following case is a good