K':r Ir^-' •r"l' ? *n. ^: \ rwA m^MMm^ mmmm^^^^f^ 'r,rsrsh^ ^t %i kaAAA£'cvcc'c^c>>A! kT*Ti Cornell University Library KD 1629.S65 1890 (v.1-21 A compendium of mercantile law / 3 1924 022 479 905 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022479905 (jJnrnFll ICaui i>rlynnl Hibrary A COMPENDIUM OF MERCANTILE LAW BY JOHN WILLIAM |^ITH, LATE OF TIIE INNEB TEMPLE, BSatJIEE, BAEEISTEE-AT-LAW. TENTH EDITION EDITED BY JOHN MACDONELL, M.A., A MASTEE OF THE SUPKEME OOUET OF JUDIOATUEE. ASSISTED BY GBOEGE HUMPHEEYS, B.A., OP TllK HIDDLR TEMPLE, ESQUIRE, n AUBISTEB-AT-L Aw. IN TWO VOLUMES. .f- Vol. I. \\r,' 'fT- ' LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE, TOEONTO: CAESWELL AND CO., 1890. LONDON : EEINTED BY 0. F. KOWOETB, OEEAT NEW STREET, FETTEE LANE — ^E.C. PREFACE TO THE TENTH EDITION. The best, perhaps the only satisfactory, Editor of a law book is its Author. Only he can deCfde with com- plete freedom what should be added or changed, and how and where the original plan should be modified. This difficulty is especially great in regard to " Smith's Compendium of Mercantile Law." From no other text book of modern times have judges oftener avowedly taken expositions of the law. Still more frequent are the instances in which important pas- sages in judgments are paraphrases of this " Com- pendium." How can the desire to preserve the text be reconciled with the fact that since 1843, the date of the last Edition which Mr. J. W. Smith supervised, there has been a multitude of decisions afPecting every chapter of the work, and many statutes altering or consolidating large portions of the lex mercatoria, have been passed ? Three solutions were possible : to leave the text intact, and to state in notes or appendices that it no longer expresses the law ; to insert in the text within brackets matter modifying it ; to endeavour to alter the work according to the plan of the Author. For the two first modes much may be said, and they may be applicable to certain treatises : they seemed to me to be totally unsuited to a work whole chapters of «2 iv PREFACE TO THE TENTH EDITION. which had been rendered obsolete by legislation. I have chosen the third mode, with a strong sense of the diflficulties attending it, and of my inability to en- tirely overcome them. The Author did not attempt to include all the authorities in the necessarily few pages in which he treated vast subjects ; he inserted, as a rule, references to important cases only. I have done the same. The preparation of this Edition has occupied con^^ siderable time. I have been prevented by other occu- pations from giving it continuous attention. This has had at least one advantage. The book has been tested in my own practice, and in that of my friends at the Bar ; many alterations have been made to remove shortcomings or clear up obscure points thus disclosed. To this Edition has been prefixed a short account of the history of Mercantile Law. Though brief, it may give information not readily procurable elsewhere. In the Appendix will be found, it is believed, the chief statutes relative to Mercantile Law ; and refer- ence is made to some statutes of less importance. I have received much valuable assistance from Mr. George Humphreys, Barrister-at-law, of the South Eastern Circuit. If this Edition has any merits, they are very largely due to him. The chapter upon Bankruptcy is in the main the work of Mr. E. W. Hansell, Barrister-at-Law, of the South Eastern Circuit. J. M. February, 1890. ADVERTISEMENT TO THE FIE8T EDITION. The idea of this work was suggested by Mr. Burton's Compendium of the Law of Real Property. The acknowledged utility of that book induced the Author to believe, that an attempt to compress the chief doctrines of an equally important branch of law into a Treatise of similar dimensions, might not prove alto- gether useless. The Mercantile Law is, is one respect, better adapted to such compression than the Law of Real Property ; inasmuch as the reasons upon which the former is based can be explained more shortly than those which support the latter. The reasons upon which our Law of Real Property is founded are, generally speaking, historical ; and part of history must, therefore, be recounted, in order to explain them clearly and philosophically ; while the Mercan- tile Law is deduced from considerations of utility, the force of which the mind perceives as soon as they are pointed out to it. For instance, if a writer were desirous of explaining why a rent-service cannot be reserved in a conveyance by a subject of lands in fee simple, he would be obliged to show the feudal rela; tions that existed between landlord and tenant, the nature of subinfeudations, and how the lord was injured by them in such his relation to his tenant ; VI ADVEETISEMENT. how the statute Quia emptores was enacted to pre- vent the injury, in consequence of which statute, a tenure, without which no rent-service exists, cannot be raised by a conveyance from one subject to another in fee simple. In like manner, the explanation of a recovery, of a fine, of a copyhold, of an estate in ancient demesne, of a uses, of a trust, would require a process of historical deduction. But when the reader is told that the drawer of a bill of exchange is discharged if timely notice be not given him of it^ dishonour, because, without such notice, he might lose the assets he has placed to meet it in the drawee's hands ; or, that if A. holds himself out as B.'s partner, he will be liable as such, because he might else enable B. to defraud persons who had trusted him upon the faith of the apparent partnership and joint respon- sibility: when these reasons, and such as these, are given, every man at once perceives their cogency, and needs not to be told how, that he may know why, the law was settled on its present footing. The fitness of this subject for compression is, therefore, hardly ques- tionable. The difficulty of compressing it is, however, extreme; the Author who attempts to do so, must continually keep in view a triple object, must aspire at once to clearness, brevity and accuracy; a com- bination so difficult, that its difficulty may, it is hoped, be fairly pleaded in excuse for some of the deficiencies and imperfections which the reader may discover in the following pages, and which would have been still more numerous but for the kind assistance of friends to whom the Author takes this opportunity of re- tm'ning his sincere acknowledgments. 30tt July, 4834. CONTENTS. PAGE VOL. I. TABLE OF CASES. ix iNTRODrCTION <. . . Ixiii BOOK I. OF MERCANTILE PERSONS. Chap. I. — Of Sole Traders 1 Cbap. II. — Op Partners 9 Chap. III. — Joint Stock Companies 58 Chap. IV. — Principal and Agent 115 BOOK II. OF MERCANTILE PROPERTY. Chap. I. — Incidents peculiar to Mercantile Property 181 Chap. II. — Shipping 187 Chap. III. — Goodwill and Trade Marks .... 212 Chap. IV. — Property in Negotiable Instrtjments . .217 BOOK in. OF MERCANTILE CONTRACTS. I. — Bills of Exchange and Promissory Notes . 221 II. — Contracts -with Carriers .... 301 TTT . — Contracts of Affreightment . . . 322 IV. — Maritime Insurance 394 V. — Life Insurance 491 VI. — Eire Insurance 602 Vn. — ^Bottomry and Eespondentia . . . .512 Till. — Contracts of Hiring and Serticb . . 520 Vlll CONTENTS. BOOK III. — continued. OF MBBCANTiLE CONTRACTS — Continued. PAGE Chap. IX. — Oonteacts with Seamen .... 528 Chap. X. — Contbaots of Appeenticeship . . . 561 Chap. XI. — Guaraitties . . " 667 Chap. XII. — Contbacts of Sale 596 Chap. XIII. — Conteacts of Debt 665 VOL. II. I BOOK IV. OF MERCANTILE REMEDIES. Chap. I. — Stoppage in transitu 683 Chap. II. — Lien 697 Chap. III.^BANKEirPTOY 709 APPENDIX OP STATUTES 795 INDEX 1225 INDEX OF CASES. Abbott v. Hendricks, 249 Abel V. Sutton, 46, 47 Abercom, Marquis of, Hx parte, 1 1 Abrahams v. Skinner, 231, 232 Abrath v. North-Eastem Rail. Co., 93 Abrey v. Crux, 229, 249, 289 Aoatos V. Bums, 199, 357, 358, 367 Aoebal v. Levy, 625, 660 Aoey V. Femie, 140, 498 Aohard v. Ring, 381 Aokerblom v. Price, 390, 391 Aokerman, Sx parte, 744 — V. Bhrensperger, 582 Ackroyd v. Smithies, 670 Adam's Policy Trust, In re, 494 Adam v. Newbigging, 10, 20, 21 — V. Richards, 640 Adams v. Baukhart, 35 — 1). Grane, 184 — ». Gregg, 292 — V. Mackenzie, 462 — V. Wordley, 256 Adansonia Fibre Co. , In re, 39 Addinell's case, 75 Addington, Hx parte, 786 Addison v. Gandaaequi, 149 Addlestone Linoleum Co., /« re, 74, 76, 76 Adie V. Western Bank of Scotland, 74 Adney, Hx parte, 570 Aflalo V. Fourdrinier, 746 African Steamship Co. v. Swanzy, 469 Agaoe, £x parte, 34 Agra Bank v. Leighton, 283 Aguilar v, Rodgers, 409, 486 AinsUe, In re, 619 Aitchison v. Lohre, 385, 434, 438, 474, 476, 477 Alabaster's case, 104 Alchorue v. SaviUe, 502 Alcock, Bx parte, 744 Alder v. Keighley, 764 Alderson v. Clay, 18 — II. Langdale, 290, 298, 672 — 1!. Pope, 17 Aldous V. ComweU, 291, 588 Aldridge «'. .Johnson, 610 Alers V. Tobin, 369 Alexander v. Alexander, 140 — V. Barker, 55, 166 — ^. Burchfield, 264, 265 — V. Campbell, 486 — V. Comber, 617 — i/. Dowie, 139 — V. Gardner, 615, 633 — *. Gibson, 141 — D. Mackenzie, 120, 255 — D, Sizer, 144 — V. Sonthey, 178 — V. Thomas, 226 — The, 517 Alexandra Palace Co., lie, 97, 108 Alhambra, The, 333, 336, 355, 307, 380 Alkin V. Wardle, 144 Allan V. Gripper, 689 — V. Lake, 646, 649 — V. Mawson, 229, 238 AUday v. G. W. R. Co., 314 Allen V. Bennett, 624, 627, 632 — V. Cameron, 659 — V. Coultart, 333, 355, 376, 380 — V. Edmundson, 274 — V. Kemble, 282, 296 — 1). Pink, 650 — ■„. Smith, 698, 706 — «/. St. Louis Bank, 144 AUeson v. Marsh, 556 Alliance Bank ». Kesirsley, 36 — Co., I/i re, 110 Allison V. Bristol M. I. Co., 368, 369, 390 Allkins V. Jupe, 132, 400 AUnutt V. AsJienden, 575, 580 AUoway v. Steer, 751 All-wood V. HenckeU, 470 Alma Spinning Co., In re, 80 Almada and Tirito Co., In re, 75, 76 Alner v. George, 681 Alsager v. Carrie, 750 — V. St. Katherine Dock Co., 375, 408 Alaop, Ex parte, 711 Alston V. Herring, 354, 366, 367 Alton V. Harrison, 715 Alves V. Hodgson, 232 INDEX OF CASES. Ambergate, N. B. and E. I. E.. Co. v. Coulthard, 81 Amicable Assurance Society i. Bolland, 496 Amner v. Clarke, 229 Amor V. Pearon, 523 Amos V. Temperley, 376 Ampthill, The, 209 Ancher v. Bank of England, 167 Anchor A. Co., In re, 63 Ancona v. Marks, 251 Andalusian, The, 196, 365 Anderson, Ex parte, 734 — V. Anderson, 137 — V. Cleveland, 292 — V. Edie, 493 — V. Fitzgerald, 496, 501 — V. Hayman, 572 — 4>. Morice, 403, 404, 405, 415, 419, 60S, 615 — V. Ocean SS. Co., 382, 391 — V. Pacific F. & M. I. Co., 478, 479 — V. Pitcher, 449 — V. Sanderson, 153 — 11. Thornton, 438, 480, 489 — V. Wallis. 467 Andre v. Fletcher, 489 Andrew's case, 106 Andrew v. Ellison, 502 Andrews, Ex parte, 746 — V. Franklin, 227 — V. Lawrence, 588 — V. Mellish, 419 — V. Moorhouse, 368 — V. Smith, 671 Angerstein v. Bell, 422 Anglo-Egyptian Co. v. Eennie, 613 Angus V. McLaohlan, 706 Annandale v. Harris, 285 — The, 188, 191, 196 Annapolis, The, 365 Annen v. Woodman, 455, 488 Anon. (2 K. & J. 441), 20 — (Ld. Eaym. 639), 651 — (Ld. Kaym. 738), 252 — (2 Mod. 100), 125 — (12 Mod. 416), 661 — (12 Mod. 514), 127, 144, 168 — (12 Mod. 659), 174 — (Salk. 117), 161 — (Salk. 280), 616 — (2 Shower, 283), 651 — (Skinner, 230), 208 — (Skinner, 243), 422 — (1 Vernon, 136), 177 — (2 Wils. 136), 723 Ansellj Ex parte, 769 — V. Baker, 684 Anstey v. Marden, 570 Anthony ». Halstead, 653 Apollo, The, 209 Appleby v. Biddulph, 226 — V. Dods, 561 Appleton V. Binks, 175 Aranguren v. Scholfield, 300 Arbenz, In re, 216 Arcangelo v. Thompson, 436 Arcedeckne, In re, 693 Arohard v. Horner, 522 Archer v. Baynes, 624 — ». James, 526 Arden v. Sharpe, 41 Argoa (Cargo ex), 357, 360, 369, 373, 379 Arkwright v. Newbold, 73, 74 Arlington (Lord) v. Merrick, 56 Armadillo, The, 514 Armistead v. Wilde, 126 Armitage, Ex parte, 728 — V. insole, 635 — V. Winterbottom, 34 Armory v. Delamirie, 660 Armstrong, In re, 6, 7 — V. Armstrong, 201 — V. Christiania, 270 — V. Lewis, 15 — V. Smith, 541 — V. Stokes, 161 Amal, Ex parte, 767 Amiaon v. Smith, 72, 74 Arnold v. Cheque Bank, 279 — V. Mayor of Poole, 118, 679 — V. Webb, 124 Arnott V. Eedfem, 676 Arthur Average Association, In re, 62, 64, 98, 397, 437 — V. Barton, 138 Artistic Printing Co., In re, 102 AruudeU v. Bell, 213 Ashbury E. C. & I. Co., v. Eiche, 65, 67, 78, 91, 163 — V. Watson, 65, 78 Ashbyj). James, 666 Ashcroft V. Morrin, 625 Ashdowm v. IngameUs, 763 Ashenden». L. &B. Ry., 311, 312, 314 Ashley v. Ashley, 493, 601 Ashmole v. Wainwright, 321 Ashpitelf. Bryan, 236, 279 Ashworth v. Stanwix, 43 Askew' s case, 104 Aspdin V. Austin, 664 AspinaU v. L. & N. W. Ey., 33 — V. Kokford, 704 Assop V. Yates, 524 Astbury, Ex parte, T!3 Astle V. Wright, 30 Astley V. Grumey, 749 — V. Johnson, 283 Atherfold v. Beard, 286 Atkin V. Acton, 822 Atkinson v. BeU, 609, 613, 617 — V. Denby, 168 — V. Elliot, 749 — V. Hawdon, 290, 672 — V. Mackreth, 43 — V. Eitohie, 366 — V. Stephens, 369, 433 Atkyns v. Amber, 170, 171 Atlantic, The, 652 Atlantic Mut Ins. Co. ,;. Huth, 199, 358 Attenborough v. Mackenzie, 256 INDEX OF CASES. Att.-Gren. r. Birkbeok, 245 — V. Brunnmg, 183 — V. Burgees, 43, 169 — V. Great Eastern Eail. Co , 65 — V. Hubbuck, 25, 183 — V. Eesby, 679 — V. Riddell, 43, 159 — V. Siddon, 43, 159 — V. Stannlforth, 43 — V. Weeks, 43 Attwood V. Crowdie, 264 — V. Munnings, 141 — V. Taylor, 676 Atwood V. Maude, 20, 30 — V. SeUar, 358, 382, 383, 388 Aubert v. Gray, 428 — V. Walsh, 489 Audain, Mx parte, 77 Audley v. Duff, 447, 486 Augusta, The, 617 Austin V. Boys, 213 — V. Drewe, 426, 608 — V. Eocles, 666 — V. Manchester, &o. Rail. Co., 309, 311 Australasia (Bank of) v. Breillat, 36, 37, 90 Australasian S. N. Co. v. Morse, 199, 358 Australian Direct S. N. Co., In re, 102 Australian Wine Importers, Limited, In re, 216 Austria (Emperor of) v. Day, 429 Aveson v. Lord Kinnard, 600 Axford V. Reid, 7 Ayerst v. Jenkins, 286 Aylett V. Harford, 741 Ayr Trustees v. Glasgow and S. W. Rail. Co., 317 Ayrey v. Fearnaides, 226 Azemar v. CaseUa, 660, 661, 665 B. Babcook v. Lawson, 601, 644 Bach V. Owen, 604, 605 Backhouse v. Hall, 56, 582 — V. Ripley, 415 Bacon v. Chesney, 686 — V. Searles, 290 Badeleyv. Consolidated Bank, 12, 13, 14, 590 Baggett V. Meux, 181 Baglehole v. Walters, 667 Bagnall v. Charlton, 73 Bagueley v. Hawley, 649 Bahia Rail. Co., In re, 86 Bailey v. Chadwiok, 131 — V. Edwards, 294 — V. Finch, 760 — V. Ford, 20 — V. Harris, 662 — V. Johnson, 760 — V. Macauley, 87, 137 — V. Porter, 266, 270 — V. Sweeting, 624, 625 | Baillie v. Kell, 523 — V. Moudigliani, 370, 416 BaUy, Ex parte, 75, 77, 104 Bain v. Brand, 185 Bainbridge, In re, 773 — V. Neilson, 427, 467, 474 — ■!>. Smith, 78 Bainesv. Ewing, 138, 139, 140 — V. Geary, 3 — V. Swainson, 145 — V. Wright, 736 Baird's case, 37 Baird v. Robertson, 178 Baker's case, 104 Baker, Exparte, 272 — V. Charlton, 33 — V. Denning, 228, 626 — V. Langhom, 128 — V. Walker, 671 Baldeyv. Parker, 619, 623 Baldwin v. Lawrence, 76 — J). L. 0. &D. R., 304 BaUe V. West, 129 Balfour v. Ernest, 91 Ball, Exparte, 600, 737 — v. Knight, 417 BaUam v. Price, 54 Balmain v. Shore, 183 Baltic Merchant, The, 652 Bamford, Exparte, 717, 719 — V. Baron, 712 — V. Shuttleworth, 178 Bampton v. Paulin, 672, 573 Banbury v. Lisset, 227 Banco de Portugal v. Waddell, 746 Bank of Australasia v. Breillat, 36, 37, 90 — Bengal v. Maoleod, 144, 252 — Canada v. Bradshaw, 124 — England v. Anderson, 242, 243 — — V. Johnson, 244 — — V. Newman, 672 — Gibraltar and Malta, In re, 112 — Hindustan, China and Japan, In re, 102 — — V. Smith, 688 — Ireland v. Beresford, 293 — Kentucky ». Adam's Ex. Co., 301 — London Ins. Ass., In re, 95 — — V. Tyrrell, 122 — New South Wales v. Owston, 138 — Scotland v. Christie, 22 Bankhead's Trust, In re, 774 Banks, Exparte, 766 — V. Colwell, 265, 286 — V. Crossland, 521 Bannatyne v. Direct Spanish Telegraph Co., 69 — V. Leader, 712 Banner, Exparte, 687, 734 Bannister v. Breslauer, 336 Barber, Exparte, 28, 723 — V. Dennis, 661 — V. Fleming, 402, 403 — V. Fletcher, 479 — V. Gingell, 137 — V. Meyerstein, 342, 345, 348, 349 Xll INDEX OF CASES. Barber v. Morris, 667 ' — V. Taylor, 129, 635, 641 Barclay, Ex parte, 268, 269, 773 — V. Lucas, 65 — ». Stirling, 452 Barden v. De Keverberg, 6 Bard-srell v. Lydall, 590 Barfoot v. GoodaU, 46 Baring v. Christie, 448 — v. Olaggett, 449 — V. Currie, 154, 167 — V. Day, 390 — V. Dix, 20 — V. Eoyal Ex. Ass. Co., 449 Barker ». Birt, 44 — V. Braliam, 179 — ». Goodair, 743, 744 — V. Harrison, 121 — V. Havens, 375 — V. Highley, 210 — V. Hodgson, 331 — V. Janson, 410, 411, 417 — V. M'Andrew, 330 — 1). Windle, 327, 371 Barlow, In re, 732 Barnard v. Adams, 382 Bame, In re, 710 Earned, Sx parte, 744 Barned's Banking Co., In re, 64, 68, 86, 94, 102 Barnes, Ex parte, 754 — v. Toy, 5 Bamett, Ex parte, Ibl, 752 — V. Brandon, 603 — V. Isaacson, 131 -^ V. Lambert, 44, 88 Bamewall, Ex parte, 744 Barney, Ex parte, 717, 718 Barr v. Gibson, 643 Barrett v. Button, 332 ; — V. Jenaj, 607 Barron v. Mtzgerald, 120, 141 Barrough v. White, 265, 285 Barrow's case, 76 Barrow, Ex parte, 17, 688, 689 — «. Arnold, 666 ^ V. Coles, 346 — i>. Dyster, 173 — Mutual S. Ins. Co. v. Ashbumer, 409 Barrow-in-Furness Co., In re, 106 Barry v. Amaud, 180 Bartholomew v. Freeman, 601 — 1). Markwiok, 658, 674 Bartlett, Ex parte, 738 — V. Pentland, 154, 156, 410 — V. PumeU, 630 Bartram v. Farebrother, 166 Bartrum v. Caddy, 254 Baiwiok v. English J. S. Bank, 152, 158, 169 Basevi v. Serra, 768 Bass, Ex parte, 746 Basset v. Dodgin, 293 Bastow & Co., In re, 102 Batardii. Hawes, 591, 592 Batavier, The, 365 Bateman v. Green, 346 — V. Joseph, 274 -, V. Mid Wales Eail. Co., 90, 93, 288 — V. PhiUps, 577 — V. Service, 64 Bates V. Hewitt, 480, 482 — V. Pilling, 180 Bateson v. Gosling, 64, 584 Bath's case, 88, 96 Bath, Ex parte, 741 Bathe's case, 83 Bathe v. Taylor, 444 Bateon v. Donovan, 303, 306 — V. King, 571, 672 Batten, In re, 726 — V. Wedgwood Coal and Iron Co., 110 Battheany v. Bouoh, 203 Battley v. Lewis, 44 Batty V. Marriot, 286 Baudier, Ex parte, 743 Bauerman, Ex parte, lib Baum, Ex parte, 737 Baumann v. Jones, 577 •Baxendale v. Bennett, 238, 239, 266, 267 — V. Great Eastern Rail. Co., 307, 310, 313 — V. Great Western Bail. Co., 315 — ■«. Hart, 310 — I/. London and South-Westem Kail. Co., 315 Baxter v. Burfield, 565 — V. Nurse, 521 — V. Pritchard, 713 Bayley v. Grant, 556 — V. Lloyd, 33 — V. Manchester S. & L. R. Co., 158 — V. MerreU, 652 — V. Schofield, 717, 718 — V. Wilkins, 133 Bayliffe v. Butterworth, 119, 133, 410 Bayly, Ex parte, 757 Beal 1). Mouls, 44, 88 — ». South Devon EaU. Co., 130, 314 — V. Thompson, 371, 373, 541 Bean v. Stupart, 445 Beard v. Webb, 6 Beardsley v. Baldwin, 226 Beattie v. L6rd Ebury, 73 Beauchamp v. Parry, 253 — V. Powley, 129 Beaujolais Wine Co., In re, 112 Beaumont r. Boultbee, 123, 132 — V. Brengerie, 622 — V. Eeeve, 286 Beavan ». Walker, 722 Beohervaise v. Lewis, 294, 588, 589 Beck's case, 75 Beck V. Eobley, 254 Beckett v. Addyman, 688 Beckham v. Drake, 35, 36, 764 Beckwaite v. Nalgrove, 481 Beckwith v. BuUen, 128, 398, 399 INDEX OF CASP:S. Xlll Beokwithv. Corral, 217, 252 — V. Sydebotham, 483 Bedford v. Deakin, 52, 293 Beech v. Jones, 589 Beecher v. Jones, 676 Beeohing v. Gower, 265, 267 Beer v. Loudon Hotel Co., 116, 629 Beeston v. Collyer, 620 Beeston Brewery Co. ji. Midland Hail, Co., 316 Behn v. Bumess, 169, 327, 336, 446, 478, 633 Behrens v. Great Northern Rail. Co., 307 Belcher v. Capper, 337 — V. Lloyd, 760 — V. Magnay, 770 Beldon v. Campbell, 138, 199 Belfast Banking Co. v. Doherty, 286 — and B. Bail. Co. v. Keys, 303, 306 Bell, Ex parte, 737 — In re, 122 — J). Banks, 684 — V. BeU, 417, 418, 483 — V. Blyth, 205, 208 — V. Bromfield, 460 — V. Buckley, 290 — V. Carey, 760 — ». Carstairs, 429, 459, 460, 479 — V. Gardiner, 283 — 1). Hobson, 418 — V. Jutting, 703 — V. Nixon, 465 — V. Phyn, 183 — V. PuUer, 336 — V. Eeid, 408 Belshaw v. Bush, 288, 290, 674, 675 Bennet, Ex parte, 736, 740 — V. Bayes, 167 — V. Davis, 768 Bennett v. Brumfltt, 627 Bens V. Parr, 656 Benson v. Bennett, 681 — V. Blunt, 332 — V. Chapman, 383, 468, 469 — V. Duncan, 199, 368, 359, 367, 383 Bentall v. Bum, 621 Bentham Spinning MiUs, In re, 83 Bentley's case, 106 Bentley v. Craven, 26, 121 — V. Vilmont, 600, 601 Benton e. Thomhill, 714 Benwell, Ex parte, 763 Benyon v. CressweU, 196, 201 -r V. Kennett, 336 Berens v. Eucker, 427 Beresford v. Browning, 31, 50 — V. Montgomerie, 361 Bergheim v. G. E. Rail., 302 Bermingham v, Sheridan, 83 Bermon v. Woodbridge, 487, 499 Bemardi v. Motteux, 449 Bernaseoni v. Farebrother, 718 Berndtson v. Strang, 688, 690, 692, 694 Bemina, The, 368 Bernstein v. Baxendale, 307 Berridge v. Fitzgerald, 274 Berridge v. Man On Ins. Co., 400, 410 Besant v. Cross, 229 Besoh V. Frolioh, 20 Best V. Sanders, 368 Bethell, In re, 224 — V. Clarke, 684, 689, 690, 691, 692 Betsy, The, 198 Betterbee v. Davis, 667 Betts V. Gibbins, 135, 643, 692 Bevan v. Lewis, 36 — V. Nvmn, 770 — V. Waters, 698, 701 Bevans v. Rees, 667 Beveridge v. Burgis, 274 Beverley v. Lincoln Gas Co,, 93, 669 Bex well jj. Christie, 119, 657 Beyon v. Godden, 210 Biocard v. Shepherd, 457 Bickerdike v. Bolhnan, 275 Bickerton v. Burrell, 172 Bidder v. Bridges, 670 Biddle v. Bond, 122 — V. Levy, 668 Biddlecombe v. Bond, 684 Bigg's case, 81, 82 Bigg V. Spooner, 717 Bigge V. Parkinson, 646 Biggs ». Bree, 43 Bignold, Ex parte, Ihi Bilbie v. Lumley, 477 Bilborough v. Holmes, 44 Billon V. Hyde, 140, 163 Bills V. Smith, 712 Birch's Legacy, In re, 769 Birch, Ex parte, 717 Bird V. Appleton, 449 — V. Bass, 753, 770, 771 — V. Bird's Patent D. Co., Ill — V. Boulter, 629 — V. Brown, 687, 693 Bire v. Moreau, 741 Birkley v. Presgrave, 381, 383, 386 Birkmyr v. DameU, 672 Birmingham and S. Gas Light Co., Ex parte, 757 BirreU v. Dryer, 409 Bishop, Ex parte, 689, 676, 777 — V. Chambre, 292 — V. Crawshay, 769 — V. Curtis, 251 — V. Hayward, 281 — V. Jersey (Countess of), 37 — V. Pentland, 441 — V. Rowe, 672 — V. Shillito, 604, 611, 672 Bittleston v. Timmis, 750 Bittlestone v. Cook, 713 Bize V. Dickason, 128 — V. Fletcher, 479 Black's case, 108, 110 Black f. ComeUus, 117 — V. Mar. Ins. Co., 450 — V. Smith, 669 Blackburn :;. Gregson, 755 — V. Haslam, 163, 486 — V. Scholes, 164, 166 XIV INDEX OF OASES, Blackburn v. Vigors, 1S2, 153, 396, 424, 478, 480, 485 — Building Society v. CunUffe & Co., 91 Blaokenhagen v. London Assurance Co., 420 Blackett v. Royal Ex. Ass. Co., 409, 414, 415, 442 Blaokhan v. Doren, 276 Blackhurst v. CockeU, 423, 445, 447 BlaoMe v. Pidding, 299 Blades v. IVee, 162 Blagdenw. Bradtear, 631 BlaUde v. Stembridge, 354 Blair v. Bromley, 43, 48 Blake, The, 562, 654 Blakeley Ordnance Co., In re, 82 Blakeney, The, 559 Blakeway and Thomas, Xn re, 767 Blakey ». Dixon, 368 Blanchet v. Powell's L. Colliery Co., 372 Blauchett, Ex parte, 720 Bland, Expa/rte, 698 Blandy v. AUen, 147 Blankensee v. L. & N. W. Ry., 307 Blanshard and others, In re, 209 Blasoo V. Fletcher, 160, 161, 371, 434 Blenkinsop v. Clayton, 623 Bligh ». Brent, 85 Block V. Bell, 224 — V. Homersham, 71 Blogg V. Pinkers, 285 Bloomer v. Bernstein, 639 Blower v. Great W. Ey., 304, 361 Bloxam v. Morley, 616 — V. Sanders, 613, 615, 640, 641, 685 Blooksome ». "Williams, 663 Black {;. Capstick, 30 — v, Gompertz, 577 Blyth, Ex parte, 746 Boaler v. Mayor, 584 Boardman «. SiU, 700, 705 Boast ». Krth, 527, 564 Bobbett i>. Pinkett, 280 Book V. Gorrissen, 697, 701 Boddington v. Castelli, 764, 767 — V. Schlenker, 265 Boden v. French, 127 Bodenham ». Purchas, 678 Boehm v. Campbell, 281, 232 Bold V. Eotherham, 422 — Bucoleugh, The, 707, 708 Boldero v. London and Westminster Dis- count Co., 714 BoUand, Ex parte, 716, 774 Bolognesi case, 102 Bolton V. Dugdale, 226 — V. Gladstone, 449 — V. Haiersden, 138 — V. Lancashire and Yorkshire Rail- way Co., 689 — V. Puller, 743 Bolton Partners v. Lambert, 164, 166 Bonaparte, The, 358, 515, 616 Bonar v. Macdonald, 583 Bonbouus, Ex parte, 42 Bond V. Gibson, 32, 37 — V. Gonsales, 452 — V. Nutt, 446 — V. Pittard, 10 Bondrett v. Hentigg, 462 Bonham, Ex parte, 734 Bonser v. Cox, 683, 587 Boone v. Eyre, 656 Boorman v. Brown, 127 — V. Nash, 615, 655 Booth V. Bank of England, 243 — v. G-air, 439 — V. Hutchinson, 749 Bordenave v. Gregory, 640 Bomman v. Tooke, 372 Borr V. VandaU, 133 Borradaile v. Hunter, 495, 496 Berries v. Imperial Ottoman Bank, 166 Borrowman v. Drayton, 656 — V. Free, 610 — V. Rossel, 632 Borthwick v. Evening Post, 214 Bosanquet, Ex parte, 34 — V. Dudman, 254 — V. Wray, 678 Bostock 4). Jardine, 119 Boston Deep Sea Fishing Co. v. Ansell, 522, 623, 624 Botoherby v. Lancaster, 712 Bothlingk v. Inglis, 688 Bottomley's case, 95 Bottomley v. Bovill, 419, 420, 430, 451, 452 — V. NuttaU, 37, 288 Boucher v. Lawson, 138 Bouillon V. Lupton, 446, 457 Boultbee v. Stubbs, 683 Boulton V. Arlesden, 133, 137 — V. Reynolds, 154 Bourdon v. Barkus, 26 Bourne v. Diggles, 130 — V. Gatliffe, 304, 360, 422 Bousfield V. Barnes, 490 Boutflower v. Wilmer, 431 Bowden v. Vaughan, 479 Bowen v. Bramidge, 715 — V. Morris, 174 — V. Owen, 668 Bowers v. Loveldn, 626 Bowes, Ex parte, 722 — In re, 700 — V. Foster, 770 — i>. Hope, &o. Ins. Society, 98 — ». Pontif ex, 622 — V. Shand, 640, 646 Bowker v. Burdekin, 712 Bowlby V. BeU, 84, 85, 619 Bowman v. Malcolm, 765 — V. Manzleman, 668 — V. Nichol, 291 Bowness, In re, 738 Eowring v. Shepherd, 119 Bowry v. Bennett, 661 Bowyear v. Pawson, 588 Bowyer v. Bampton, 287 Boyoe v. Warburton, 676 IXDEX OF CASES. XV Boyd V. Dubois, 426, 433, 483 — V. Emmerson, 273 — V. Moyle, 576 — «. SifEkin, 668 Boydell v. Drunuuond, 625 — V. M'Miohael, 773 Boyse, In re, 224, 226, 227, 231 Boyson v. Gibson, 207 Bozon V. Farlow, 213 Bradbury v. Morgan, 587, 588 Bradford v. Symondson, 486, 487 — V. 'WilUams, 334, 336 Bradlaugh v. De Rin, 232, 296, 297 — V. Newdegate, 286 Bradley v. Holdsworth, 86 Brady v. Todd, 140, 142 Bragg t). Anderson, 452 — V. Cole, 666 Branch v. Ewington, 663 Brandao v. Bamett, 217, 701, 702 Brandon, JEx parte, 717 — V. Nesbitt, 397 — V. Newington, 670 Brandt v. Bowlby, 401, 604, 611, 612 — V. Lawrence, 636, 637, 639 Brass i>. Maitland, 364, 367 Brawle v. United States, 636 Bray v. Fremont, 17 Brenan v. Currint, 700 Brereton v. Chapman, 333 Brett's case (L. E. 8 Ch. 800), 89, 106, 108 — (25 Oh. D. 283), 78 Brettel v. Williams, 34, 38 Brewer v. Dew, 763 — v. Sparrow, 163 Brewin v. Briscoe, 753, 771 — V. Short, 770 Bridger's case, 106 Bridgerv. Savage, 136 Bridges v. Berry, 672 — V. Garrett, 154, 156 — V. Hunter, 480, 483 Bridgman's case, Inteoditoiion, Ixxvii Bridport Brewery Co., Jnre, 109 Briggs V. Calverley, 666 — v. Merchant Traders' Association, 390, 415 — -0. Wilkinson, 210, 211 Bright, Ex parte, 115, 776, 776 — -u. Cowper, 370 — V. Hutton, 12, 87 Brighton Arcade Co, v. Dowling, 110 — Hotel Co., In re, 101, 103 — Eail. Co. V. Fairolough, 603 Bi-ill V. Crick, 229 Brind v. Dale, 302 f Brine v. Featherstone, 479 1 Brinamead v. Harrison, 603 Bristol and Exeter Bail. Co. ■;;. Collins, 305, 320 — (Earl of) V. Wilsmore, 644, 672 Bristow V. Eastman, 681 — V. Seoqueville, 232, 296 — «-. Taylor, 169 — V. Towers, 397 j Bristow V. Whitmore, 133, 163, 206 Britain v. Bossiter, 617 British Columbia Co. ». Nettleship, 364 British Empire Shipping Co. v. Somes, 698 British Equitable v. Great Western EaU. Co., 494 British Farmers' Cake Co., In re, 75 British Guardian Life Ass. Co., In re, 113 British Linen Co. v. Caledonian Ins. Co., 124 British Mutual Banking Co. v. Cham- wood Eail., 158 British Nation L. A. Ass., In re, 103, 110 British Seamless Box, In re, 73 Briton Medical Assur. Ass., In re, 96, 102 Britten v. Hughes, 285 Broad v. Thomas, 132 Broadhurst, In re, 722 Broadwood». Granara, 698 Brocklebaak, Ex parte, 722 — v. Moore, 588 — f. Sugrue, 433, 444, 445 Brocklehurst v. Lawe, 757 BroddeUus v. Grisohotti, 224, 231 Brodiew. Howard, 12, 210 Brogdeu v. Met. Eail. Co., 43 Bromage v. Vaughan, 270, 271 Bromley, In re, 773 — V. Goodere, 740 — V. Hesoltine, 397 — V. Holland, 161 — V. Williams, 30 Brook, Ex parte, 737, 740, 773 — V. Hewitt, 765 — V. Hook, 164 Brooke, Ex parte, 719, 754, 776 — V. Enderby, 46, 61 Brooking v. Maudslay, 499 Brooks V. Elkins, 225 — V. Haigh, 676 — V. Hassall, 142 Broom v. Broom, 183 Broome, Ex parte, 746 Broomfieldi!. Southern Insurance Co., 514 Broomhead, In re, 698 Brotherston v. Barber, 467, 474 Brough V. Whitmore, 408, 416 Brown, Ex parte, 37 — V. Aocrington C. S. M. & Co., 146 V. Andrew, 141 — V. Arundell, 184 — V. Bateman, 765, 612 — V. Brine, 286 — V. Byers, 40 — V. Oarstairs, 429 — V. Clarke, 768 — V. Croft, 132 — V. Dale, 24, 182 — V. Davies, 253, 285 — V. De Tastet, 31 — V. Duncan, 661 — V. Gibbins, 36 — V. Johnson, 333 — V. Kewley, 672 X71 INDEX OF CASKS. Browa v. Litton, 123 — V. MuUer, 665 — V. North, 344, 371 — I/. PoweU Coal Co., 340, 341 — V. Rivers, 284 • — !). Eoyal Insurance Co. , 509 — V. Rutherford, 223, 224 — V. Shevill, 184 — V. Stapylton, 384 — V. Tayleur, 418 — V. Vigne, 420 Browne v. Lee, 591 Browning v. Great Central Mining Co., ^3 — V. Kinnear, 274 — V. Provincial Ins. Co. of Canada, 55, 165 Bruce v. Garden, 493 — V. Hunter, 676, 677 — 11. Jones, 490 — V. Nioolopulo, 330 Brunswick v. Locke, 53 Bryan v. Lewis, 658 Bryans v. Nix, 342 Bryant ». Christie, 286 — V. Plight, 131 Brymer, Exparte, 738 Buchanan v. Pamshaw, 660 Buck V. Attwood, 557 — V. Rohson, 233 — V. Shippam, 706 Buckle V. Knoop, 372 Buckley, Exparte, 247 — V. Barber, 182 — V. Jackson, 250 Buckmaster v. Harrop, 631 Budd's case, 83 Budd, Ex parte, 82 — V. Fairmaner, 653, 654 Bufe V. Turner, 505 Bulkeley v. Lord, 586 — ». Sohutz, 64 BuUen v. Sharp, 10 Buller V. Harrison, 177 Buhner, The, 552, 553 Bult V. Morrell, 628 Bunney v. Poyntz, 373, 640, 643, 674, 692 Burbridge v. Morris, 87 Burdiok v. Garriok, 122 Burdon v. Barkus, 25, 26, 30 — V. Bentham, 260 — V. Burdon, 27 — V. Dean, 768 Burges v. Wickham, 456 Burgess v. Clements, 125 — V. Eve, 580, 588 Bnrgh v. Legge, 268 Burgoyne's Trade Mark, In re, 215 Burls ». Smith, 174 Bum, Exparte, 773 — V. Bentall, 634 — V. Burn, 50 — ■ V. Oarvalho, 756 — V. Morris, 163, 217 Bumand v. Rodocanaohi, 411, 461, 471, 603 Burnard v. Aaron, 43 Bumell?'. Bounce, 131 Bumes v. Pennell, 152 Burnett, Ex parte, 744 BurreH, Exparte, 747 Burrough ». Moss, 264 Burt V. Moult, 772 Burton, Exparte, 711 — V. English, 384, 388 — V. Pinkerton, 553 — ». Wookey, 26 Bushel V. Wheeler, 620, 623 Bushell, Exparte, 41 — v. Beavan, 325, 572 Busk V. Fearon, 516 — V. Eoyal Exchange Assurance Co., 426 Buss V. Gilbert, 741 Butcher or Butchart v. Dresser, 46, 182 — V. Stead, 716 Butler V. Hobson, 774 — V. Manchester and Sheffield Rail. Co., 302 — V. Wildman, 427, 433, 436 — V. Woolcot, 321, 693, 704 Butt V. Great Western Bail. Co., 309, 321 Butterffll, Ex parte, 734 Button V. Corder, 649 — V. Thompson, 562, 563, 554 Butts V. Swan, 233 Buxton V. Jones, 267 — V. Rust, 624, 625 Buzzard v. Fleoknoe, 254 Bwlch Y. P. L. M. Co. v. Baynes, 81 Byrne v. Pattison, 369 — V. Schiller, 368, 379, 384 Byrom v. Thompson, 291, 444 Bywater v. Richardson, 653, 667 C. Caohapool, The, 364 Cadiz Waterworks Co. v. Bamett, 101 Caerfilly Colliery Co, In re, 113 Caffrey v. Darby, 125 Cahen, Exparte, 711 Cahill V. Cahill, 6 — V. Dawson, 116 — V. London and North Western Rail. Co., 302, 306 Caine v. Coulton, 671 Calabar, The, 364, 365 Calder v. DobeU, 149 Caldicott, Exparte, 736, 749 Caldwell D. Ball, 345 Caledonian and Dumbartonshire Railway V. Helensburgh, JJ., 86 Oalland v. Lloyd, 177 Callander ». Howard, 666 — V. Oelrichs, 120, 126 Callo V. Brouncker, 522 Callonel v. Briggs, 655 Callow V. Lawrence, 264 Calvert v. Bovil, 449 — V. Gordon, 687 IXDEX OF OASES. XVU Calye's case, 125 Cama, Ex parte, 739 Cambefort v. Ohapman, 48, 49, 289 Cambridge v. Anderton, 465, 468 Camden v. Anderson, 407 — V. Cowley, 418, 421 Came v. Moye, Intkodtjoiion, Ixix., 395 Camelo v. Britten, 408 Camidge v. AUenby, 266, 672 Campanari v. Woodburn, 131, 160 Campbell v. Plemyng, 651, 658, 669 — V. Frenob, 235 — V. Innes, 428 — V. MaUett, 49 — V. Mersey Dock and Harbour Board, 610 — ». Eiokards, 481 — V. Thompson, 207, 369 — V. Webster, 275 Campion ». Colvin, 337, 375 Cannan v. Bryce, 134 — V. Denew, 770 — V. Meabum, 199, 368 — V. Wood, 770 Canning v. Farquhar, 499 Cannon v. Trask, 80 Cape Breton Co., In re, 121 Capital Fire Ins. Ass., In re, 100, 102 Ca/pital and Comities Bank v. Bank of England, 245 Capp V. Topham, 134 Capper's case, 104 Capper v. Desanges, 743 — V. Forster, 367 — V. Wallace Bros., 328, 333 Cardwell v. Martin, 291 Carew v. Duckworth, 275 Cariss ii. Tattersall, 292, 444 Oarlen v. Drury, 88 Carleton v. Lelghton, 762 Carlos V. Fanoourt, 223 Carlotta, The, 425 Carr v. Buidiss, 603, 713, 714 — V. Hinchcliffe, 166 — V. Jackson, 174, 175 — V. Lancashire, &o.,Eail. Co.,311, 321 — V. Montefiore, 418, 419, 483 — V. Royal Ex. Ins. Co., 450 — V. Taylor, 768 — V. Wallachian Co., 332 Carriage Co-operativeSupply Ass. ,/«»Y, 96 Carrington v. Roots, 569 Carruthers v. Gray, 429, 448, 460 ' — V. Payne, 775, 776 — I). Sydebotham, 441 Carstarrs v. Rolleston, 294 Carter, Mx parte, 746, 779 — V. Boehm, 478, 481, 482 — V. Breton, 769 — V. Burial Board of Tong, 666 — V. Flower, 275 — V. Taggart, 769 — V. Toussaint, 621, 623 — *. Whalley, 46 — V. White, 238, 268, 684 Cartwright, Bx parte, 770 S. — VOL I. Carvalho v. Bum, 767 Carvick v. Vickery, 247, 258 Cary v. Webster, 177 Case V. Davidson, 471 Cash V. Toung, 770 Cashbome v. Dutton, 225 Cashill V. Wright, 126 Cassaboglou ff. G-ibbs, 115, 120 Cassels v. Stewart, 18, 26 Castel «. Trechmann, 370 Castell, Ex parte, 748 CasteUaint;. Preston, 394, 395, 402, 471, 502, 503, 604 Castelli v. Boddington, 486, 490 Castilia, The, 653 Castle, Exparte, 776 — V. Sworder, 621 Castle Mail Packet Co., Ex parte, 726 Castling V. Aubert, 672 Castor V. Aickles, 662 Castrique v. Bemabo, 224, 276 — V. Buttigieg, 229 — r. Imrie, 449 Cathcart, The, 205 Catley v. Wintringham, 360 Catlini'. Bell, 116, 120 Oato V. Irving, 206 Caton V. Caton, 624, 626, 627 Cator V. Great Western Insurance Co., 424, 473 Catt V. Howard, 44 Catterall v. Hindle, 154, 166 Catton V. Simpson, 291 Caughey v. Gordon, 360, 368 Cauuce v. Spanton, 705 Caunt V. Thompson, 268 — V. Ward, 768 Cavendish-Bentinck v. Fenn, 121 Cawkell, Exparte, 712 Cawley & Co., In re, 80 Cazenove v. British E. A. Co., 495 Cecile, The, 513, 514 CeUa, The, 707, 708 Central R. Co. of Venezuela v. Kisch, 72, 73, 78 Chadwick v. Allen, 224 — V. Smith, 74 ChalUnor, Exparte, 624 ChalUs's case, 77, 106 Chalmers, Exparte, 615, 639, 640, 641, 755 — V. Lanion, 264 Chambers i<. Davidson, 700 — V. Griffiths, 656 — V. Manchester & M. E. Co., 90, 91 Champion v. Plummer, 625 — V. Short, 656 — V. Terry, 298, 299 Chandler, Exparte, 745 — V. Grieves, 522, 541 Chanter v. Hopkins, 634, 645 Chapel House Colliery Co., In re, 101 Chapleo v. Brunswick Building Society, 91, 140 Chaplin, Exparte, 711, 713 Chapman's case, 96 b SVUl INDEX OF CASES. Chapman v. Beach, 20 — ». Black, 286 — «. Callis, 201 — V. Frazer, 489 — V. Grwyther, 653 — V. Ke^ne, 165, 268, 269, 273 — V. Koopa, 24 — I'. Milvain, 244 — V. Morton, 656, 660 — i: Partridge, 629 — V. Shepherd, 102, 133 — V. Speller, 649 — V. Sutton, 576 — V. Walton, 120 — V. Withers, 651 Chappel V. Comfort, 350, 377 Chappell V. Bray, 209, 210 Chard v. Jervis, 785 Charles, Exparte, 722 — V. Blackwell, 170, 280 — V. Marsden, 253, 284 Charles Amelia, The, 707, 708 Charlotte, The, 389 Chamley v. Grundy, 299 — V. Winstanley, 161 Charrington v. Johnson, 165 Charter e. Trevelyan, 121 Chartered M. Bank of I. L. and China V. Dickson, 253, 266 — Merc. Bank of India v. Nether- lands I. S. Nav. Co., 326, 363 Chasoa, The, 363, 424 Chase v. Harrison, 700 — V. Westmore, 698 Chasteauneuf ». Capeyron, 202, 208 Chater «. Beckett, 573 Chaters ». Bell, 277 . Chatfield v. Cox, 579 Chattock V. Shaw, 496 Chaurand v. Angerstein, 478 Chavasse, lEx parte, 407, 737 Chawner v. Ciimmings, 526 Chedworth (Lord) v. Edwards, 123 Cheeok v. Roper, 261 Cheetham v. Ward, 54 Cheminant v. Thornton, 667 Chenoweth v. Hay, 717 Cherry v. ColonialBanfc of Australasia, 175 Chesterfield SUkstone Colliery Co. ■». Hawkins, 171 Chetah, The, 389 Chiohestet v. Cohh, 626 Child V. Morley, 134 Childers v. Bouiiois, 225 Chilton V. Carrington, 705 Chinery, Sx parte, 720, 721 Chippendale v. Tomlinson, 764 Chissum v. Dewes, 213 Chitty V. Selwyn, 417 Chohnley v. Barley, 229 Chowne v. Baylis, 600 Christian v. Coombe, 477 Christie, Exparte, 744, 760 — V. Lewis, 376 Christofierseu v. Hansen, 336 Christopher, The, 198 Christy V. Row, 369, 375 Chunder Sein v. Ryan, 146 Church V. Imperial Gas Light Co., 92, 93 Churlon v. Douglas, 212, 213 City Bank v. Barrow, 144, 145 — and County luTestment Co., In re, 111, 113 — of Chester, The, 389 — Discount Co. v. McLean, 678 — of Dublin S. P. Co. v. Thompson, 191 Clack V. Wood, 131 Clancy v. Piggott, 572 Clan Maodonald, The, 361 Clapham v. Langton, 456 Clapp V. Rogers, 46 Claridge v. Dalton, 293 Clark V. Blything, 508 — V. Crownshaw, 773 — V. Devlin, 292 — V. FeU, 707 — V. Gilbert, 764 Clarke v. Birley, 583 — V. Dickson, 74, 658 — V. Green, 586 — V. Hart, 82 — V. Hutchins, 665 — V. Leach, 23 — . Kemfrey, 631, 632 — V. Stirling, 236 Cowley, In re, 83 — V. Dunlop, 738 — V. The Mayor of Sunderland, 93, 130 Oowper V. Green, 706 — V. Smith, 584 Cox, Ux parte, 774 — -6/. Bruce, 340, 346 — V. G. W. Raa. Co., 625 — V. Prentice, 177 — V. Reid, 210 — V. Troy, 678 — V. WiUoughby, 23 Coxe V. Harden, 612 Coxon V. G. W. Rail. 306 Craig V. Phillips, 73, 108 Orauch v. White, 179 Crane v. London Dock Co., 598, 599 Cranley v. Hillary, 670 Cranston v. Marshall, 336 Crauford v. Hunter, 400 Craven v. Edmondson, 772 — V. Ryder, 612 Crawcour, JEx parte, 606 , — 1). Robertson, 612 — V. Salter, 606, 612, 773, 776 Crawford, Hx parte, 112 — i;. Stirling, 38, 42 Crawshaw ». Homstedt, 640 Crawshay v. Collins, 22, 30, 31 Crawshay v. Homfray, 641, 700 — V. Maule, 11, 20, 21, 22, 28 — ^. Thornton, 122 Cray o. Rooke, 285 Craythome». Swinburne, 592, 593 Crears ». Bumyeat, 576 — V. Hunter, 576 Credit Co., In re, 70 Green v. Wright, 520 GressweU v. Wood, 669 Criokmer's case, 105 Cripps V. Hartnoll, 671, 572 Crispin, Ex parte, 711, 716 Croft ». Alison, 158 — V. Lumley, 678 — V. Smallwood, 573 Cromwell v. Hynson, 276 Croookewit v. Fletcher, 335, 337 Crook V. Jadis, 252 Crooks V. Allan, 339, 362, 386, 388 Cropper v. Cook, 119 Cross V. Smith, 271, 274 Crossley v. City of Glasgow L. Ass, Co., 501 — V. Ham, 253 Crossthwaite, Ex parte, 719 Crouch V. Credit Foncier of England, Inteodtjotion, Ixv., 90, 217, 218, 220, 226 — V. Great Northern Rail. Co,, 319, 321 — V. Great Western Rail. Co,, 305, 320, 361 — ■„. L. & N. W. Rail. Co., 305, 321 Crow V. Clay, 672 — V. Falk, 328, 330 Crowder v. Austin, 657 Crowfoot V. Gurney, 226, 756 — V. London Dock, 770 Crowley's Claim, 135 Crowley v. Cohen, 401, 416, 476 Crowther v. Thorley, 64 Croydon Gas Co. v. Dickenson, 585 Crozier v. Smith, 369 Cruchleyji. Mann, 232 Cruikshauks v. Rose, 286, 680 Cruse V. Paine, 135 Crutwell V. Lye, 213 Cuckson V. Stones, 527 CuUen V. Butler, 329, 424, 431, 432 Culley, Ex parte, 722 Cumber v. Wane, 669 Cuming v. Brown, 346, 642 — V. Hill, 664 Gumming v. Bailey, 718 — V. Roebuck, 631 Cumpston v. Haigh, 699 Cunard v. Hyde, 407 Cundy V. Lindsay, 144, 697, 601, 644 — V. Marriott, 231 Cunliffe v. Booth, 252 — V. Harrison, 658 Cunningham v. Dunn, 331, 360 Curlewis v Corfield, 270 Curling v. Long, 371 INUKX OF CASES. XXI Curling v. Bobertson, 210 Currie, Ex parte, 106 — V. Anderson, 622 — ». Bombay Native Ins. Co., 402, 470 — V. Misa, 283, 288 Curtis' s case, 104 Curtis V. Barclay, 27 — V. Pugh, 651, 656 — V. Rush, 671 — V. 'Wiljiamson, 173 Cusack V. Bobinson, 622 Cust, Ex parte, 747 Cuthbert v. Gumming, 367 Cutler's Trust, In re, 768 Cutle V. North London By., 302, 313, 314- Cutter V. Powell, 541 Cyrus, Ex parte, 723 Czech V. G. S. N. Co., 329, 363 D. D'Abeidqecoxikt v. Ashley, 143 D'Aguilar v. Tobin, 454 D'Aquila v. Lambert, 684 D'Aro V. London and North Western Kail. Co., 303, 314 D'Aroy v. Tamar K. H. & C. R. Co., 94 X)a Costa v. Edmunds, 415 — V. Newnham, 381, 470, 471, 474 — V. Soandrett, 478, 480 Dahl t). Nelson, 331, 333, 355, 380 Dakin v. Oxley, 369, 370, 372, 373, 472 DalbyjJ. India and London L. A. Co., 491j 492, 493 Dale, Ex parte, 774 — In re, 88 — V. HaU, 304 — Vt Hamilton, 18 — V. Humfrey, 171, 173 JDalgleish f. Brooke, 460, 486 — V. Hodgson, 449 Dalton V. Irvin, 132 Daly V. Thompson, 86 Dalzell V. Mair, 437 Dance v. Girdler, 56 Dangerfield v. Wilby, C71 Daniel «. Cartony, 287 Daniels ». Harris, 456 Darbishire v. Parker, 265 Darby v. Darby, 25, 30 Darke V. Martyn, 124 Darlington Banking Co., Ex parte, 42 DarreU v. Tibbitts, 502, 603 Dartnall v. Howard, 130 Davey v. Maaonj 307 — V. Phelps, 671 David, In re, 84 — V. ElUoe, 62 Davidson, Ex parte, 226 — V. Bumand, 363, 424, 426, 433 — V. Cooper, 290, 588 Davidson v. Gwynne, 372 — V. Stanley, 137, 141, 142 Davies' case, 86 Davies v. Davies, 2, 3 — V. Dodd, 300 — V. Game, 183 — V. Hawkins, 63, 210 — ff. Humphreys, 589, 592 — v. Jenkins, 241 — v. London and Provincial Ins. Co., 686 — V. McLean, 634, 635 — V. Richards, 568 — V. Stainbank, 294, 583 — ■!/. Vernon, 179 — V. Wilkinson, 228 Davis, Ex parte, 562 — V. Clarke, 239 — V. Garrett, 126, 303, 356 — V. Gyde, 671 — V. James, 319, 320 — V. Johnson, 209 — *. Jones, 249 Davison v. Donaldson, 150 — V, Farmer, 244 — ». Von Lingen, 327 Davy V. Milford, 473 Dawe V. Holdsworth, 678 Dawes' case, 105, 107, 109 Dawes, Ex parte, 763 — V. Peck, 319, 621 — V. Pinner, 677 Dawkes v. Deloraine, 226 Dawson, Ex parte, 777 — V. Atty, 152, 460 — V. Chamney, 125 — V. CoUis, 651, 655 — V. Wrench, 439 Day V. MoLea, 670 — V. Nix, 284 — V. Searle, 557 Deacon v. Stodhart, 256, 290 Dean v. Allaley, 1 85 — V. Hogg, 337 — V. Hornby, 426, 427 — V. James, 667 — V. Macdowell, 26 — ». NewhaU, 54 Dear, Ex parte, 50j 744 Dearie, Ex parte, 720, 722, 725 De Begnis v. Armistead, 662 Debenham v. Mellon, 143 De Berkom v. Smith, 16 De Bouohot v. Goldsmid, 144 Debrecsia, The, 557 De Bussohe v. Alt, 116, 117, 122, 130 De Comas v. Prost, 160 Deeks ». Stanhope, 29 Deering i>. Wiuohelsea, 591, 592 Deeze, Ex parte, 702, 749, 750 DefBe v. Desanges, 717, 743 De GaiUon v. L'Aigle, 173 De Garay v. Claggett, 447 De Garron v. Galbraith, 477 Degg V. Midland BaU. Co., 524 D'Eguino V. Bewioke, 447 ^xu INDEX OF CASES. ])e Hahn v. Hartley, 445 Dehera v. Harriott, 224, 252 De la Chaumette *. Bank of England, 248 297 Delaney ». 'Wallis, 598, 599 Delany v. Stoddart, 452, 454 De la Torre v. Barclay, 293 Delhasse, Hx parte, 14 Delmada v. Motteux, 407 De LoTio V. Boit, Intbod., Ixvii., Ixxv., ' Ixxvi. Demandray v. Metcalfe, 755 De Mattos v. Gibson, 206, 207 — ■„. North, 400 — ■<-. Saunders, 440, 441, 462, 463, 750 Denaby Main Colliery Co. v. Manchester, &c. Ky., 316, 318 Denew v. Daverell, 132 Denham's case, 722 Denoon v. Home and C. A. Co., 411, 415, 476 Dent V. Dunn, 680 — V. Smith, 434, 445, 479 Denton v. Eodie, 36, 37 DenysBeu'v. Botha, 141, 152 De Paix's case, 82 De Pass' case, 85 De Pass v. Bell, 750 De Eothsohild v. Eoyal M. S. P. Co., 363 Derry *. Mazarine (Duchess), 241 De RuTigne's case, 78 Desborough v. Curlewis, 499 Deslandes v-. GSiegory, 173, 175, 176 De Symonds v. Minchwick, 658 De Tastet, JEx parte, 744 — V. Baring, 282 Deuters v. Townsend, 254 Devaux». Conolly, 129 — V. I'Anson, 402, 415, 433 — ». Salvador, 434, 436 — V. Steele, 403, 406 — V. SteinkeUer, 595 Devaynes v. Noble, 49 De Wahl V. Braune, 6 Dewdney, Hx parte, 737 De Wolf V. Archangel M. B. & I. Co., 417 Diana, The, 364 Dioken, Bx parte, 755 Dickenson v. Grap, 653 — V. Jardine, 386 — V. Kitchen, 205 — V. Lilwall, 163, 631 — V. Shee, 667, 669 — V. Teague, 224 Dickinson v. Marrow, 675 — ». Valpy, 16, 40, 44 Dickson, In re, 762 — V. Cass, 761 — ». Great N. Ey., 301, 312, 314, 316 — V. Eeuter's Tel. Co., 169 — V. Zizinia, 645 Digge's case, 161 Diggle V. Higgs, 161, 179 Dillon V, Cunningham, 786 Dimeoh v. Corlett, 326 Dingle v. Hare, 136, 137, 142 Dingwall v. Dunster, 292 Diplock V. Blackburn, 123 Dirks V. Eiohards, 705 District Bk., Hx parte, 739 Ditton, Bx parte, 726, 742 Dixon, Exparte, 118, 142, 166, 167, 726 — In re, 47, 746 — .„. Baldwin, 689, 691 — V. Bofill, 220 — V. Clarke, 666, 670 — V. Ewart, 161 — V. Hatfield, 671 — V. London Small Arms Co., 696 — ». NuttaU, 227 — V. Eeid, 430, 462, 468 — V. Sadler, 363, 424, 456 ■!- V. Stansfield, 135, 703 — V. Whitworth, 476 — V. Yates, 606, 641, 643, 692, 694 Dobbyn v. Comerford, 207 Dobell V. Hutchinson, 677, 656 . — V. Stevens, 663 Dobie V. Larkan, 666 Dobson V. Sotheby, 505, 606 — V. Wilson, 385, 386 Docker v. Somes, 123 Dodsley V, Varley, 641 Dodson Vi Wentworth, 689 Doe V. Sunmiersett, 166 — V. Thorn, 601 — V. Walters, 165 — d. Lyster v. Goldwin, 165 — d. Manvers v. Mizen, 141 — d. Pitt 1. Laming, 606 — d Ehodes v. Eobinson, 116 — d. Shaw V. Steward, 768 Dolman v. Orchard, 39, 45 Domett V. Beckford, 375 Dominion of Canada Plumbago, In re, 110 Donald v. Suckling, 602, 614, 697, 706 DoneUau v. Eead„ 616 Doolan». Midland Eall., 305, 307, 309, 312 Doorman v. Jenkins, 129 Dorman, Exparte, 774 Domford v. Domford, 740 Dossett V. Harding, 244 Doubleday ». Muskett, 86 Dougan's case, 77 Doughty V. Pirbank, 525 Douglas V. Holme, 666 — V. Patrick, 669 Douthat, Exparte, 723 Dowdale's case, Intkoduction, Ixix, Down V. Hailing, 217 Downes v. Eiohardson, 291, 292 — V. Ship, 104 Dowmuan v. Williams, 176 Dowthorpe, The, 618 Doyle V. Anderson, 490 — «. Dallas, 468 — V. Douglas, 490 — V. Powell, 420 Draoaohi ». Anglo-E. N. Co., 345 Drake, Exparte, 603 INDEX OF OASES. XXIU Drake v. Mitchell, 671 Draysen v. Home, 308 Dresser v. Bosanquet, 702 — V. Norwood, 152, 166 Drew V. Bird, 375 — ii. Nunn, 139, 161, 162 Drinkwater v. Groodwin, 166, 171, 703 — V. London Ins. Co., 508 Driscol V. Bovil, 454 — V. Passmore, 451, 464 Dronfield SUkstone Coal Co., In re, 69, 1 10 Druid, The, 707 Drummond v. Van Ingen, 645, 647, 648 Drury v. Defontaine, 662 — V. Macaulay, 226 Dry V. Davy, 56 Drysdale v. Piggott, 493 Ducarrey v. Gill, 63, 141 Duchess of Kent, The, 654 Duokett V. WiUiams, 495 Dudgeon v. Pembroke, 426, 458, 459, 460 Dudley v. Vaughan, 718, 719 Duf aur v. Professional Life Ass. Co., 498 Duff's Executors' case, 53, 76 Duff V. M'Kenzie, 473 Duffell V. Wilson, 478 Dufouroet v. Bishop, 379 Dugdale v. Lovering, 135 Duke's case, 67 Duke of Bedford, The, 514 Duncan v. Benson, 615 — V. Hill, 135 — V. Lowndes, 42 — Fox & Co. V. N. & 8. Wales Bank, 281, 293, 294, 296, 688, 689, 593, 739 Dunoombe v. Brighton Club Co., 676 Duncuft V. Albrecht, 619 Dunlop V. Grdte, 655 — V. Higgins, 624 — V. Lambert, 320, 611, 642 — V. Waugh, 649, 663 Dunmore v. Taylor, 603 Dunn's Trade Marks, In re, 215 Dunn t: O'Keefe, 264 — V. Sayles, 564 Dunne v. English, 121, 123 Dunston v. Imperial Gas Light Co. , 92 Dnppa V. Mayo, 618 Durham (Mayor of) v. Fowler, 583, 586 DurreU v. Bederley, 480, 481 — V. Evans, 627, 629, 630, 633 Duthie V. Hilton, 359, 369, 370, 373 Duttbn V. Marsh, 144, 239 — V. Morrison, 712, 743, 744 — V. Powles, 354 — V. Solomonson, 319 Duvergier v. Fellowes, 15 Dwyer v. Edie, 493 Dyer, £x parte, 776 — V. Ha.rgrave, 652, 657 — V. Pearson, 137 Dyke v. Brewer, 44 Dyson v. Rowcroft, 465 E. Eaedlby v. Price, 522 Earie v. Rowcroft, 430, 431 Early ». Garret, 667 Easley «. Crookford, 217, 252 East & W. I. Dock Co. v. Hill, 586 — V. SaviU, 317 Easterbrook v. Barker, 13, 175 Eastern Rail. Co. v. Symonds, 71 East India Co. v. Paul, 634 Eastwood V. Brown, 714 — V. Kenyon, 569, 671, 577 Easum v. Cato, 749 Eaton V. Bell, 174 — V. Western, 565. Ebbett's case, 15 Ebbw Vale Co.'s case, 69 Eberles' Hotels & R. Co. i-. Jonas, 603, 634, 749 Ebsworth v. AlUanoe M. I. Co., 207, 402, 403, 504 Eokhardt v. Wilson, 712, 743 Edan v. Dudfield, 621, 623 Eddie v. Davidson, 743 Eddowes v. Hopkins, 676 Eden v. Parkinson, 448, 652 Edgington v. Fitzmaurice, 78 Edie V. East India Co., 219 Edis f. Bury, 224 Edmiston v. Wright, 134 Edmonds v. Robinson, 31 Edmunds V. BusheU, 32, 136, 138, 141 — V. Groves, 284 Edmundson v. Blakey, 46 Edward Hawkins, The, 389 — V. Trevellick, 563 Edwards' Trade Mark, In re, 215 Edwards, Hx parte, 130, 734, 772 — V. Aberayron Mut. Ins. Co., 409 — i). Baugh, 575 — *. Brewer, 685, 686, 689 — V. Buchanan, 244 — *. Dick, 288 — V. Footner, 479 — V. Glynn, 712 — V. Hall, 84 — V. Harben, 714 — V. Hodding, 179 — V. Kelly, 572, 573 — V. Scott, 773 Egerton v. Mathews, 625 Ehins V. Maclish, 220 Eioke, & parte, 741 — V. Meyer, 131 Elbinger Action Gesellschaft v. Claye, 151, 173 Eley V. Positive Ins. Co., 88, 628 Elibank v. Montolieu, 768 Elin, The, 557 Eliza, The, 615, 518, 535, 562, 553 Elkin V. Baker, 750 — V. Janson, 480, 499 Elkington's Case, 104 Ellen V. Topp, 561, 563 XXIV IXDEX OF CASES. Ellershawj). Magniao, 343, 348 Elliot «. Davies, 33 — V. TjhvLS, 617 — V. Thomas, 623 — V. Von Glehn, 336 — V. Wilson, 451 Elliott V. Browne, 183 — «. Dean, 625 — ff. Royal Ex. Ass. Co., 490, 502, 606 — V. Turquaad, 161, 762 Ellis, Sx parte, 713, 746 — V. EUis, 225 — V. Emmanuel, 588, 590, 739 — V. Hunt, 642 — 1!. Mason, 225 — V. Sohmseok, 86 — V. Silber, 728 — V. Thompson, 636 — V. Turner, 139, 141, 303 Ellison V. CoUiagridge, 224 — V. DezeU, 293 EUston V. Deacon, 42 - Elmore v. Kingsoote, 626, 660 — 1). Stone, 621 Elphiok V. Barnes, 606, 612, 651 Elsee V. Gatward, 129 Elsworth V. Woolmore, 535 Elton, ^x parte, 744 — ». Brogden, 454 — i\ Larkins, 480, 482 Elves V. Croft, 2, 214 Elwes V. Mawe, 185 — V. Vaughan, 663 Elworthy v. Maunder, 586 Emancipation, The, 513 Emanuel v. Dane, 650 Emden v. Carte, 765 Emerson's case, 84, 102 Emerson v. HeeHs, 629 EnJy, Hx parte, 37, 747 — V. Collins, 233 Emma SUver Mining Co. v. Orant, 121, 738, 788 — • — 1/. Lewis, 73 Emmens v. Elderton, 163 Emmerton v. Mathews, 645 Empress Engineering Co., 88, 164 Energie, The, 359, 360, 361 Engelback v. Kixon, 602 England v. Curling, 28 English Joint Stock Bank v. Darley, 293 Ennis & W. Clare E,y., In re, 62 Entwistle v. ElUs, 416, 443, 473 Eriohsen e. Barkworth, 332 Erlanger «. New Sombrero Co., 73 Ermatinger v. Gugy, 125 Ernest v. NiohoUs, 91 EsdaUe v. La Nauze, 136, 141 Esliok, In re, 776 Esparto Trading Co. , i» re, 82 Esposito V. Bowden, 6, 407 Ess V. Truscott, 116 EsseU it. Hayward, 20 Estwiok t). CaUlaud, 715 European Arbitration, In re, 99 European Ass. Society, In re, 684 — and Australian K. M. Co. v. Koyal S. P. Co., 205 _ Bank, Hx parte, 260 _ —In re, 285 — Central RaU Co., In re, 741 Eustace v. Dublin T. C. K. Co., 105 Evan's case, 105 Evans, Ex parte, 730 — t). Bignold, 492 — ». Bremridge, 583 — V. Collins, 654 — ®. Drummond, 46, 53 — 'V. Duncombe, 568 — V. Evans, 176 — V. Hallam, 771 — V. Hooper, 170 — V. JudMns, 667 — V. Martlett, iNTEODTJonoN, Ixxxii, — V. Boe, 521 — V. Truman, 146 — V. Whyle, 586 — V. WiUs, 785 — V. Wood, 83 Everett v. Desborough, 500 — V. London Abb. Co., 508 Everth v. Smith, 474 Ewin V. Lancaster, 290, 294 Ewing V. Ewing, 31 Exchange NationalBankf . Third National Bank, 126 Exeter, The, 652 Express, The, 328, 356 Eyre v. Bartrop, 583 — V. Glover, 401, 415, 486,-487 — n. WaUer, 300 F. Faiebeidqe v. Pace, 366 Eairlie v. Fenton, 171, 172, 175, 630 — V. Hastings, 153 Pairman v. Oakford, 620, 521 Fairthome v. Weston, 30 Falk, JSx parte, 643 — i: Fletcher, 344 Falke v. Scottish Imperial Ins. Co., 601 Falkener ». Case, 773 Falkner v. Ritchie, 467 Family Endowment Society, /« re, 44, 53, 97 Panohon, The, 205 Eaneourt v. BuU, 217 — V. Thorne, 228 Panshawe v. Peet, 267 Farina v. Home, 621 Paris, Hx parte, 84 Parlow, Ex parte, 744 Farmer v. Robinson, 159 Famsworfch v. Garrard, 659 Farnworth v. Hyde, 462, 465, 466, 468 — V. Paokwood, 126 Farquhar v. Hadden, 24 — V. Southey, 291, 292 Parr v. Pearce, 213 Parraut v. Barnes, 364, 367 Farrar v. Adams, 361 INDEX OF CASES. XXV Farrar v. Beswiok, 24 — t), Deflinne, 46 — V. Hutchinson, 681 Farrow v. Wilflon, 23, 527, 664 Fanre Electric Aocunmlator Co., In re, 80, 113 Faveno v. Bennett, 154, 680 Favourite, The, 667, 658 Fawoett v. Cash, 620 — V. Fearne, 771 — V. Whitehouae, 26 Fawous, In re, 135, 775 — V. Sarsfield, 433, 460 Feam v. Filica, 141 Feamly v. Wright, 770 Feast, M parte, 720 Featherstonhaug'h v. Fenwiok. 18, 21, 26, 30 Feise v. Wray, 686, 687 FeUx, The, 347 Feltham v. England, 624 Felthouse v. Bindley, 624 Fenn v. Craig, 499 — V. Harrison, 140, 141, 672 Fennell v. Ridler, 662 Fenner v. Taylor, 769 Fenton ti. City of Dublin Steam Packet Co., 337 — V. Pooock, 294 Fenwiok v. Sohmalz, 331 Fereday v. Hornederne, 1 Ferguson v. Carrington, 658 Fergusson v. Fyffe, 677 — V. Norman, 663 Feronia, The, 206 Ferrall v. Alexander, 770 Ferrers (Earl) v. Eobins, 127 Ferris v. Bond, 239 Fewings, Hx parte, 741 — V. Tisdal, 622 Field, Fx parte, 746 — V. M'Kenzie, 244 — V. Robins, 54 Fielder v. Marshall, 238 — V. Starkin, 660 Fillieul V. Armstrong, 523 Financial Corporation, In re, 60, 105 Finch V. Boning, 669 — ». Brook, 667 — V. Miller, 667 Findon v. M'Laren, 184 Fine Art Society «. Union Bank of London, 220 Finlay v. Liverpool & Or. W. S. Co., 328, 362 Firbank v. Bell, 233 Firbank's Executors v. Humphreys, 174, 177 Firth V. Thrush, 274 Fishi". Hutchinson, 670 — V. Kempton, 155 Fishery. Boucher, 717, 718, 719 — 1/. Cockrane, 446 — V. Leslie, 224 — V. Liverpool Marine In. Co., 409, 443 * Fisher v. Ogle, 449 — 1). Smith, 700 Fisk V. Mastennan, 486 Pitch V. Jones, 286, 663 Fitzgerald v. Dressier, 120, 164, 673 — V. Williams, 275 Fitzherbert 1). Mather, 152, 480 Fivaz ». Nicholls, 286 Flad Oyen, The, 197 Flatau, In re, 734 Fleet*. Murton, 167, 171, 173, 176 Fleming v. Simpson, 284 — V. Smith, 465, 466, 469, 470, 471 Fletcher, ISx parte, 752, 774 — V. Alexander, 385 — V. Bowsher, 653 — V. Gillespie, 367 — V. Heath, 147 — V. Inglis, 425 — V. Walker, 124 Flight V. Booth, 656 — V. Maclean, 236 — V. Reed, 286 Flindt V. Scott, 459 — V. Waters, 397 Flint V. Flemyng, 402, 415 — ij. Woodin, 657 Flitcroft's case, 71, 76, 113 Florence, The, 540 Flower v. Herbert, 722 — V. Sadler, 286 Flowers v. 8. E. Rail. Co., 307 Foakes v. Beer, 669 Foley V. HiU, 665, 669 — V. MoUue, 483 — V. United F. & M. I. Co., 402 Forbes v. Aspinall, 402 — V. Jackson, 589 — V. Marshall, 90 Ford, Hx parte, 720 — V. Beech, 229, 289 — V. Cotesworth, 331, 360, 367 — V. Hopkins, 220 Foreman v. Mayor of Canterbury, 157 Fores r. Johnes, 661 Forest of Dean Mining Co., In re, 80, 113 Forraan v. Homfray, 29 — V. Wright, 284 Forrester v. Pigou, 479 Forshaw v. Chabert, 454, 456 Forster v. Christie, 429, 468 ■ — V. Clements, 124 — V. Mackreth, 40 — V. Wilson, 667, 750, 761 Fort V. Lee, 483 Forth V. Simpson, 698, 699, 701 Fortuna, The, 378 Forward v. Pittard, 301 Forwood V. N. Wales Mutual Mar. Ins. Co., 462, 467 Foster, Ex parte, 719 — V. Colby, 374, 377 — V. Dawber, 292 — V. Frampton, 622, 689, 693 — i\ Jolly, 229, 289 — V. Mentor L. A. Co., 495 ■ XXVI INDEX OF CASKS. Foster v. Pearson, 119 — V. Smith, 651 — V. Steele, 490 — V. Stewart, 561 — V. Wilmer, 453 Fothergill's case, 106 Foiilkes V. Midland Eail. Co., 305, 352 Formtaine v. Carmarthen Bail. Co., 91 Fowkes V. M. & L. Ass. Association, 496, 600 Fowler v. E. & S. M. I. Co., 428, 474 — V. Knoop, 348, 360 — V. Padget, 717 Fowles V. Great Western Rail. Co., 305 Fox's case, 75 Fox, Ex parte, 112, 739 — V. Black, 451 — V. Clifton, 17, 44, 86 — V. Frith, 44, 227 — V. Hanbury, 21, 743 — V. Nott, 348, 375 Foxley, Ex parte, 711 Foy V. Bell, 437 Fragano v. Long, 615, 633 France v. Clarke, 86 Francesco v. Massey, 336 Francis, Ex parte, 690 Franoonia, The, 191, 365 FranWand v. M'Gusty, 42 Franklin v. Hosier, .698 — V. Neate, 602 Franks, Ex parte, 710 Fraser v. Jordan, 582 — V. Kershaw, 24 — V. Swansea Canal Co., 774 — V. Telegraph Construction Co. ,327 — V. Witt, 689 Frayes v. Worms, 384 Frazer». Cuthbertson, 12, 210, 211 — V. Hatton, 529, 530, 632, 644 — V. Marsh, 210 Freakley-t'. Fox, 254 Free v. Kingston, 667 Freeland v. Glover, 484 Freeman v. Baker, 649, 664 — V. Birch, 375 — v. Cooke, 23 — «!. East India Co., 468 — V. Pope, 714 — V. Eosher, 157 — V. Taylor, 365, 417 Freen, Ex parte, 736 Freeth v. Burr, 638, 639 French v. Archer, 284 — V. Backhouse, 133 — 11. French, 570 — V. Gerber, 336 — V. Newgass, 327 — V. Patton, 444 — V. Styring, 9 Friedlander v. L. A. Co., 506 Friere v. Woodhouse, 482 Frith V. Cartland, 767 Fromont v. Coupland, 11, 25 Frontin v. Small, 143 Frost V. Oliver, 139, 210 Fry V. Hill, 262 — V. M. B. of India, 360, 374 Fryer v. Morland, 491 Fuentes v. Montis, 144 Fuller V. Abrahams, 644 — 1/. Wilson, 152, 169 Furber, Ex parte, 740 Fumeaux, Ex parte, 740 Furtado v. Rogers, 427 Furze v. Sharwood, 39 FusiUer, The, 392 Fydell v. Clarke, 672 Fyfe's case, 105 G. Gabaeeon v. Kreeft, 343, 348, 612 Gabay v. Lloyd, 410 Gabriel ». Evill, 44 Gadd V. Houghton, 176 Gaetano and Maria, The, 199, 326, 358, 619 Gairdner v. Senhouse, 453 Galam, The, 370 Gale V. Bumell, 603 — V. Walsh, 277 GaUand v. Hall, 135 Galley v. Selby, 762 Galloway v. Jackson, 334 Galway (Lord) ». Matthew, 41 Gamba v. Le Mesurier, 427 Gambles v. Ocean Marine I. Co., 421 Games, Ex pa/rte, Tib Gaminde v. Pigou, 437 Gandall v. Pontigny, 622 Gandy v. Adelaide I. Co., 482 Ganly v. Ledwidge, 699 Garbutt v. Watson, 617 Garden Gully United Quartz Mining v. MoLister, 80, 82 Gardiner v. Baillie, 140 Gardner, Ex parte, 743 — V. Cazenove, 204, 205, 206 — V. Coleman, 703 — ■(/. Grout, 622 — V. Salvador, 462, 468 — V. Trechmann, 350, 374 — 'b. Walsh, 291 Garland v. Jacomb, 40, 41, 47, 257, 268 Garnet and M. G. M. Co v. Sutton, 110 Gamett v. WiUan, 306 Garrard e. Lewis, 230, 291 Garrels v. Kensington, 448, 449 Garrett v. Handley, 65 — V. Moule, 719 Garton v. Bristol and Exeter Rail. Co., 314, 315, 317 Gath V. Lees, 610 Gatlifie ». Bourne, 304, 360 Gatty v. Fry, 233 Gauntlet, The, 617 Gaussen:). Morton, 161 Gazelle, The, 366 Geach v. Ingall, 494, 496, 499 Geake v. Ross, 676 INDEX OK OASES. XXVll Geary v. Physio, 248 G-edge v. Matson, 589 Gee V. Pack, 690 Geisel, Ex parte, 718 Gellar, Ex parte, 9 General Co. v. Wetiey Brick Co., 102 — Company for Promotion of Land Credit, In re, 85 — Estates Co., In re, 90 — Iron Screw Co. v. Sohurmanns, 364 — Rolling Stock Co., In re, 102 — South American Co., In re, 282 — S. N. Co. V. B. & C. S. Co., 364 — S. N. Co. V. Slipper, 328, 355, 367 Generous, The, 392 Genese, In re, 732 Gennys, Ex parte, 767 George v. Glaggett, 65, 166 — V. Skivington, 654 — V. Surrey, 228, 248 — The, 365 — Home, The, 634, 535 Geralopulo v. "Wieler, 277, 280 Gerard v. Baker, 156 Gerasimo, The, 397, 398 Gerhard v. Bates, 74 German Date Coffee Co., In re, 101 Gemon v. Royal Exchange Insurance Co., 468, 470 Geyer v. AguUar, 449 Gibb V. Mather, 223 Gibbens v. Eyden, 762 Gibbon v. Mendez, 373 — V. Scott, 289 — V. Young, 326 Gibb's and West's case, 102 Gibbs V. Fremont, 282 — V. Grey, 367, 379 — V. Potter, 364 Giblin v. MoMullen, 129, 130, 702 Gibson v. Barton, 69, 79 — V. Bell, 749 — V. Carruthers, 684, 685, 764 — V. Holland, 677 — V. Ingo, 193 — V. Ireson, 184 — V. Muskett, 770 — V. Sturge, 370, 372 — V. Winter, 164, 168 Gidley v. Palmerstone, 174 Gifford, Ex parte, 683 Gilbart v. Dale, 320 Gilbert v. Fletcher, 563 Gilchrist, Ex parte, In re Armstrong, 710 . Giles, In re, 737 — ». Bourne, 234 — V. Hutt, 82 Gilkison ». Middleton, 337, 374, 706 Gill V. Cubitt, 217, 284 — V. Lougher, 132 — V. Manchester, &c. E. Co., 311, 320 Gillard v. Wise, 290 Gillespie, In re, 751 GilUatt 1'. GilUatt, 667 Gillies V. McLean, 134 Gillingham v. Laing, 717 GiUman v. Carbutt, 643 Gilman's case, 77 Gilman v. Elton, 184 — V. Robinson, 137 Gilraour v. Supple, 608 Gilpin V. Enderby, 10 Ginesi v. Cooper, 212, 213 Gipsey King, The, 365 Giraud v. Richmond, 522 Girolamo, The, 365 Gisboum v. Hurst, 184, 301 Gladstone v. Clay, 418, 419 — V. Hadwen, 644 — V. King, 480 . — V. Padwick, 598 Glahohn v. Hays, 327, 336 Glaister v. Hewer, 723 Glannibanta, The, 391 Glascock V. Balls, 254 Glasoott V. Day, 667, 669 Glasgow Bank, In re, 105 Glassington v. Thwaites, 26 Glazebrook v. Woodrow, 655 Gledstanes v, AUen, 374 — V. Royal Exch. Co., 406, 423 Glen V. Lewis, 607 Glendinning, Ex parte, 293, 683 Glenfruin, The, 363 Glidden, Ex parte, 748 Gloaheo v. Pease, 346, 601 Globe Iron Co., In re, 247 Glossop V. Harrison, 589 Glover v. Black, 414, 515 — V. Giles, 68 — V. Halkett, 579 Glyn V. E. & W. I. Docks Co., 348, 349, 360, 361 Glynn v. Baker, 220 — v.Hertel, 586 Godard v. Gray, 331 Goddard v. Cox, 678 — V. O'Brien, 290, 670 Godfray v. Couhnan, 262 — r. Tumbull, 45 Godin V. L. A. Co., 207 GodsaU V. Boldero, 493 Godts V. Rose, 621 Godwin v. Parton, 43 GofB V. Clinkard, 354 — V. Great Northern RaU. Co., 93, 157 Gold Co., /« re. 111, 112 Golden v. GiUam, 712 Golding, Davis & Co., Ex parte, 694, 695 Goldring, In re, 720 Goldsohmidt ». Whitmore, 430 Golubchick, The, 657 Gomersall, In re, 262 Gompertz v, Bartlett, 645, 672 — V, Denton, 650 Gooch's case, 104, 106 Gooch V. London Banking Ass., 96 Good, Ex parte, 767 GoodaU V. Polhill, 273, 281 Goode V. Elliott, 491 xxvm INDEX OF CASES. Groode V. Harrison, 5, 15, 16 Goodland v. Blewith, 669 Goodman v. Chaee, 571, 573 — V. Cremer, 281, 290 — i\ Griffiths, 625, 626 — V. Harvey, 217, 2S2, 276 — 1,. Poooek, 622 — V. Whitcombe, 20, 31 Goodson «. Brooke, 141 Goodtitle v. Woodward, 165 Goodwin v. Coates, 671 — V. Ciemer, 281, 290 — V. Gibbons, 180 — V. Eobarts, Ihteodtjotion, Ixt., Ixxxi., Ixxxii., Ixxxiv., 90, 218, 219, 223 Goom V. Aflalo, 631 Goram v. Sweeting, 403 Gordon, Hx parte, 743 — V. Ellis, 55, 56 ». Howden, 15 — V. Morley, 447 — V. Eimington, 426 — V. Eolt,\ 158 Gore ». Bethel, 390 Gorgier v. Mieville, 217, 218 Goring v. Edmonds, 584 Gorley, Ex pa/rle, 610 Gorman v. Hand-in-Hand Insurance Co., 605 Gorringe v. Irwell India Eubber Works, 96 Gorrissen v. Penin, 658 Gosbell V. Archer, 577, 628, 629 Gosman, In re, 676 Goss V. Nelson, 227 — «. Nugent (Lord), 588, 626 — V. Withers, 427, 428 Gongh ». Davies, 52 Gould, In re, 780 — V. Coombs, 291 — V. Oliver, Inteoduction, Ixvii., 354, 384 — V. Eobson, 293 Goupy V. Harden, 128, 262 Gouthwaite v. Duckworth, 37 Gover's case, 73, 164 Gower v. Von Dedalzen, 633 Grace v. Smith, 13 Grafton v. Armitage, 617 Graham, Ex parte, 747 — V. Barras, 446 — V. Eretwell, 633 — ». Hope, 23, 45 — V. MusBon, 633 Grainger v. Martin, 434, 469 Grant ». Coverdale, 332, 334 — V. Fletcher, 631 — V. King, 417 — v. Norway, 139, 340, 351 — ». Parkinson, 401 — V. Vaughan, 217, 220, 262, 284 Gratitudine, The, 199, 358, 515 Graves, Ex parte, 4, 710 — r. Key, 262, 254, 681 — V. Sawoer, 208 Gray's case, 93 Gray v. Carr, 330, 350, 351, 374 — v. ChisweU, 49 — V. Milner, 238 — V. Eaper, 90, 99 — «i. Seekham, 739 Great Britain 100 A 1 Ins. Ass. ei.Wyllie, 412, 413 Great Eastern, The, 139, 210 Great Indian Peninsula Railway Co. ii. Saunders, 439, 476 .Great Northern Kail. Co. v. Kennedy, 82 — V. Morville, 31 — ». Shepherd, 306 — V. Swaffield, 305 Great Northern of Scotland Rail. Co. v. Highland Bail. Co., 315 Great Northern S. S. Eishing Co. v. Edgehill, 536, 538 Great Ship Company, In re, 99, 102 Great Pacific, The, 614 Great Western Ins. Co. v. CunUfBe, 121, 123 Great Western Hail. Co., Ex parte, 727 — V. Bagge, 320 — V. Bunch, 302, 303 — V. McCarthy, 314 — V. Railway Oomrs., 315 »/. Rimell, 308 — ■. Duchatel, 286 Hankey, Ex parte, 740 — V. Smith, 656, 749 Hankow, The, 364 Hanna, The, 365 Hannibal Rail. Co. v. Swift, 304 Hansard v. Robinson, 298 Hanson v. Royden, 540 Hardacre v. Stewart, 179 Harden v. Forsyth, 161 Harding, Exparte, 578, 737, 742 — V. Preeoe, 586 Hardman v. WUoock, 122 Hardwicke (Lord) v. Vernon, 121 Hardy i'. Woodroofe, 266, 267 Hare v. Henty, 265 — V. Travis, 420, 463 — V. Waring, 719 Hargreave v. Smee, 680 Hargreaves, Exparte, 748 — V. Parsons, 572 Harkness v. Russell, 597 Harman v. Anderson, 642 XXX INDEX OF CASES. llarman v. Clarke, 332 V. Kingston, 416 _ V. Keeve, 616, 617 Harmer v. Cornelius, 120, 524 _ V. Steele, 254 Hamor v. Groves, 658 Harold v. Connor, 239 Harries v. Edmonds, 336 Harriet, The, 557, 559 Harrington v. Churcliward, 13 ■!,. Hoggart, 123 _ 0. Price, -699 i). Victoria Graving Dock Co., 121, 132 Harris, & parte, 747 — V. Amery, 40, 64 — V. Carter, 540 4,. Great "Western Eail. Co., 306 _ V. Jacots, 330, 331, 336 V. North Devon Kail. Co., 81 — V. Packer, 266 — V. Truman, 122, 767, 776 _ V. Venables, 575, 576 — V. Watson, 540 Harrison, Ex parte, 767 _ V. —, 137, 162 — V. Armitage, 29 V. Bank of Australia, 381 _ V. Cortauld, 294 — V. EUis, 422 _ V. Elvin, 626 _ V. Jackson, 33, 117, 165, 325 V. London and Brighton Rail. Co., 321 — v. Luke, 597 — V. Eoscoe, 269 — V. Seymour, 583 — V. Tennant, 20 — V. Vallance, 171 Harriss v. Eawcett, 587, 588 narrower v. Hutchinson, 418, 452 Harsant v. Blaine, 123 Halt V. Alexander, 46, 52, 63 — V. Baxendale, 309 _ V. Bush, 622 — V. Middleton, 666 _ V. Mills, 656 — V. Nash, 666 ]). Standard Mar. Ins. Co., 439 — V. Stephens, 241 — V. White, 176 Hartas v. Ribhous, 119 Hartford v. Jones, 390 Haxtley v. Buggin, 451 — V. Haiman, 522 — j;. Ponsonby, 540 — V, Wilkinson, 226 Hartop, Ex parte, 172 jj. Hoare, Inteodtjotion, Ixxi., 699 — V. Juckes, 176 Harvey, Ex parte, 684, 777 _ ■„. Bignold, 29, 30 . <;. Grabham, 626 _ 1!. Kay, 86, 88 Harvsy v. Scott, 244 _ V. Towers, 284 Harwood v. Bartlett, 713 Hasleham ». Young, 32, 35, 38 Haslock V. Eergusson, 595 , „ ^ .-. HasseU ». Merchant Traders S. L. & 1. Association, 490 Hastings v. Pepper, 342 (Corporation) v. South- Jiastem Rail. Co., 315 — (Marquis) v. Thorley, 668 Hatch V. Oil Co., 634 HatEeld *. Phillips, 147 Hathesing v. Laing, 340 Hattersley, Ex parte, 776 Hatton ». Royle, 36 Haughton v. Empire M. I. Co., 417 _ V. Ewbank, 137 HaussoUer v. Hartsink, 227 Hauxwell, Ex parte, 713 Havard, Ex parte, 736 Havelock v. Geddes, 372, 373 — V. Rockwood, 197, 470 Haven Gold Mining Co., In re, 101 Hawes v. Armstrong, 574 — V. Foster, 631 _ V. Humble, 668 — V. Watson, 642 Hawke, In re, 726 Hawken ». Bourne, 11, 32, 44, 87, 91 Hawker, Ex parte, 711 Hawkes v. Salter, 272 — V. Saunders, 575 Hawkeswortb's case, 865 Hawkins ». Twizell, 550 — V. Whitten, 751 Hawkshaw v. Parkins, 33, 583 Hawse v. Ramsbottom, 672 Hawtaynej). Bourne, 35, 92, 138, 142 Hawthorne v. Newcastle and S. S. Rail. Co., 756 Hay's case, 104 Hay V. Ayling, 286 Haydook v. Lynch, 226 Hayling v. Mulhall, 289, 293 Hayman, Ex parte, 774 Hayn v. CuUiford, 338, 339, 351, 363 Haynes v. Birks, 273 — ». Foster, 217 Hayton v. Irwin, 333, 355 Hayward, Exparte, 723, 738 — In re, 256 — 1/. Scougall, 668 Haywood v. Chambers, 285 — V. Rodgers, 483, 484 Hazards. TreadweU, 137, 162 Hazard's Administrators ». North Eng- land Insurance Co., 426 Head's case, 78, 84 Head f . Baldry, 573 — f/. TattersaU, 651 Headley v. Bainbridge, 40 Heald v. Kenworthy, 149, 160 Heap, In re, 787 Heam v. London and South Western Rail. Co., 308 INDEX OF CASES. XXXI Heame v. Edmunds, 441 Heath, Mx parte, 275 — V. Evans, 21 — V. Sansom, 41, 45, 46, 284 Heathcote, Ex parte, 773 Heathome v. Darling, 616 Hebb's case, 104 Hebdon v. West, 492, 493, 494 Hebe, The, 517 Hedburg v. Pearson, 473 HefSeld v. Meadows, 680 Heilbutt V. Hiokson, 651 — V. Neville, 247, 249 HeinriohBjom, The, 210,512, 519, 707, 708 Heiron's case, HI Heiron v. Morgan, 266 Heisoh ». Camngton, 119 Helbert v. Banner, 89, 106 Holder, Ex parte, 713, 752 Helgoland, The, 614 HeUaweU v. Eastwood, 185 Helm, Ex purte, 741 HelmeiJ. Smith, 210, 211 Helmore v. Smith, 22, 24 Helps V. Winterbottom, 674 Helsby v. Mears, 44 Helshaw v. Langley, 626 Helyear v. Hawke, 141, 649 Henderson v. Australian Boyal Mail S. P. Co., 92 — V. Bamewell, 140 — V. Comptoir D'Escompte de Pans, 343, 345 — V. Laoon, 74 — V. L. and N.W.'Rail. Co., 307 — V. Stevenson, 306 Hendricks v. Montagu, 19, 66 Henman v. Dickinson, 292 Henn v. Conisby, 166 Henniker v. Wigg, 678 Henson v. BlackweU, 493, 509 Hentig ». Staniforth, 486, 489 Henwood v. Oliver, 668 Hepburn, In re, 746 Herbert v. Champion, 477 — V. Markwell, 125 Hercules, The, 601 Hereford Waggon Co., In re, 88 Hermann Loog, Limited, In re, 699 Hersey, The, 515, 517 Hertfordshire Brewery Co., In re, 100 Hervey v. Liddiard, 774, 775 Herzogin, Marie, The, 560 Hesslton v. Allnutt, 420, 453 Hesketh's case, 88 Hester, In re, 789 Heugh V. L. and N. W. Hail. Co., 305 Hewison v. Guthrie, 706 Hewitt V. Thomson, 274 Heyler v. Hall, 718, 722 Heylin v. Adamson, 223 Heymam v. Elewker, 1'46 — 1). Neale, 630 — V. Parish, 429 Heys V. Tindall, 120 Heyward's case, 609, 611 Heywood v. Pickering, 265 — V. Watson, 266 Heyworth v. Hutohiiisan, 650, 651 — V. Knight, 631 Hibbert v. Carter, 345, 642 — V. HalUday, 453 — V. Martin, 430 — V. Pigou, 447 — V. Shee, 655 Hibblewhite v. M'Morine, 85, 653 Hibbs V. Boss, 193, 210 Hickie v. Eodocanachi, 472 Hickman v. Haynes, 626 Hicks V. Hankin, 141 — V. May, 108 — V. Shield, 369 Higgins, Ex parte, 745 — V. Scott, 698 — V. Senior, 173, 175, 628 Higgs V. Weaver, 779 Hildook V. Edwardfi, 233 HiU, Ex parte, 716, 741, 745, 757 — In re, 776 — . V. Audus, 366 — ' V. Eamell, 770 — V. Featherstonhaugh, 132 — V. Gray, 657 — V. Halford, 226 — V. Harris, 723 — V. Heap, 267 — V. Etching, 131, 132 — V. Patten, 444 — V. Perrot, 658 — V. Smith, Inteoditctiok, Ixxi., 699, 764 — V. Wilson, 370, 371, 385 HiUs V. London Assurance Co., 443, 473 — V. M'Rea, 49, 50 — V. Mesnard, 290 — V. Thorowgood, 271 Hilton V. Eokersley, 3 — V. Shepherd, 274 HinohcUSe v. Barwick, 633, 661, 663 Hinoka, In re, 754 Hinde v. Whitehouse, 604, 605, 629, 630, 631 Hine v. Allely, 266, 267 Hingston i: Wendt, 381, 386, 390, 402, 698 Hinton v. Dibbin, 309 — V. Sparks, 665 Hirschiield :;. L. B. and S. RaU. Co., 681 — V. Smith, 296, 297 Hirschman ». Budd, 291 Hirst, Ex parte, 726 Hitchcock V. Coker, 3, 214 — V. Humfrey, 268, 580 — V. Way, 287 Hitchman v. Walton, 773 Head v. Grace, 574, 575 Hoadley v. M'Laine, 626, 660 Hoare v. Cazenove, 259 — V. Dresser, 343, 345 — V. Graham, 289 — V. Eennie, 636, 637, 639 Hobbs V. Hannam, 403, 431 — V. Henning, 449 XXXll INDEX OF CASES. Hobson, Ex parte, 752 _ V. Bass, 589, 590 — V. Thelluson, 597 Hoohster v. De la Tour, 639 Hooking v. Aoraman, 771 Hodgman v. W. M. E. Co., 311 Hodgson, In re, 49, 50 V. Anderson, 162 — V. Davies, 640 _ V. Le Bret, 623 — 1!. Loy, 685, 688 — V. Sidney, 764 — V. Temple, 661 Hodkinson v. London and North-Western Eail Co., 304 Hodson V. Observer Life A. Co., 492 Hoffman v. Marsball, 442 _ V. Pitt, 714 Hogarth v. Latham, 39, 256 _ V. Wherley, 137 Hogg!). Homer, 462 — V. Skeen, 42 Jlolbird V. Anderson, 715 Holden v. "Webber, 123 Holderness v. Collinson, 701, 702, 704 — J). Lamport, 202 — V. Rankin, 776 _ V. Shackles, 25, 743 Holding V. Elliott, 176 Holds-worth v. Wise, 468 Hole V. Harrison, 591 Holl V. arifBn, 122 _ V. Hadley, 584, 686 HoUand v. King, 21, 28 — V. Phillips, 667 — V. Eussell, 177 — V. Teed, 65, 56, 582 Holliday v. Morgan,-652 HoUings V. Bussell, 145 HoUingshead, In re, 711 HoUingsworth v. Broderiok, 426, 458, 460, 490, 509 Hollins V. Fowler, 180, 598 HoUmanB. PuUin, 175 Holman v. Johnscm, 168, 429 Holme V. Brunskill, 684 — V Guppy, 633 — V. Hammond, 32 Holmes v. Clarke, 524 — V. Jaques, 236, 237 — V. Tutton, 171, 765 — V. Wilson, 603 Holroyd ». Gwynne, 717 _ V. Holroyd, 183 — V. Marshall, 613, 756 — V. Whitehead, 717 Hoist V. Pawnal, 688, 693 Holt V. Everall, 494 Home Investment Society, 110 Homer v. Ashford, 2 Homersham t'. Wolverhampton Water' •works Co., 95 Honck V. Muller, 637, 639 Honey, Ex parte, 746 Hoodt). Stallybrass & Co., 133 Hooper v. Gumm, 203 Hooper v. Keay, 51, 678, 680 — V. Lusby, 35 — V. Stevens, 666 _ e. Treffry, 283 ,Hope V. Cust, 41 .,„..„„ J,. International Financial Society, 69 — V. Meek, 722, 771 Hopkins v. Clarke, 763 _ V. Hitchcock, 646, 649 — V. Tanqneray, 649 — V. Ware, 261, 265, 672 Hopkinson v. Lovering, 767 Hopper V. Burness, 368, 369, 370, 371 Horlook, The, 193, 203 Horlor v. Carpenter, 580 Horn V. Anglo- Australian Co., 495, 497 — V. Baker, 773, 776 — V. Redfeame, 226 Hornblower v. Proud, 773 Hornby v. Lacy, 128 Homcastle v. Farren, 640 — V. Haworth, 486 — V. Suart, 402 Home v. Blake, 665 — V. Iw, 118 — V. Midland Eail. Co., 304 — c. Eouquette, 273, 297 Homeyer v. Lushington, 418, 429, 460, 486 Homsby v. Lee, 768 — V. MiUer, 774, 775 Horsey's case, 96, 743 Horsey v. Graham, 577 HorsfaU v. Fauntleroy, 164 — V. Handley, 177 — V. Thomas, 667 Horsley v. Bell, 174 — V. Price, 333, 355 — V. Eush, 166, 323, 326 Hort V. Dixon, 656 Horwood V. Smith, 600 Hoskins v. Slayton, 172, 174 Hospital of St. Cross v. Howard de Walden, 664 Hough V. Manzanos, 176, 325 — V. May, 667, 671, 674 Houghton V. Houghton, 183 — ■ V. Matthews, 173, 697, 703 Houlder v. Merchant's Mar. Ins. Co., 419, 422 Houlditch V. Cauty, 269 — V. Milne, 572 Houldsworth v. City of Glasgow Bank, 74, 152 Household Fire Ins. Co. v. Grant, 77, 624 Houstman v. Thornton, 425 HovU V. Pack, 140 How V. Kirchner, 374 Howard v. Bennett, 626 — V. Castle, 667 ■ — V. Crowther, 764 — *. Shepherd, 360 — V. Sheward, 136, 139, 142 — V. Tucker, 134, 359 Howe V. Finch, 625 — V. Nappier, 557 Howell, Ex parte, 722 INDEX OF CASES. xTcxin Howell V. Brodie, 11, 44 — V. Coupland, 634 — V. Jones, 581, 583 HozLer v. Caledonian Rail. Co., 318 Hubbard, Sx parte, lib — V. Bagshaw, 773 — V. Glover, 479 — V. .Tackaon, 254, 444 Hubert v. Treheme, 627 Hubner v. Richardson, 286 Huokman v. Femie, 495, 499, 600 Huoks V. Thornton, 422, 430, 436, 456 Hudson V. Baxendale, 304, 305 — V. Baton, 327, 446 — V. Clementson, 367 — I/. Ede, 325, 332, 334 — V. Grainger, 166, 703 — V. Harrison, 468, 471 — V. Hill, 330 Hudston V. Midland Rail. Co., 303 Huggins, Ex parte, 763 — In re, 788 Hughes V. Graeme, 175 — 1). Great "Western Rail. Co., 321 — v. Humphreys, 563 — V. Lenny, 697 — V. Sutherland, 535 Huguenin v. Basely, 121 — V. Rayley, 499 Hulme V. Mugglestone, 750 Humble v. Hunter, 166, 326 — V. Langston, 86 — V. MitoheU, 85, 619 Hume V. Peploe, 680 Humfrey ■o. Dale, 173. See Dale i/. Humirey. Hunt's case, 80 Hunt V. Heoht, 620, 622 — V. Royal Exoh. Assur. Co., 43, 467, 470 — V. Wimbledon Local Board, 92, 93, 95 Hunter, Ex parte, 37, 736, 747 — V. Beale, 695 — V. -Stj, 327, 367, 372 — I/. Parker, 34, 118, 199 — V. Potts, 426, 433, 765 — a. Prineep, 369, 371 Huntley, The, 514 Hurrell v. Ballard, 398 Huny V. Stangles, 644, 688 — V. Royal Exoh. Assur. Co., 474 Hurst V. Gwennap, 769 — V. Holding, 132 Husband v. Davis, 669 Hussey v. Home Payne, 628 Hutoheson v. Eaton, 176 Hutchings v. Nunes, 687 Hutohins v. Chambers, 186 Hutchinson v. Bowker, 624 — !>. Guion, 354, 367 — V. Heyworth, 233, 756 — V. Tatham, 173, 325 — V. Wright, 204, 206 — 1!. York and N. B. Rail. Co., 624 S. VOL I. Huth V. Lamport, 386 Hutley V. Marshall, 230 Huttman «>. Bullnois, 520, 522 Hutton V. Bragg, 700, 704 — V. Bulloch, 36, 151 — V. Eyre, 54 — V. Gray, 577 — V. Thompson, 87 — V. Upfill, 87 — V. Ward, 299 Huxham v. Smith, 667, 669 Huxtable, Ex parte, 776 Hyde v. Johnson, 163 — V. Trent and Mersey Navigation Co., 301, 303 Hymon v. Nye, 302 I. Ibbbtson, Ex parte, 773 Ida, The, 617 Idaho, The, 340 Ide, Ex parte, 720 Idle V. Royal Exchange Assurance Co., 468 Ihlee V. Henshaw, 215 Imeson, Ex parte, Tib Immanuel (Owners of the) v. Denholm, 340 Imperial Bank v. London & St. K. Docks Co., 173, 567, 687 — L. Co. of Marseilles, In re, 224 — Mercantile Credit Co., In re, 109, 113 — M. Credit Co. v. Coleman, 26, 80, 123 — Mar. Co. v. Eire Ins. Corpora- tion, 406 Ince HaU Rolling Mills Co., In re, 76 — V. Douglas Forge Co. 751 Independence, The, 365 Indian Chief, The, 397 Indomitable, The, 613 Inglis V. Stock, 401, 402, 403, 404, 406, 611, 615 — ». Vaux, 418, 451 Ingram v. Barnes, 526 Inman SS. Co. v. Bisohoff, 402, 426, 435 Innes v. Stephenson, 124, 247, 278 Innisfallen, The, 203, 204, 205 International Pulp Co., In re, 99, 108 lonides v. Pacific I. Co., 409, 414, 416, 478, 489 — V. Pender, 411, 431, 480, 481 — V. Universal Marine Insurance Co., 426, 434, 436 Ireland ». Livingston, 115, 119, 128, 141, 687 — I). Thompson, 199 Iron Mountain Rail. v. Knight, 342 Irvine v. Union Bank, 87, 91 — V. Watson, 160, 151 Irving V. Clegg, 367 C XXSIV INDEX OF CASES, Irymg v. Manning, 394, 410, 463, 467, 469 — V. Richardson, 207, 402, 490 Isaac V. Daniel, 292, 583 Isabella, The, 535 Isberg V. Bowden, 171 Isbister, £x parte, 672 Isherwood, £z parte, 767 — V. Whitmore, 667 Isitt V. Beeston, 712 — V. Rail. Passengers Ass. Co., 498 Israel v. Israel, 225 Izard, Hx parte, 713 J. Jaoaiid v. French, 57 Jack ». Kipping, 738, 749 Jaokmar v. Nightingale, 719 Jackson, Ex parte, 44, 767 — I. Clarke, 703 — V. Cummins, 698, 699, 701 — V. Forster, 497 — V. Galloway, 334 — V. Hudson, 260 — V. Irvin, 775 V. Jacob, 640 — V. Lo-we, 624 — . V. Nichol, 688, 693 — •>). Rogers, 303 — V. Sedgwick, 28, 30 — . Turquand, 75 — V. Union Mar. Ins. Co., 355, 366 — V. WooUejr, 52 Jacob, The, 615 — V. Credit Lyonnaia, 352 — V. Hart, 291 — V. Hungate, 284 Jacobs, In re, 293 — V. Humphrey, 153 — V. Latour, 705 ■ — V. Phillips, 742 Jaggers x. Binnings, 211 James, Mx parte, 763 — In re, 711 — V. Catherwood, 232 — V. Child, 679 — V. GrrifEen, 688 — v. Holditch, 265 — ■„. May, 113 — V. Shore, 656 — V. Williams, 286, 674, 675 Jameson v. Brick and Stone Co., 766 — V. Swinton, 268 Jamieson v. Laurie, 332 Janson, Bx parte, 746 Jamssen v. Green, 118 Jaques v. GoUghtly, 168 Jardine v. Leathley, 471 — V. Payne, 231 Jarman ». Coape, 450 Jarvis v. Wilkins, 225, 574 Jaunoey e. Knowles, 20 JeSiej V. Legender, 424, 447, 448 Jeffreys v. Smith, 11, 17 — V. Walter, 286 Jeffs V. Smith, 719 Jenkins v. BUzard, 46 — V. Hutchinson, 175 — V. Morris, 39, 239, 247 — V. Power, 398, 416 — V. Reynolds, 874 Jenkyns v. Brown, 597 — V. Usbome, 145, 148, 685, 687 Jennenjoy Coondoo v. Watson, 142 Jenneri). Smith, 610, 611 Jenney ». Bell, 728 Jennings v. Baddeley, 20 — V. Griffiths, 210 -T- V. Hammond, 64 Jenny v. Herle, 226 Jensen, In re, 773 Jervis v. Tayleur, 743 Jesse V. Roy, 651 Jessel V. Bath, 341 Jeudwine v. Slade, 653 Jevens v. Harridge, 4 Jewan v. Whitworth, 147 X Jewell V. Parr, 254 Jezeph V. Ingram, 714 Job V. Langton, 381 Johns, Ex parte, 748 — V. Simons, 199 Johnson, Ex parte, 713. — V. Broderiok, 541 — V. Credit Lyonnais, 136, 144, 147 — V. Dodgson, 620, 627 — ■!/. Emerson, 725 — ». Evans, 24 — V. Hudson, 661 — V. Kennion, 290 — V. Lander, 241 — i-. L. & T. RaU. Co., 610 — v. Lyttles Iron Agency, 80, 82 — «/. Marlborough (Duke of), 291, 292 — V. Midland Rail. Co., 301, 303 — V. Raylton, 648 — V. Roberts, 678 — V. Sheddon, 474 — V. Shippen, 515 — V. Stear, 602, 686, 706 — V. Windle, 279 Johnston, Ex parte, 272 — V. Hogg, 427, 450 — V. Kershaw, 128, 141 — V. NichoUs, 576 — V. Sutton, 407 — V. Usbome, 119 Johnstone v. MUling, 639 Jolland V. 123 Jolly V. Walker, 453 Jonassohn v. Young, 639 Jones, Ex parte, 5, 240, 710, 722 — In re, lb, 76, 679 — V. Barkley, 655 — V. Bowden, 657 — V. Broadhurst, 290, 675 — V. Cliffe, 706 — V. Consolidation I. A. Co., 498 INDEX OF CASES. XXXV Jones V. Cooper, 672 — V. Downman, 176 — V. Fort, 765 — V. Gordon, 217, 2S2, 284, 738 — V. Holm, 367 — V. Hough, 339 — V. Jones, 283 — V. Just, 644, 645, 646, 647 — V. Liverpool Corporation, 157 — V. Lloyd, 20 — ». Maund, 51 — V. Nicholson, 430 — V. Noy, 20 — V. Paroell, 730, 764 — V. Phipps, 165 — V. Provincial Insurance Co., 600 — V. Ryder, 233 — V. Shears, 45 — -ij. Simpson, 233 — 1). Tarleton, 708 — I). Tyler, 125 — V. Victoria Graving Dock, 617, 628 — V. Yates, 56 Jones Lloyd & Co,, In re, 76 Jonge Tobias, The, 211 Jordaine v. Lashhrooke, 231 Jordan v. Norton, 624, 651 Joselyn v. Parson, 1 Joseph «!. Knox, 170 Josephs V. Pebrer, 132 JosUng V. Kingeford, 646, 663 Josselyn v. Laoir, 226 Joule V. Jackson, 184 Journeau v. Bourdieu, 439 Joyce V. Kennard, 476 — r. Realm Insurance Co., 408, 419 — V. Swan, 403 Jadine v. Da Cossen, 717 Julian V. Shobrooke, 256 Juliana, The, 331, 551 Jungbluth V. Way, 672 Jury V. Barker, 227 Kahl v. Jansen, 163 Kaiu V. Old, 625, 650, 663 Kaines ». Knightly, 494 Kaltenbaoh». Lewis, 116, 147, 168 ~ V. McKenzie, 461, 470 Kamak, The, 199, 402, 515, 616, 617 Karuth's case, 105 Kay t>. Field, 332 — V. Groves, 579 — V. Wheeler, 362 Kaye v. Brett, 138, 154 Kearon «. Pearson, 331, 367 Kearslake v. Morgan, 671 Kearsley v. Cole, 683, 584, 589 Keasley v. Codd, 88 Keate v. Temple, 673 Keene v. Beard, 265 Keir v. Leeman, 286 Keith V. Burrows, 205, 206, 371 Kelder, Fx parte, 7 Si Kellard v. Rooke, 625 KeUner v. Le Mesurier, 427, 486 Kellock V. Enthoven, 85 Kelly, Ex parte, 716 — 1). Hutton, 17 — V. London & StafBordshire Ins. Co., 498 — V. Scotto, 14 Kelner v. Baxter, 164, 174 Kemp, Ex parte, 773 — V. Balls, 675 — V. Clark, 377 — V. Falk, 642, 692, 694, 695, 696 — V. Halliday, 386 — V. Prior, 128 Kempson.t'. Boyle, 631 Kemshead, Ex parte, 734 Kendal, Ex parte, 49 — V. Marshall, Stevens & Co., 643, 686, 689, 690, 692, 693, 765 ~ V. Wood, 42 Kendall v. Hamilton, 47, 48, 49, 60, 289, 294, 590 Kennard v. Knott, 292 Kennedy, Ex parte, 745 Kennerley v. Nash, 291 Kenny's Patent Button Holeing Co. v. Somervell, 25 Kensington, Ex parte, 66, 745 — r. IngUs, 4, 397, 444 Kent V. Shuokard, 125 Kenworthy v. Schofield, 619 Kern v. Deslandes, 349, 374 Kerr v. Willan, 306 Kerrison v. Cooke, 294 Kershaw v. Cox, 291, 444 — V. Matthews, 28 Kerswell v. Bishop, 206 Kettle v. Hammond, 711, 712 Kewley v. Ryan, 414, 420, 453 Key i\ Cotesworth, 344, 612, 684 — V. Flint, 750 — V. Shaw, 718 Keys, Ex parte, 749 Keyser v. Scott, 460 Kibble, Ex parte, 6, 240, 710, 734 — V. Gough, 622 Kidd V. Rawlinson, 714 Kidston v. Empire M. I. Co., 434, 438, 439, 440, 476, 477 Kidwelly Canal Co. v. Raby, 96 Kierlighetf, The, 197 Kjlby V. Wilson, 672 KUgour V. Finlyson, 138 Killeena, The, 389 Kilner, Ex parte, 712 Kilshaw v. Jukes, 13 Kinoaid's case, 104 Kinder v. Taylor, 22 Kimber v. Barber, 121 King's case, 83, 105 King, Exparte, 713, 746 — V. Glover, 401 — V. Hoare, 48, 289, 294 c2 XXXVl INDEX OF CASES. King V. Leith, 764 — V. Maiming, 43 — V. Smith, 66 — V. "Walker, 466, 469, 470 — V. Zimmerman, 300 Kingsbridge Mour Mill Co. «. Plymouth S. and D. Grinding and Baking Co., 95 KiDgsford v. Marshall, 440, 441 — V. Merry, 145, 644 Kingston's (Duchess of) case, 449 Kingston, Sx parte, 750 — V. Wendt, 376 Kinnaird v. "Webster, 678 Kinnitz v. Surry, 629 Kintrea, Ex parte, 84 KirbyB. Carr, 20 — V. Marlborough (Duke of), 678 — ». Smith, 480, 483 Kirohuer v. "Venus, 368, 374, 706 Kirk ». BeU, 94 — V. Blurton, 39 Earkham v. Marter, 570 Kjrkman «. Shawoross, 699, 701 Kirkpatrick v. S. Australian Ins. Co., 678 KirkstaU Brewery Co., 69 — V. Furness Bail. Co., 153 Kirton ». Braithwaite, 154, 669 Kirwan v. Kirwan, 45, 52, 53 Kish V. Cory, 336 Kit Hill Tunnel, In re, 96, lOS Kleinwort v. Shepherd, 427 — V. Cassa Marittima of Genoa, 368, 516 KnebeU ». "White, 29 Knight's case, 82 Knight V. Barber, 84, 85, 619 — V. Burgess, 764 — V. Cambridge, 429 — ». Clements, 292 — V. Crookford, 577, 627 — V. Faith, 421, 422, 466, 476 — V. Ktoh, 663 — V. Harrison, 705 — 1). Hughes, 591 — V. Hunt, 285 — V. Plymouth (Lord), 127 Knights V. "WhifEen, 643 Knill V. Hooper, 455 — i>. "Williams, 291 Knowles v. Horsfall, 775 Knox v. Gye, 24, 31, 52 Kopitoff V. Wilson, 363 Koster, Ex parte, 785 — «. Innes, 425 — V. Reed, 425 Krehl v. Great Central Gas Co., 749 770 Kruger v. Blank, 656 — V. "Wilcox, 703, 704 Kymer v. Suwercropp, 151 Kynastonti. Crouch, 161, 162, 770 L. Labouoheee v. Dawson, 213 Lacey v. HUl, 135 — V. Kynaston, 64 — 4>. "Wooloott, 41 Laokington v. Atherton, 642, 688 — V. Combes, 750 — V. Elliott, 757, 771 Laoon v. Liffen, 193, 201, 208, 712 L'Actif, 392 Lafitte V. Slatter, 268, 276 Laing v. Hollway, 333 — r. Meadow, 667, 668 Lake ». Argyll (Duke of), 87- Lakeman v. Mountstepheu, 670, 573 Lama Coal Co. , /« «, 1 U Lamb's case, 1-59 Lamb, In re, 721 — V. Attenborough, 145 Lambert's case, 38 Lambert, Ex parte, 260 Lambton, Ex parte, 613 Lambum v. Cruden, 522 Lampon ». Corke, 681 Lancashire "Waggon Co. v. Nuttall, 678 Lancashire and York Kail. v. Greenwood, 316, 317 Lane, In re, 716 — t,. CoUen, 179 — v. Cotton, 303 — -0. Nixon, 422, 455 Lang V. Anderdon, 446 — V. Smyth, 217, 220 Langdale, Ex parte, 10, 11, 14 — V. Mason, 509 — V. Trimmer, 273 Langham Skating Rink, In re, 100 Langhorn v. Allnutt, 153, 451, 462, 476, 486 — V. Cologan, 487 — V. Hardy, 417, 418 Langley, Ex parte, 771 Langley MiU S. and I. Co., In re, 103 Laugridge tt. Levy, 653 Langton v. Carleton, 620 — V. Higgins, 610 — 1/. Horton, 204 — V. Hughes, 661 — V. Lazarus, 292 — V. "Waite, 602 Lannony v. "Worry, 332 Lanphier ». Phipos, 130 Lanyou v. Smith, 89, 95 ' Lapierre v. M'Intosh, 4 Lapraik v. Burrows, 202 Laroohe v. Oswin, 453 Latch V. "Wedlake, 35 Latham v. Barber, 619 Latimer v. Batson, 714 La Touche v. La Touche, 241 Laurie v. Soholefield, 579, 580 Lavabre v. "Wilson, 454 Laveroni ». Drury, 362, 425 Lavery v. PurseU, 618 Lavie v. Phillips, 710, 768 1^'])EX OF CASES. XXXVU Law V. E. I. Co., 583 — V. Garrall, 28 — f. Hollingsworth, 456, 459 — V. London Indisputable Life In- surance Co., 492, 493 Lawler v. Kershaw, 86 Lawrence's case, 104 Lawrence v. Aberdein, 425, 460 — V. Accidental Ins. Co., 498 — V. Knowles, 640 — V. Sydebotham, 453 — V. Todd, 526 — V. Walmsley, 294 Lawson v. Weston, 252 Lawton v. Lawton, 185 — V. Salmon, 185 Laxton v. Peat, 293 Layer v. Nelson, 691 Laytboarp v. Bryant, 677, 578, 617, 625, 627 Lazarus r. Cowie, 254 — V. Waithman, 718 Leach v. Hewitt, 276 Leadley v. Evans, 65 Learoyd, Ex parte, 726 — V. Robinson, 147 Leary v. Lloyd, 188 Leather CloUi Co. c. Hieronimus, 625 — V. Lorsont, 2 Leathley v. Spyer, 581, 582, 584 Leathly v. Hunter, 452 Lebeau v. G-eneral Steam N. Co., 341 Lebol V. Tucker, 296, 297 Le Blanche v. Wilson, 589 Le Cheminant v, Pearson, 459 Le Conteur v. London and S. W. R. Co., 307 Le Cras v. Hughes, 403 Leduc V. Ward, 339, 356, 419 Lee, In re, 711 — V. Abdy, 601 — V. BuUen, 490 — V. Gaskell, 619 — V. Griffin, 617 — V. Haley, 19 — V. Jones, 686 — V. Lancashire and Yorkshire Rail. Co., 681 — V. Neuchatel Co., 71 — V. Rook. 588 — V. Shore, 668 — V. Southern I. Co., 476 — V. Zagury, 253 Leeds v. Lancashire, 226, 229 Leeds and County Bank v. Walker, 221, 222, 291 Leeds, &c. Rail. Co. v. Feamley, 78 Leeming v. Snaith, 636 Lees V. Marton, 718 — «!. Nuttall, 122 Leese r. Martin, 702 L'Evesque de Worcester's case, 598 Leevin e. Cormac, 486 Lefevre v. Lloyd, 128 Leftly V. Mills, 277 LefTfr i\ Evans, 698 Leicester Club, In re, 107 — (Mayor of) v. Burgess, 8 — — V. Rose, 285 Leideman v. Schultz, 325 Leigh )•. Mather, 421, 422 Lemere v. Elliott, 665 Le Mesurier v. Vaughan, 414 Lempriere v. Lange, 6 — V. Pasley, 642 Lennox, Ex parte, 734 — In re, 721 Lenton v. Cook, 699 Leonard v. Baker, 714 — V. Wilson, 249 Lepard v. Vernon, 161 Leroux v. Brown, 668, 617 Leslie, Ej parte, 737 — v. Fitzpatrick, 662 — V. French, 601 — r. Wilson, 325 Leverson v. Lane, 36, 42 Letohford v. Oldham, 439, 440, 441 Lethulier's case, 447, 448 Leuckhart v. Cooper, 701 Leri, Ex parte, 719 — V. Ayres, 107 Levin v. Newnham, 450 Levy V. BaiUie, 506 — V. Green, 611, 656 — V. Merchant's Mar. Ins. Co., 462 — V. Vaughan, 450 — V. Walker, 19, 27, 30, 212, 214 Lewes (Earl of) r. Bamett, 729 Lewis V. Bright, 8 — V. Edwards, 743 — r. HiUman, 121 — !'. Jones, 683 — V. M'Kee, 347, 348, 376 — V. Marshall, 368, 409, 414 — 4'. Nicholson, 178 — V. Peaohey, 564 — V. Reilly, 47 — V. Rucker, 410, 472, 474, 475 Leyoester ». Logan, 366 Lichfield (Guardians of) v. Greene, 222, 672 Liokbarrow v. Mason, Intboduciion, Ixxxiii., 346 Liddard r. Kain, 649, 652 — V. Lopes, 368, 371 Lidgate v. Williams, 123 Lidgett V. Perrin, 368 — V. Secretan, 410, 421, 476 — V. Williams, 323 Lienard v. Dressier, 119 Lightbody v. Hutchison, 338 Lilley v. Elwin, 521, 522, 523 Lilly V. Ewer, 447 Limland v. Stephens, 663 Limpus V. General Omnibus Co., 158 Lindenau v. Desborough, 499, 605 Lindon v. Sharpe, 771 Lindsay v. Janson, 450 Lindus v. Bradwell, 239 Lingard v. Messiter, 773, 776 Lingham r. Biggs, 773 Lingwood, Ex parte, lli xxxviii INDEX OF CASES. Linton v. Linton, 737 Lion Ins. Aaa. v. Tucker, 66 Lishman v. Christie, 340 — V. Northern M. I. Co., 483 Lister v. Van Haansbergen, 336 Litt V. Cowley, 695 — V. Martindale, 168 Little V. Slaokford, 225 Littledale, Ex parte, 764 — V. Dixon, 483 Littlefield v. Shee, 576 Littlehampton S. S.Co., In re, 105 Liver Alkali Co. v. Johnson, 301, 338, 360, 361 Liverpool Bank v. Walker, 28 Liverpool Borough Bank v. Turner, 201, 203 Liverpool Civil Service Ass., In re, 102 Liverpool Marine Credit Co. ■. Guibert, Intboduotion, Ixv., 139, 199, 326, 352, 359, 386 — V. Gurdon, 286 — V. Mason, 768 — V. Oliver, 224, 225 — V. Sigourney, 280 — V. Williams, 769 Lloyd's V. Harper, 587 Llynvi C. and I. Co., Hx parte, 738 Load V. Green, 644, 775 Loaring, Ex parte, 766 Lobb V. Stanley, 627 Loohiel, The, 517 Lock V. Selwood, 601 Lookhart v. Talk, 330, 336 Lookwood V. Leviok, 131 Lookyer v. Jones, 669 — .;. Offley, 421, 429, 430, 431, 471 Lodge and Pendall (Assignees of), Ex parte, 747 Lodge V. Dioas, 52, 53 — V. Prichard, 744 Logan V. Le Mesurier, 634 Lomax v. Buxton, 713 London Ass. Co. v. Mausel, 495, 496, 499, 605 London Chartered Bank v. White, 702 Loudon Financial Ass. v. Kelk, 10, 78 London Founders' Ass. v. Clarke, 85 London India Rubber Co., In ce,-98 London and Caledonian Mar. Ins Co /»?•«, 112 ■' London and Coimty Bkg. Co. v. Grooine 263, 285 ' London and County Bkg.Co. v. London and River Plate Bk., 220 London and County Bkg. Co. v. Eat- oliffe, 61 London and North Western Rail. Co v Bartlett, 319, 689, 690 London and North Western Rail. Co. v. Dunham, 313 London and North Western Rail. Co. v. Evershed, 317, 319, 321 London and North Western Rail. Co. v. Glyn, 207, 493, 502, 504 London and North Western Rail. Co. v. M 'Michael, 81 London and P. B. Corporation, In re, 101 London and Southern Lands Co,, In re, 80 Loudon and S. W. Bk. v. Wentworth, 256, 258 London and Sub. Bk. v. WalMnshaw, 281 London and S. W. Rail. Co. ». James, 366 Londonderry Commissioners v. Great Northern Railway, 317 Long V. Allen, 488 — v. Douglas, 490 — v. Duff, 484 — v. MiUar, 629 Longdendale Cotton Co., In re, 99 Longfellow i>. Williams, 677 Longman ». Tripp, 773 Longmeid v. Holliday, 654 Lopes, In re, 734 Lopez, Ex parte, 718 Loraine v. Thomlinson, 488 Lord Advocate v. Clyde Steam Navigation Co., 191 — Cochrane, The, 515, 517 — V. Hall, 141 — 1). Midland Rail. Co., 303 — V. Price, 641, 686 Loring v. Davis, 119 Lorymer v. Smith, 635, 665, 658 Losoombe v. Russell, 29 Lothian v. Henderson, 449 Lovegrove v. Nelson, 17 ' Lovell V. Hill, 227 — V. Howell, 624 Low V. Chifney, 284 — V. Dixon, 591 Lowenthal, Ex parte, 276 Lowes 1). Massaredo, 287 Lowndes, In re, 776 Lowreyj). Barker, 767 Lownr V. Bourdieu, 489 Lowthal V. Tomkins, 698 Lowther v. Lowther, 121 Lozano v. Janson, 466 Lucas V. Dicker, 771 — V. Dixon, 568, 624 — V. Dorrien, 642, 702 — V. Godwin, 658 — V. Martin, 732 — V. NookeUs, 700 — V. Wilkinson, 675 Luoenaj). Crauford, 127, 400, 403, 406 Luoey ». Ingram, 157 Luokie v. Bushby, 477 Lucy V. Mouflet, 658 Ludgater v. Love, 152 Luke V. Lyde, Inieod., Ixiv., Ixxxiii., 370 Lumb V. Milnes, 768 Lumsden's case, 82, 104 INDEX OF CASES. •X-lfgIT Lunn V. Thornton, 612 Lyde v. Barnard, S94 I^dney and Wigpool Iron Ore Co. v. Bird, 73 Lyell V. Kennedy, 122, 164 Lynall v. Long'EKitliam, 286 Lynch, £x parte, 6 — V. Dunsford, 480 — V. Hamilton, 480 Lyne v. Siesfield, 134 Lyon V. Haynes, 97 — V. TweddeU, 21, 30, 31 Lyons v. De Pass, 598 — V. ElUott, 184 — V. Martin, 158 Lysaght v. Bryant, 269 Lyth V. Anlt, 52, 63 M. Maanbs v. Henderson, 166, 703 Maber v. Maber, 624 Mao, The, 188 MacAndrew v. Chappie, 327, 355, 366, 372 M'Andrew v. Adams, 327 M'Bain v. Wallace, 606 M'Beath v. Haldimand, 174 M'Callan v. Mortimer, 638 M'Ganoe v, London and North Westem Rail. Co., 312, 314 M'Carthy v. Abel, 474 — V. Colvin, 177 MaoCarthy v. Young, 163 M'Carty v. Barrow, 723 M'CoUin V. Gilpin, 176 M'Combie v. Davies, 144, 703 M'Connel v. Murphy, 636 M'Connell v. Hector, 397, 723 M'Devitt V. ConnoUy, 121 Maodonald v. Law Union P. &L.I. Co., 495 — V. Whitfield, 231 MaoDougle v. Royal Exoh. Ass. Co., 441 Macdowall v. Eraser, 478, 481 M 'Entire v. Potter, 180 M'Ewan V. Smith, 641, 642 M'Farlane v. Norris, 704 MacGeorge, JEx parte, 2, 774 Maogregor v. Horsfall, 490 — V. Lowe, 658 — V. Maogregor, 616 — V. Smith, 490 M'Henry v. Davies, 241 MacheU, Ex parte, 744 Machu V. London and South Western Rail. Co., 308, 309 M'llwraith v. Dublin Trunk Co., 77 Macintosh v. Marshall, 480, 483 M'lver V. Henderson, 427, 468 — V. Humble, 46 — ». Richardson, 668 MacKay v. Commercial Bank of N. Bruns- wick, 152, 137 — V. Douglas, 714 — V. Merritt, 752 M'Keans, In re, 716 M'Kenna, Ex parte, 36, 183, 736 MacKenzie v. Coulson, 409 — V. Johnston, 125 — V. Pooley, 210 — V. Scott, 127 — V. Shedden, 418 — V. Whitworth, 405, 406 Mackersy v. Ramsays, 117, 120, 126 M'Kewan's ease, 66, 97, 107 • Mackill V. Wright, 327 M'KinneU v. Robinson, 134 Mackrell v. Simond, 369 M'Kune v. Joynson, 643 Maclae v. Sutherland, 248 M'Lay v. Perry, 636 M'Lean v. Clydesdale Banking Co., 221 Maolean v. Dunn, 140, 629 McLean v. Eleming, 340, 369, 374 — V. Kennard, 30 M'Leod V. Snee, 227 Maclure v. Lancashire Ins. Co., 506 Macnee v. Gorst, 147 M'Larty v. Middleton, 203 M'Manua v. Bark, 249 — V. Crickett, 158 — V. Lancashire and Yorkshire Rail. Co., 313, 314 M'Mastfirs v. Shoolbred, 427, 470 M'Nair v. Coulter, 487 M'Neil V. Reid, 17 M'NeUage v. Holloway, 723 M'Queep v. Great Western Rail. Co., 309 Maoredie, Ex parte, 739 M'Row V. Great Western Rail., 303 M'Swiney v. Royal Exchange Assurance Co., 401, 416, 419 Maddeford v. Austwick, 26 Maddick v. Marshall, 87 Maddison v. Alderson, 617 Maddon v. White, 562 Madgwick v. Wimble, 28, 31 Magee i>. Atkinson, 173 Magnus v. Buttemer, 426, 441 Mahony v. E. Holyford Mining Co., 87 — V. Kekule, 173, 174 Maillard v. Argyll (Duke of), 671 — V. Page, 289 Mair v. Glennie, 775 Makeham v. Crow, 749 Malins v. Freeman, 633 MaUan v. May, 2, 3 Mallet V. Bateman, 571, 572 — V. Thompson, 294 Maltby v. Carstairs, 684 Man V. Shiflner, 703 Manchester, S. and L. Rail. v. Brown, 314, 315 Manfield v. Maitland, 402 Mann, Ex parte, 739 — V. Forrester, 156, 703 — o. Lent, 284 Manning's case, 601 Manning, In re, 729 — V. Gist, 447 — V. Lunn, 668 Mansell v. Clements, 131 Mansfield Union v. Wright, 686 xl INDEX OF CASES. Manton v. Moore, 642, 714, 775 Mapplebaok, In re, 168 March (Earl of) v. Pigot, 424 Mare v. Charles, 239 Margetson v. Wright, 6S2 Maria, The, 365 Marie Joseph, The, 694 Marine Ins. Co. v. China Transpacific Co., 394 Marine Mutual Ins. Ass. v. Toung, 397 Maxino's case, 84 Marion, The, 209 Market Overt, Case of, 598 Marks v. Hamilton, 502 Mamer v. Banks, 599 Marquand v. Banner, 337, 351 Marrahle, Ex parte, lib Marriott v. A. R. Society, 206 Marryats v. White, 678, 680 Marsden v. City of London, &c.. Ass. Co., 508 — V. Eeid, 419, 479 Marseilles Extension E.. and L. Co., In re, 103 Marsh's case, 89 Marsh v. Keating, 35, 43; 163 Marshall, Expmte, 107 — V. Barkworth, 712 — V. Colman, 20, 29 — 1). GlaniorganL.andCo.Co.,105 — V. Green, 618, 619 — V. Lamh, 770 — V. Lynn, 626 — V. Poole, 676 — V. Kutten, 240 Marson v. Barter, 722 — V. Petit, 291 Marten v. Roche, 702 Martin v. Chauntry, 225 • — ■ ■!!. Great Indian P. Rail. Co., 306, 319 — ». Reed, 602 — V. SitT^U, 486 — V. Wright, 579, 580 Martindale v. Booth, 714 — V. Smith, 614, 641 Martineau v. Kitohing, 207, 504, 608, 615 Martyn v. Gray, 87 Maryin v. Wallis, 621 Mary Ann, The, 206, 612, 517, 558 Marzetti's case, 113 Marzetti v. Smith, 360 Mason, JSx parte, 726 — V. Harvey, 508 — *. Pritohard, 580 — V. Rumsey, 39 — V. Sainshnry, 608 — V. Skurry, 439 Maspons v. Mildred, 704 Massam v. Thorley's Cattle Food Co., 19 Massey v. Banner, 124 — v. Davies, 121, 123 Master v. MiUer, Inteodtjotion, Ixiv., Ixxi., 290 Masters v. Ibberson, 286 Mather, Ex parte, 737 Mather v. Fraser, 185 Matheson Brothers, In re, 64 Mathews v. Walwyn, 678 Matson v. Wharam, 572 Matter v. Maidstone, 279 Matthew, Ex parte, 721 Matthewman's case, 8 Matthews v. Bloxome, 250 — V. Gibbs, 358, 378, 379 — V. Lowther, 367 Matthie «. Potts, 422, 426 Maude, Ex parte, 746, 748 Maudesley v. Le Blanc, 88 Maughan v. Sharpe, 755 Mavor, Ex parte, 742 — V. Pyne, 723 — o. Simeon, 437 Maxted v. Paine, 119 Maxwell's case, 66 May, Ex parte, 179 — V. Chapman, 41 Mayall v. Mitford, 507 Maydhew v. Scott, 450 Mayer v. Nias, 674 Mayhew v. Criokett, 589 — V. Fames, 43, 306 — V. Herriok, 24 — V. Nelson, 307 MayUn v. Egloe, 717 Maynard v. Rhodes, 500 Mayor v. Johnson, 299 Meaboume v. Leckie, 468 Mead v. Davison, 424 Meadows v. Tanner, 657 Meakins v. Morris, 562 Medina v. Stoughton, 649 Medwin v. Ditchan, 31 Megginson v. Harper, 171, 237 Meggison v. Foster, 754 Meggy V. Imperial Discount Co., 774 Meier v. Kuohenmeister, 173 Meigh i>. Clinton, 80 Meiklereid v. West, 337, 543 Melanotte v. Teasdale, 225 MeUiado v. Porto Alegre RaU. Co., 88 MeUersh v. Keen, 212 — 1). Rippen, 270 MeUisht). AUnut, 418 — 4). Andrews, 428, 462, 462, 467, 469, 470 — V. Motteux, 657 — V. Rawdon, 262 — V. Simeon, 282 MeUona, The, 708 MeUor's Policy Trusts, In re, 494 Mellors . Howell, 715 Mews V. Carr, 163, 629, 630 Meyer, Ex parte, 718 — V. Dresser, 373, 704 — V. Everth, 650 — V. Gregson, 488 — V. Ealli, 465, 466 — V. Sharpe, 25 Meyerstern V. Barber, 361 — V. Eastern Agency Co., 117 Meymott, Ex parte, 710, 762 Michael v. Alestree, 180 — v. Gillespy, 358, 402, 434, 451 — V. Myers, 292 Michenson v. Begbie, 376 Middlesboro Assembly Rooms Co., In re, 100 Middleton v. Brewer, 568 — v. PoUook, 171 Middlewood v. Blakes, 420, 451, 478 Midland Ins. Co. v. Smith, 502, 609, 600, 737 Milan, The, 365 Milan Tramways Co., In re, 107, 751 Mildred v. Maspons, 146, 151, 152, 166, 703, 704 Miles's Claim, 39 Miles, Exparte, 151, 690, 691, 755 — 'u. Eurber, 184 — V. Gorton, 640, 641, 643, 644, 673, 674, 688 — V. Mcllwraith, 136, 169 Milford 11. Hughes, 118 Milgate v. Kebble, 614, 685 Millen v. Brasch, 308 Miller v. Race, 217, 220, 262 — v. Tetherington, 414 — V. Thomson, 238 — 41. Walker, 20 — V. WoodfaU, 472 Millers, Dale & Co., In re, 109 Milles V. Fletcher, 427 Mills V. Ball, 688, 689, 693 — V. Barber, 284 Mills V. Bennett, 742 — V. Fowkes, 678 — V. Gibson, 274 — V. GtTe^arj, 656 Millward v. Midland Rail. Co., 525 Milne, Exparte, 789, 790 Milyain v. Perez, 336 Milward v. Hibbert, 384, 460 Mineral Water Bottle Exchange Society V. Booth, 3 Minerva, The, 634, 535 Minet v. Gibson, 236 Minett v. Forester, 161 Minnet v. Whinery, 17, 41 Mirabita v. Imperial Ottoman Bank, 343, 344, 612 Misa V. Currie, 252 Missouri SS. Co., In re, 326, 352 Mitchel V. Reynolds, 2, 3, 214 Mitchell's case, 16, 83, 84, 102 Mitchell's Estate, In re, 84 Mitchell, In re, 710 — V. Baring, 259 — f. City of Glasgow Bank, 74, 84, 102 — V. CrassweUer, 157 — V. Darthez, 370 — V. Ede, 348, 401, 470 — V. Edie, 465 — p. Hughes, 768 — V. King, 667 — V. Lapage, 632 — V. Lancashire and Yorkshire Rail. Co,. 305,320 — 1). Scaife, 706 — u. Tarbutt, 210 Mitcheson v. Oliver, 210 Mitford V. Mitford, 768 — V. Waloott, 258 Moakest). Nicolson, 612 Mody V. Gregson, 647, 656 MoeUer v. Young, 376, 377 Moet V. Pickering, 702 Moffat V. Edwards, 226 — *. Parsons, 154 Moffettti. Stewart, 134 Moggeridge v. Jones, 284 Mogul SS. Co. V. Macgregor, 2, 3, 4 Moir V. Royal Exoh. Assurance Co., 446 Moline, Ex parte, 268 MoUer v. Lambert, 56 MoUett V. Robinson, 118 — V. Wackerbath, 632 Mollwo V. The Court of Wards, 9, 12, 16, 17, 33 Mona, The, 557 Monk V. Wliittenbury, 145 Montagu v. Perkins, 237 Montgomery i\ Egginton, 402 Montoyav. London Ass. Co., 424, 426,434 Moody V. Surridge, 439 Moon V. Guardians of Witney Union, 117 Moore, Exparte, 720, 746, 747 — V. Anglo-Italian Bank, 723 — V. Campbell, 626, 632 — V. Davis, 13 xlii INDEX OF CASES. Moore v. Hammond, 63, 80 — V. Harris, 352, 653 — V. Rawlins, 81 — V. Taylor, 421 — V. Vanlute, 225- — ». Voughton, 676, 677 _ 1). Wilson, 320 — V. 'Woolsey, 497 Moore and De La Torre's case, 99 Moorsom v. Kymer, 377 — V. Page, 367 Mordy v. Jones, 433 Moreton v. Hardeme, 43 More-wood v. PoUok, 362 Moraran, In re, 766 _ V. Bain, 615, 639. 640, 641 — V. Corder, 173 — V. Jones, 676 — V. Marquis, 743 — V. Pebrer, 491 — V. Price, 490 — V. Richardson, 284 — V. Steele, 764 — B. Vale of N. R. Co., 524 Morier, Ex parte, 749 Morison v. Muspratt, 499 — V. Thompson, 121, 123, 561 Morland v. Isaac, 493 Morley, Ex parte, 50, 710 — 4). Attenhorough, Inteoduotion, Ixxi., 649, 653 . — V. Culverwell, 255 — V. White, 728 Morocco Land Co. v. Pry, 414 Morrell v. Cowan, 574, 580 Morris's case, 89, 106, 108 Morris v. Barrett, 183 — V. Oleasby, 128 — V. iTixon, 233 — V. Lee, 224 — 1}. Levison, 327, 332, 367, 636 — V. Robinson, 368, 468 — 1,. Walker, 281 Morrison v. Statter, 137 — J). Universal M. I. Co., 480, 482 Morritt, In re, 602 — ■». North-EastemRail. Co., 309 Mors le Blanch v. Wilson, 361, 705 Morse v. Slue, 180 — V. Sluice, 172 Morten v. Marshall, 686 Mortgage Ins. Corp., Limd. v. Comrs. Inland Revenue, 225, 233 Morton v. Tibbett, 622 Moses V. Pratt, 488 Mosff, Bx parte, 226, 756 — 1). Byrom, 431 — V. Smith, 358, 469 — V. Sweet, 612 Mossop 1!. Eadon, 300 Mostyn v. Stock, 754 Moth V. Prome, 762 Motteux V. London Ass. Co. 454 Moule V. Brown, 265 Mount V. Larkins, 463 Mountstephen v. Lakeman 570, 673 Mowatt «. Londesborottgh (Lord) 74, 676 Moyce v. Newington, 600 Mozley v. Tinkler, 568 Muckiow V. Mangles, 612 — V. May, 719 Mudie, Expao'te, 734 Muilman v. D'Eguino, 262 Muir V. Crawford, 54, 292 — «. Glasgow Bank, 78 Muirhead, Ex parte, 723 Mullens v. Miller, 170 Mullett V. Shedden, 428, 429, 462, 463, 469 Mumford, Ex parte, 737 Munday v. Asprey, 624 Murphy v. Glass, 588, 589 Murray v. Currie, 157 — V. B. I. Co., 141 — v. Elibank (Lord), 768 Musohamp v. Lane, and Prest. Rail. Co., 305, 320 Musgrave's case, 84 Musgrave v. Drake, 42. Muskett V. Rogers, 684 Muspratt v. Gregory, 184 Mutford V. Walcott, 252 Mutter V. E. & Midlands Rail. Co., 70 Mutual Loan Eund Ass. v. Sudlow, 294, 583 Myoook V. Beatson, 21 Myers v. Edge, 66 _ X,. WilKs, 193, 203, 210 Mynn v. Jolifle, 154, 163 N. Naoketts v. Crosby, 74 Naden, Ex parte, 738 Nanney v. Morgan, 86 Nanson v. Gordon, 746 Nantes v. Thompson, 400 Naoroji v. Chartered Bank of India, 749 Nassau Co., In re, 68 Nation's case, 105 National, &o.. Association v. Drew, 169 — Assurance and I. Ass., In re, 89 — Bank v. Merchants' Bank, 344 — Bolivian Co. v. Wilson, 138, 139 • — CoSee Palace Co., In re, 175 — Financial Co., In re, 96 — Funds Asa. Co., In re, 113 — Provincial Bank, Ex parte, 739 — Savings Bank v. Tranah, 288, 674 Native I. 0. Co., In re, 70 Navone v. Haddon, 439, 473 Navulshawn. Brownrigg, 146, 146 Nayler v. Yearsley, 520 Naylor v. Mangles, 699, 702 — V. Palmer, 427 — V. Taylor, 467 Neal 4). Viney, 656 Neave v. Pratt, 662 NeiU V. Ridley, 337 — V. Whitworth, 633, 655 INDEX OF CASES. xliii Neilson v. James, 13fi — V. Mossend Iron Co., 21, 23 Nelly Schneider, The, 209 Nelson v. Dahl, 355 — V. Salvador, 446 — V. Serle, 248 — The, 617 Nene Valley Drainage Comrs. it. Dunkley, 677 Nepoter, The, 347 Neptune, The, 205, 406, 660, 651, 707 Nerot V. Bumand, 21, 22 Nesbitt V. Lushington, 427, 428 New Gas Generator Co., In re, 100 — V. Swain, 640 Newal V. Jones, 677 NewaU v. Tomlinson, 178 Newberry v. Colvin, 337, 361 New Brunswick C. R. Co. v. Muggeridge, 72 Ne-wcastle (The Duke of), In re, 110 — Fire Insurance Company i/. M'Morran, 606 Newell V. Eadford, 625 — V. "Van Praagh, 670 Ne-wen v. Gill, 273 Newington Local Board v. Eldridge, 702 — 1!. N. E. Rail., 316 Newitt, Sx parte, 766 Newman, £x parte, 741, 742 Newmaroh v. Clay, 61, 678 New Quebrada Co. r. Carr, 760, 772 New Sombrero Phosphate Co. v. Erlanger, 48, 95 New York Bowery F. Ins. Co. v. N. T. Fire Ins. Co., 511 New Zealand Land Co. v. Watson, 116, 117, 130, 151, 168 Newry and Enniskillen Railway Co. v. Coombe, 15 Newsom ». Thornton, 144, 346, 349, 684, 687 Newsome v. Coles, 45, 46 Newton, £x parte, 738, 739 — v. Blunt, 54 — V. Scott, 767 Nichol V. Godts, 653 — V. Thompson, 676 NichoUs, Ex parte, 765 — 0. Le Feuvre, 687, 688, 693 Nichols V. Norris, 294 Nicholson v. Bower, 689 — ■(/. Drury Buildinga Co., 768 — ( . Great "Western Rail. Co., 315 — V. Paget, 679, 680 — V. Revill, 64, 294, 687 — 41. Kicketts, 32, 38, 39 — V. Willan, 306 Niokalls v. Merry, U9, 134 NiokoU, Ex parte, 721 Nickson v. Brohan, 137 Nicoll V. Greaves, 520 Nielsen v. Wait, 326, 330, 333 Nina, The, 560 Nisbet V. Smith, 683, 588 Noble's Explosives Co. v. Jones, 180 Noble V. Adams, 644 — V. DurreU, 664 — V. Kennoway, 415, 422 — V. Ward, 626 Nolte, Ex parte, 38, 42, 744 Nonnen v. KettleweU, 459 — V. Reid, 469, 479 Nonpareil, The, 635 Norden Steam Co. v. Dempsey, 325, 330, 333 Norfolk (Duke of) ». Worthy, 167, 667 Norman v. Phillips, 319 Norrington v. Wright, 636, 639 Norris, Ex parte, 736 — V. Cottle, 87 — V. Solomon, 225 North British Ins. Co. v. Lloyd, 586 — V. London, &o. Ins. Co., 604, 611 — V. Moffatt, 207, 502, 604 North Central Waggon Co. v. M. S. and L. Railway, 607 North of England Ins. Ass., Re, v. Arm- strong, 410 — Oil Cake Co. ». Arch- angel M. Ins. Co., 406 North V. Gumey, 764 — ». Smith, 168 North Star, The, 386 North Western Rail. Co. v. M'Miohael, 16, 78 — V. Whinray, 683 North's (Lord) case, 120 Northey v. Field, 688 Norton, Ex parte, 713, 768, 770 — V. Pickering, 276 — V. PoweU, 663 Norway, The, 372, 705 Norwich and Lowestoft Navigation ii. Theobald, 80 Notara v. Henderson, 357, 361 Nottebohn v. Richter, 326, 328 Nottingham Bank, Ex parte, 773 Nottingham Hide Co. v. Bottrill, 680 Novelli V. Rossi, 292 Nowlan v. Ablett, 620 Nugent v. Smith, IifTEODUonoN, Ixvi., 301, 304, 338, 361 Nutt V. Bordieu, 430 Nyholm, Ex parte, 369 0. Oak Pitts Colliery Co., In re, 102 Oakes v. Turquand, 69, 68, 73, 77, 78, 90, 104 Oakley v. PasheUer, 683 — V. Portsmouth and R. S. P. Co., 304 Oaste V. Taylor, Intkoduotion, Ixxxii. Oastler, Ex parte, 721 Ockenden, Exparte, 698, 701, 702, 750 xli-v INDEX OF CASES. Oddy V. Bovill, 198 OfEord V. Da-ries, 588 Ogden V. Eenas, 280 — v. Graham, 367 Ogg V. Shuter, 343, 344, 401, 612 Ogilvie V. Foljambe, 577 Ogle, Expm-te, 746, 747 — V. Storey, 699 — V. Vane, 626, 655 Oglesby v. Yglesias, 336 Ohrlofl V. Brisoall, 354 Okell V. Charles, 239 — f. Smith, 651 Oldershaw v. King, 576 Oldman v. Bewioke, 506 Olive V. Smith, 703, 749 Oliver v. Court, 121 — V. Pielden, 336 — V. Hamilton, 31 — V. WoodroflEe, 5 OUverson v. Brightman, 422 Olivier, The, 199, 515, 516 Ollivant v. Bayley, 645 Ollive V. Booker, 335 Omoa Coal Co. v. Huntley, 337, 354, 374 Onward, The, 199, 516 Oom V. Bruce, 486, 489 — V. Taylor, 450 Oppenheim ». Fry, 381, 442 — V. Russell, 693 ' — V. White Lion Hotel Co., 125 Opy V. Child, 557 Orchard v. Kaokstraw, 699 O'Keilly v. Gonne, 450, 454 — '«. EoyalExch. Assur. Co., 450 Orett, Ex parte, 754 Oriental, The, 516, 517 — Bank v. Coleman, 711 — P. Co. V. Overend, Gurney & Co., 583 Orme v. Young, 293, 684 Ormerod's case, 105 Ormond v. Holland, 524 Ormrod v. Huth, 169, 649, 653, 654 Ornamental Wood-work Co. v. Brown, 81 Orr V. Chase, 50 — V. Dickinson, 203 — V. Maginnis, 275, 276, 277 — V. Union Bank, 280 Oshorne v. Jackson, 525 Osgood V. Groning, 371 Osmanli, The, 516 Oswald V. Mayor of Berwick, 583 OsweU V. Vigne, 469 Oulds V. Harrison, 254, 285, 286 Outhwaite v. Luntley, 291 Overend, Gurney & Co., In re, 254, 260, 285 — «. Gihb, 80 — i>. Oriental Corp., 292, 294 — Owen, Ex parte, 47, 743 Owen V. Burnett, 306, 307, 308, £09 — V. Gooch, 173 — V. Homan, 292 Owen V. Van Uster, 239 Owens V. Denton, 666 Owenson v. Morse, 671, 672, 700 Owston V. Ogle, 210 Oxendale v. Wetherell, 651 Oxford Building Society, In re, 113 Oxlade v. N. East. Kail. Co., 301, 303, 316, 741 Pacific, The, 205 Packer v. Gillies, 599 Paddy, Ex parte, 722 Padstow Ass. Association, In re, 18, 62, 64 Padwiok v. Stanley, 125 Page, Ex parte, 722 — V. Cowasgee Edulgee, 614 — V. Fry, 403 — V. Meek, 666 — V. Morgan, 622, 623 Paioe V. Walker, 176 Paine v. Hutchinson, 84 Palethorpe v. Furnish, 153 PaUiser v. Gurney, 7 Palmer v. Blackburn, 475 — v. Fenning, 417 — V. Grand Junction Bail. Co., 301 — V. Marshall, 417, 451 — v. Naylor, 431, 436 — v. Reiffenstein, 161 Palyart v. Leokie, 489 Panama, &c., Co. v. India-rubber, &c., Co., 121 — The, 516 Paramore v. Verrall, Intbodtjotion, Ixxix. Parana, The, 356 Paxdington v. South Wales Rail. Co., 311, 313 Parfitt V. Jepson, 657 — D. Thompson, 424, 458 Parker, Ex parte, 84 — K. Barker, 16 — ■!/. Bristol and Exeter Rail. Co., 321 — V. Great Western Rail. Co., 321 — V. Kett, 143 — V. Leigh, 292 — V. Lewis, 80 — V. McKenna, 121 — ». Patrick, 599, 644 — V. Smith, 161 — V. South Eastern Rail. Co., 306 — V. Winlo, 326 Parkes, Ex parte, Ibb Parkin v. Camithers, 23, 45 — v. Dick, 408 — V. Tunno, 420 Parkins «. Moravia, 571 Parkinson v. CoUier, 422 Parmeter «. Cousins, 417, 421 — V. Todhunter, 470 Parmiter v. Panniter, 231 INJ)EX OF CASES. xlv Famham v. Hurst, 768 Parr, Ex parte, 736 — V. Anderson, 463 — V. Eliason, 287 Parr's case, 83 Parrott v. Anderson, 671 — V. Eyre, 174 Parry v. Aberdein, 468 — V. Great Ship Co., 443, 489 — V. Nicholson, 291 Parson v. Sexton, 630 Parsons v. G-ingell, 184 Partridge v. Bank of England, 165, 218, 220 Pasley v. Freeman, 578, 693, 649 Patent File Co , In re. 91 — Invert Sugar Co., In re, 69 Paterson v. Gandasequi, 149, 131, 173 — V. Hardaore, 284 — -0. Harris, 423, 442 — D. Powell, 491 — V. Ritchie, 427 — V. Tash, 144 Pateshall v. Tranter, 660 Patmore v. Colburn, 123 Patsoheider v. Great W. Ry., 304 Patten v. Wood, 564 Patterson ». Ritchie, 474 Pattison v. Belford tTnion (Guardians of), 165 Paul V. Joel, 270 Pavy's Patent Felted Fabric Co., 136 Pawle V. Giinn, 619 Pawsey v. Armstrong, 9, 14 Pawson V. Watson, 479 Payne, Ex parte, 726 — V. Cave, 630 — V. Ives, 38, 42 — V. Johnson, 568 — V. Mayor of Brecon, 91 — V. Meller, 424 — V. Partridge, 301 — V. Whale, 660 — V. Wilson, 576 Paynter v. James, 369 Peacock, Ex parte, 736, 738, 741 — V. Freeman, 131 — V. Peacock, 18, 21, 31 — V. Pursell, 672 — V. Rhodes, 220, 250, 252, 284 Peake, Ex parte, 765 Pearce v. Brooks, 661 — V. Chamberlain, 17 — V. Foster, 523 Pearl v. Deacon, 678 — The, 662, 653 Pearse v. Green, 122 Pearson's case, 103, 111 Pearson, Ex parte, 611, 712, 764 — V. Commercial U. A. Co., 410, 461, 462, 606 — V. Cox, 167 — V. Da-vrson, 642, 643 — V. Graham, 161, 162 — V. Pearson, 213 — V. Scott, 136, 154, 156, 667 Pease v. Gloahec, 346, 601 — V. Hirst, 56 Peat V. Jones, 749 Peate v. Dickeu, 663 Peek V. Derry, 73, 654 — »..Gumey, 73, 75, 657 — V. Larsen, 339 — V. N. S. R. Co., 308, 313, 321 Peel V. Thomas, 11 Peel's case, 104 Peele, Ex parte, 44 — V. Merchants' Ins. Co., 468 Peer «). Humphrey, 217 Peiree v. Corf, 623, 630 Pellas V. Neptune Mar. Ins. Co., 414 Pellatt's case, 77, 104 Pellecat v. AngeU, 662 Pelley v. Royal Exch. Ass. Co., 413 Pemberton v. Oakes, 51, 66, 582 Peninsular and Orient. Co. v. Sand, 307 Penkervil v. Connell, 248 Penn v. Ward, 561 Pennell v. Deffell, 767 — V. Reynolds, 713 — V. Stephens, 753, 770 Penney, Ex parte, 83 Penrose v. Martyn, 70, 239 Penson v. Lee, 488 Pentelow's case, 75, 104 Penton v. Robart, 185 Percival v. Prampton, 284 — V. Oldacre, 649 Perkins v. Smith, 179 Perry, Ex parte, 764 — V. Bamett, 85, 120, 135, 141, 410, 664 — V. HoU, 141 Peruvian Rail. Co., In re, 239 — V. Thames and Mersey M. I. Co., 90 Peter v. Compton, 616 — V. Rich, 691 Peter Der Grosse, The, 341 Peters v. Anderson, 678 — V. Opie, 604, 640 Peto V. Reynolds, 238 Petre v. Drummond, 689 Petroeoohino v. Bott, 360 Pettitt ». Mitchell, 636 Petty V. Cooke, 286, 586 Phelps V. Auldjo, 453, 454 — Stokes and Co. v. Comber, 686, 696 — v. London and N. W. Rail. Co., 303 — V. Prothero, 166 PhUlimore v. Barry, 624, 630 Phillips V. Barber, 425, 433 — V. Briard, 131 — V. Clagett, 56 — V. Clark, 304, 366, 363 — V. Clift, 663 — V. Edwards, 338 — V. Foxall, 686 — V. Headlam, 353, 456 — V. Hunter, 765 xlvi INDEX OF CASES. Phillips V. Huth, 147 — V. Im Thum, 236, 269, 279 — V. Irving, 417, 461, 453 — 'K. Naime, 458 — V. PhilHpa, 183 Philpot V. Briant, 293, 583 — It. Jones, 678, 680 Philpott V. Swan, 434 Ptilpotts V. Eyans, 655 Phoenix Bessemer Co., In re, 641 Phoenix Life Asa. Co., In re, 88 — V. Sheridan, 498 Phyn V. Roy. Exch. Ass. Co., 430 Pianoiani v. London and South Western Bail. Co., 307 Pickard v. Sears, 136 Picker v. London and County Banking Co., 218, 220 Pickering, In re, 107 — V. Busk, 127, 136, 137 — V. Dowson, 650, 653, 657 — V. Stephenson, 63 Pickering's Claim, 143 Piokford v. Grand Juno. Rail. 303, 321 Pickstook «. Lyster, 715 Pickup ». Thames Ins. Co., 458 Pidoock V. Bishop, 586 Pidgeon v. Burslera, 132 Pierce v. Corfe, 629, 630 — V. Thomley, 768 Pieroy v. Eynney, 35, 41 Pierson i>. Dunlop, 227, 290 — V. Hutchinson, 299 — i>. Pounteys, Inteoditctign, Ixxxi. Pieschall v. Alnutt, 408 Piggott V. Birtles, 185 Bgot V. Cuhley, 602 Pigot'scase, 588 Pigott V. Bayley, 28 Pike V. Ongley, 173, 326 — V. Stephens, 753, 770 PDkington v. Peach, 4 Pillans V. Van Mierop, 258 Pillar V. Llynvi Coal Co., 526 Pirn V. Reed, 507 Pinder v. "Wilks, 46, 377 Pinkerton, Ex parte, 746 Pinnel's case, 669 Pinner v. Arnold, 617 Pinnook v. Harrison, 700, 707 Pipon V. Cope, 429, 468, 460 Piiie V. Middle Dock Co., 388 — V. Steele, 474 Pisani v. Attorney- General of Gibraltar, 122 Pitohford v. Davis, 86 Pitman v. Universal Ins. Co., 385, 466, 467, 469, 474 Pittegrew v. Pringle, 446 Pitts J). Beckett, 630, 631 Place J). Potts, 615, 518 Planche v. Fletcher, 429 Plaskynaston Tube Co., In, re, 76 Pledge ». Buss, 589 Plevins v. Dowling, 626 Plimley v. Westley, 228 Plomer v. Long, 678, 680 Plumer v. Gregory, 43 Plnmmer, In re, 736 Poigndestre «. Royal Exch. Ass. Co., 474 Polak V. Everett, 584, 685 Pole V. Eitzgerald, 421 — V. Leask, 119, 136 — V. Mastermann, 30 Polglaas V. Oliver, 667 Polhill V. Walter, 176 Pollard V. BeU, 449 — 1^. Vinton, 339 Pollocks. Stables, 119, 133 Pontida, The, 139, 199 Pontifex v. Bignold, 478 Poole's case, 185 — Executors, Ex parte, 113 Poole Kre Brick and Clay Company, In re, 111 — V. Dicas, 273 — V. Middleton, 83 — V. Shergold, 666 — V. Smith, 299 — V. Tumbridge, 666 Pooley V. Brown, 232, 251 — V. Driver, 9, 14 — V. Harradiue, 290, 294, 683 — V. MiUard, 299, 300 Poppleton, Ex parte, 62 Pordage «>. Cole, 638 Portal ». Enunens, 81 Portens v. Watney, 332, 334, 351 Porter v. Palsgrave, 676 — V. Taylor, 66 — V. Vorley, 763 Postlethwaite, In re, 732 — V. Freeland, 330, 331, 332 Postmaster- General, Ex parte, 754, 772 Pott V. Clegg, 665 — V. Eyton, 13 Potter V. Rankin, 470 Pottinger, Ex parte, 738 Potts f . Bell, 407 — 'u. Potts, 177 Poucher, Ex parte, 741 Powell, Ex parte, 776 — V. Divett, 632 — V. Gudgeon, 433 — V. Horton, 649 -^ V. Hyde, 431, 449 — w. Jessop, 84 Power V. Barham, 649, 653 — V. Butcher, 398 — ». Wells, 650 — V. Whitmore, 383 Powles V. Innes, 400, 403, 406 — V. Page, 4S Prange, Ex parte, 268, 271 Pratt ». Vizard, 699 Precious v. Abel, 137 Prendergast v. Turton, 82 Prescott V. Elinn, 137, 142 President, The, 448 Preston, Ex parte, 718, 749 — ». Jackson, 286 — V. Tamplln, 210 INDEX OP CASES. xlvii Price, Ex parte, 749 — f . A 1 Ships Association, 439, 442 — V. Barker, 54 — V. BeU, 449, 460 — V. Edmunds, 293, 294 — V. Livingstone, 327 — V. Neal, 279 — V. Price, 288 Prickett v. Badger, 131, 132 Prideaux, Ex parte, 722 — D. Griddle, 272 Priestley v. Fernie, 172, 366 — V. Fowler, 157, 624 — V. Pratt, 776 Prince v. Clarke, 120, 129 — Oriental Bank, 273 Princess Charlotte^ The, 193 — Helena, The, 644, 568 Pring V. Clarkson, 293 Pringle v. Hodson, 768 — V. MoUett, 332 — V. Merchants' & Tradesman's Life Ins. Co., 498 Pritchard's case, 105, 106 Professional C. and I. Benefit Building Society, In re, 103 Prosser v. Smith, 743 Proudfoot V. Montefiore, 162, 480, 484 Provincial Insurance Co. of Canada v. Leduc, 207, 471, 490 Pruessing v. Ing, 231 Pryoe, In re, 773 — V. Wilkinson, 131 Puokford V. Maxwell, 671 Puokington v. Chepton Beencham, 561 Pugh's case, 105 PuUer V. Staniforth, 334 Punnett, Ex parte, 767 Purdew v. Jackson, 768 Pust V. Dowie, 327 Pybus V. Gibb, 683 Pyke, Ex parte, 288, 738 Q. QuAirrooK v. England, 723 Quamian v. Burnett, 157, 338 Quartz HiU Gold Mining Co. v. Eyre, 725 Quebec Mar. Ins. Co. v. Commercial Bk. of Canada, 353, 455, 467, 458 Queen's Benefit Building Society, Ex parte, 767 R. Baba v. Byland, 38 Eabey v. Gilbert, 274 Race Horse, The, 371 Radenhurst v. Bates, 210 Raft of Timber, 389 Ragg V. King, 656, 667 Raggett )'. Axmore, 294 Raikes v. Poreau, 717 — V. Todd, 590 Railton v. Hodgson, 149 — V. Matthews, 686 Raine v. Bell, 451, 463 Rajah, The, 366 Ralli V. Dennistoun, 257 — V. Janson, 443, 473 Ralph V, Harvey, 1 1 Ramchun MuUiok v. Luchmeecund Rada- kissen, 262 Ramsden v. Brearley, 6 Ramsey v. Eaton, 753, 771 Ramsgate V. H. Co. i>. Montefiore, 75, 77 Ramskill v. Edwards, 80, 788 Ramstrom v. Bell, 445 Ramuz v. Crowe, 298 Ranee's case, 113 Randall v. Cockran, 471 — V. Newsou, 645, 647 Randell v. Trimen, 162 Randleson, Ex parte, 723 Ranelagh ». Hayes, 679 Rankin v. PoLter, 402, 461, 463, 467, 469, 472 Rann v. Hughes, 575 Rannie v. Irvine, 213 Ransford v. Maule, 720 Ransoms v. E. Counties Rail., 317 Raper v. Birkbeck, 292 Raphael v. Bank of England, 217, 262 — V. Piokford, 303 — & Sons, V. Burt & Co., 649 Rapp 4). AUnutt, 231 — V. Latham, 37, 43 Rapson )). Cubitt, 167 Rasche, The, 390 RashdaU v. Ford, 91 Rawbone, In re, 774 Rawling v. Wiokham, 20 Rawlings v. Bell, 170 Rawlins v. Desborough, 500 Ray V. Barker, 612 Rawlinson v. Moss, 23 — V. Stone, 251 "Rayimn, Ex parte, 746 — V. Johnson, 604, 640, 665 Rawstome v. Gandell, 56 Raymond v. Minton, 563 Rayner v. Godmoud, 441 — V. Grote, 172 — 0. Preston, 503, 510 Read». Anderson, 120, 134, 160, 179 — V. Bailey, 746, 748 — V. Bonham, 468, 470, 471 — V. Chapman, 656, 657 — V. Goldriug, 669 — V. Hutchinson, 658, 672 — V. Nash, 570 — ». Rann, 132 Reade v. Bentley, 36 Reader v. Eangham, 571, 672 Reay v. White, 670 ReddeU, In re, TIO Redgrave v. Hurd, 20, 664 Redhead v. Midland Rail. Co., 302 xlviii INDEX OF CASES. Eedman v. London, 452 Eedmayne v. Burton, 248, 299 Redmond v. Smith, 407, 455, 532 Eedpath v. Wigg, 176 Reeoh v. Kennegal, 675 Reed, Ex parte, 713, 787 — & Bowen, Ex parte, 726 — ■». Deere, 444 — V. Royal Exchange Ass. Co., 494 — V. White, 53 — V. Wilmot, 714 Rees V. Berrington, 293, 683 Reese River S. M. Co. i>. Smith, 73, 78 — V. Silver Mining Co., 664 Reeve, Ex parte, 746 — V. Davis, 210, 337 — V. "Whitmore, 755 Rega, Ex parte, 754 Regina v. Allen, 188 — V. Amaud, 189, 192 . — 41. Conirs. Inland Revenue, 174 — V. County Court of Surrey, 780 — V. Creese, 781 — V. Holbrook, 159 — V. Justices of C. C. C, 600 — V. KeDrick, 654, 657 — V. Lord, 662, 564 — V. McCleverty, 198 — V. MitoheU, 781 — u. 'Rohaon, 12 — V. Saddlers' Co., 684 — V. Seherg, 188, 195 — V. Serva, 427 — V. St. Michael's, 624 — V. Stephens, 157, 159 Reid V. Allan, 437 — V. Dreaper, 175 — V. Furnival, 249, 284 — V. Hollingshead, 25, 38 Reimer v. Ringrose, 439, 466, 468, 469 Rein v. Lane, 679 Reis V. Scottish E. L. A. S., 495, 501 Reliance, The, 551 Renno v. Bennett, 536 Renpor, The, 389 Renteria v. Ruding, 343 Restitution Co. v. Pirie & Co., 336 Reuss V. Bos, 64 — «/. Picksley, 577, 578, 616, 624, 625, 627 Renter v. Sala, 636, 637, 639, 656 Revell, Exports, 734, 770 Rew V. Payne, 605 — V. Pettet, 174 Rex V. Almon, 43, 169 — V. Amesby, 562 — V. Arundel, 562 — V. Barton, 622 — V. Bigg, 92, 93 — V. Birdhrooke, 521 — V. Bo'w, 564 — V. Box, 236 — V. Brampton, 522 — V. Brandninoh, 521 — V. Christ's Parish, 621 — V. Clare, 521 Rex tJ.Crediton, 661 — V. Crosoomhe, 520 — v. Davis, 741 — V. Dixon, 159 — V. Elstaok, 621 — V. Friend, 564 — V. Great Bowden, 521 — V. Great Wigton, 562 — V. Great Yarmouth, 521 — V. Gutch, 43, 159 — V. Gwinear, 562 — 1). Hales, 521 — v. Hampreston, 521 — V. Hanbury, 621 — V. Hard wick, 171 — V. Harrington, 562 — V. Hensingham, 520 — V. Huggins, 159 — V. Hunter, 238 — V. Igtham, 561 — V. Islip, 622 — V. KUderby, 8 — V. Lambeth, 521 — v. Long'Whatton, 521 — V. Major, 664 — V. Mitoham, 521 — V. Newton Toney, 521 — V. Odiham, 521 — V. Pearoe, 43 — V. Pershore, 521 — D. Philp, 208 — V. PilMngtou, S21 — V. Polesworth, 522 — V, Potter Heigham, 522 — V. Pucklechuroh, 521 — V. Ridley, 664 — V. Sandhurst, 521 — V. Sankey, 702 — V. Seaton, 621 — V. Self, 564 — v. Sharrington, 522 — V. St. Mary's, 562 — V. St. Matthew's, 621 V. St. Peter's, 521 — V. St. Petrox, 562 — V. Stockbridge, 621 — V. Stokesley, 521 — V. Todderhill, 521 — V. Topham, 43 — V. Weddington, 662, 664 — V. Welford, 622 — V. Whitnash, 663 — V. Wilcox, 226 — V. Wintersett, 522 — -v. Woodhurst, 521 — ■.'. Worfield, 521 — V. Wrington, 521 Reynell v. Lewis, 12, 87, 137 Reyner v. Pearson, 450 Reynolds, Ex parte, 728 — V. Bowley, 774 — V. BuUook, 30, 212 — V. Chettle, 267 — V. Doyle, 260 Rhadamanthe, 'The, 616, 618 Rhind v. WilMuson, 406 INDEX OF CASES. xlix Rhode V. Proctor, 268, 272 Bhodes v. Forwood, 159, 163 Jlibbaus v. Crickett, 679 Riby Grove, The, 557 Rica Gold Co., In re, 101 Rice V. Gordon, 49 Rich V. Coe, 137, 172 — v. Parker, 448, 459 Richards v. Davis, 29, 31 — ' V. Home Assurance Association, 77 — V. Porter, 624 — V. Thomas, 284 — & Co., In re, 96 Richardson's case, 105 Richardson, Hx parte, 28, 773, 774 — -0. Anderson, 141 — tf. Bank of England, 24, 29 — V. Brown, 649 — V. Dunn, 616, 669 — V. Goss, 689 — V. Great EasternRail. Co. ,302 — »/. Harris, 251, 671 — I'. Hastings, 29, 30 — V. Jackson, 667, 668, 669, 681 — V. Midland Rail. Co., 317 — V. NorthEa8temRail.Co.,301 — V. Williamson, 174, 175 Richbell v. Alexander, 768 Riches, In re, 38, 41 Richmond v. Heapy, 66 — 0. Smith, 126 Rickard v. Moore, 623, 651 Riokards v. Murdock, 481 Ricketts v. Bennett, 90 Riokford v. Ridge, 266 Rickman v. Carstairs, 418 Ridgway v. Clare, 60 — V. Hungerford Market Co., 522, 623 — V. Philip and Broadhurst, 16 — V. Wharton, 624 Ridler v. Ridler, 714 Ridley v. Plymouth S. and D. Grinding and Baking Co., 96 — V. Taylor, 42 Ridout V. Bristow, 224, 248 Rigby V. Connoll, 3 Right V. Price, 677 BUey V. Baxendale, 824 — V. Byrne, 742 — V. Home, 303 — V. Paokington, 87 — V. Warden, 626 Rimmer v. Knowles, 131 Ringdove, The, 206 Rinquist v. Ditchell, 139 Rio Tinto, The, 206, 619 Ripley v. Scaife, 373 — V. Waterworth, 183 RipoD, The, 366 Rishton v. Whatmore, 625 Ritchie v. AtMnson, 372 Ritso's case, 75, 104 Rivaz V. Gerussi, 478, 480, 481 Rivera v. Griffiths, 671, 680 .S. — VOL. I. Rix, Ex parte, 746 Roach V. Thompson, 591 Robarts, Ex parte, 282 — V. Tucker, 124, 279, 280 Robbins v. Fennell, 130 Roberts v. Berry, 633 — V. Bethell, 234 — V. Eberhardt, 31 — V. Eonnereaux, 479 — V. Hardy, 5 — V. Peake, 226 — V. Smith, 131, 624 Robertson v. Amazon Tug Co., 645 — V. Carruthers, 468 — V. CJarke, 468 — V. Ewer, 430 — V. French, 408, 417 — • V. Kensington, 229 — V. Liddell, 717 — V. Lookie, 20 — V, Sheward, 237 Robins v. Gibson, 276 — V. May, 225, 226 Robinson v. Anderson, 24 — V. Ashton, 25 — r. Bland, 224, 286, 676 — V. Cheesewright, 407 — V. Cook, 667 — V. Davison, 527, 564 — i-. Gleadow, 36, 211 — V. Hawksford, 224, 265 — «-. Hindman, 520, 622 — V. Knights, 372 — V. Mollett, 120, 121, 135, 141 — V. Ommanney, 738 — V. Price, 383, 387 — V. Rutter, 171 — V. Taylor, 768 — V. Touray, 416, 444 — V. Turpin, 360 — V. Wilson. 689 Robson V. Bennett, 265 — V. Drummond, 23 — V. Oliver, 672 — V. Rolls, 717, 765 Roche V. Campbell, 235 Roderick v. HovU, 231 Rodocanachi v. Elliott, 428, 468 — V. MUburn, 349 Rodger v. Comptoir d'Escompte de Paris, 346, 688, 690, 691, 694 Roe V. Davies, 165 — V. Pierce, 165 Roebuck v. Hammerton, 491 Roelandts v. Harrison, 446 Roffey, Ex parte, 737 — V. Greenwell, 227 Roger's case, 77 Rogers, Ex parte, 664, 738, 754, 761, 765 — V. Boehm, 123 — V. KeUy, 124 — ». Langford, 251 — V. Mackenzie, 748 — V. Maylor, 477 — V. Spenoe, 763 — V. Stephens, 277 d INDEX OF CASES. Eohde V. Thwaites, 609 Rohl V. Parr, 433 EoUe V. Flower, 44 Eolt V. Watson, 299 Eondeau v. Wyatt, 568, 617 Eoope V. D'Avigdor, 737 Eoothi). N. E. EaU. Co., 311, 314 Eoots V. Dormer (Lord), 656 Eoper V. Johnson, 665 — V. Lendon, 508 Eosoow V. Corson, 430 Eose V. Hart, 702, 749, 750 — V. Haycock, 713 — «'. Eowcroft, 723 — t!. Sims, 750 — );. Watson, 755 Eosetto V. Gnmey, 439, 466, 468, 473 Eosevear China Clay Co., ^x parte, 688, 690, 691 Eosa, Hx parte, 750 — V. Bradshaw, 496 — V. Hunter, 430 — V. Parkyns, 10, 13 — V. Thwaites, 415 Eosseter v. Cahlmann, 664 Eossi V. Grant, 559 Eossiter v. Miller, 625 Eotoh V. Bdie, 397, 417, 427, 429 Eotherham Alum Co., In re, 88 Eothery v. Curry, 570 Eothschild v. Currie, 296 Eothwell V. Humphreys, 37 — V. TimbreU, 753, 770 Eound V. Hope Byde, 718 Eouquette v. Overmann, 265, 296, 298 Eourke v. Short, 664 EousiUon v. EousiUon, 2 Eouth V. McMillan, 327 — V. Thompson, 163, 486 Eoutledge v. Burrell, 445, 506 Eoux V. Salvador, 442, 465, 466, 467, 469 Eowe V. Jackson, 769 — V. Osborne, 627, 632 — ■^. Piokford, 689 — V. Tipper, 272, 274 — V. Young, 257 Eowlands v. Spritigett, 270 Eowlandson, ^x parte, 14 Eowley v. Adams, 183 — V. Home, 306 Eoxburghe v. Cox, 702, 707 Eoy, Hx parte, 774 Eoyal Arch, The, 205, 519, 707 — Bank of India's case, 64, 86 — British Bank v. Turquand, 90, 91 — Exchange S. S. Co. i>. Dixon, 384 — Mail S. P. Co. V. English Bank of Eio de Janeiro, 382, 384 Eucker v. Ansley, 407 — V. Cammeyer, 629, 630 — V. Hiller, 275 — V. London Assurance Co., 422 Euddock's case, 33 Eudge V. Bowman, 102 Eudolph, £x parte, 83, 84 Kuffle, Ex parte, 742 Eule V. Jewell, 82 EumbaU v. Metropolitan Bank, 218, 218 EumboU, Ex parte, 726 . Eumseyf. George, 723 Eunquist v. Ditchell, 141 Eusby V. Scarlett, 136, 137 Eusden v. Pope, 206, 207 Eushforth, Ex parte, 589 — V. Hadfield, 321, 375 Eushworth, Ex parte, 739 — V. Hadfield, 701, 704 Eussell, Ex parte, 176 — In re, 589 — V. Austwick, 26 — «. Bangley, 154 — V. Bell, 764 — V. Hankey, 119, 127 — V. Niemann, 361 — V. Palmer, 119, 120 — V. PhiUipps, 267 — V. PoweU, 225 — V. Eussell, 28 Euasian Steam Navigation Co. v. Silva, 325 Ryall V. EoU, 773 Eyder v. Wombwell, 5 Eyland v. Kreitman, 656 Eyley, In re, 729 S. Saokbb, In re. 111 Saddlers' Co. v. Badcock, 399 Sadler, Ex parte, 744 — V. Dixon, 457, 459 — «. Evans, 178, 179 — ». Lee, 43 — v. Leigh, 722 — v. Smith, 179 Saffery, Ex parte, 716 Sahlgreen's case, 77 Sainsbuiy v. Matthews, 618 Salaoia, The, 557, 558 Salaman, Ex parte, 787 Sale V. Lambert, 625 Salisbury v. Townson, 451 Salmon v. Webb, 229 Salomons v. Nissen, 9, 346 — V. Pender, 132 Salte V. Field, 162 Salter ». Woollams, 634 Salvador v. Hopkins, 452 Salvesen v. Guy, 336 Salvin v. James, 506 Sampson v. Burton, 750 Samuel v. Duke, 598 — V. Howarth, 581 — V. Eoyal Exchange Ins. Co., 421 Sandemanv. Sourr, 322, 337, 351, 354 Sanders v. McLean, 342, 345, 348, 635 — V. VanzeUer, 377 Sanderson i'. Aston, 582, 683, 686 — V. Bell, 138, 154, 699, 705 Sandilands v. Marsh, 34, 38, 43 Sands v. Clarke, 266, 267 INDEX OP CASES. Sandy's Case, 75, 104 Sankey Brook C. Co. v. Marsh, 761 Sanquinetti v. Pacific S. Nav. Co., 336 San Roman, The, 328, 349, 454 Santa Cruz, The, 392 Sara, The, 206, 668, 707 Sard V. Rhodes, 290, 671, 672 Sargent, Ux parte, 84, 86 — V. Morris, 319 Sari V. BourdiUon, 625 Sarquy v. Hobson, 433 Sarratt v. Austin, 722 Sarsfield f . Witherby, Inteoduotion, Ixxxi. Saunders V. Drew, 561 — V. Taylor, 55 — V. Wakefield, 574, 575 Sannderson v. Jackson, 624, 627 — V. Judge, 266 Saville, In re, 721, 734 — V. Barchard, 702 — V. Campion, 376 — V. Robertson, 44 Sawtell V. Loudon, 444, 480 Scaife v. Parrant, 301, 310 — V. Tobin, 345, 376, 386, 386 Scaramanga v. Stamp, 366, 363, 464 Scarfe v. Jardine, 44, 45, 46, 52, 53 — V. Morgan, 662, 663, 699, 705 Scarth, & parte, 773 Soattergood r. Sylvester, 600 Sceptre, The, 196 Schilizzi V. Derry, 328 Schiller (Cargo ex), 390 Schloss V. Heriot, 384 Schmaling V. Thomlinson, 116 Schmaltz v. Avery, 170, 171, 172, 175 Schmidt v. Royal Mail S.S. Co., 362 Sohmitz, & parte, 720 Schneider v. Poster, 671, 674 — V. Heath, 667 — V. Norris, 626, 627 Schofield, JSx parte, 780 Schotsmans v. Lancashire and Torkshire Rail. Co., 611, 686, 690, 695 Schroeder ti. Thompson, 420 — t>. Vaux, 407 Schidte, Exparte, 770, 771 — V. Astley, 262 Sohuize & Co. V. Great E. Rail. Co., 304 Schuster v. Fletcher, 388 — r. McKellar, 337, 340 Schwabe v. Clift, 497 Scio, The, 206 Scothom V. South S. R. Co., 305, 320, 343 Scott V. Avery, 490 — o. Bourdillon, 439 — V. Gillmore, 286 — V. Ii'ving, 154 — V. LifEord, 273 — V. M'Intosh, 124 — ». Morley, 7 — V. Newingtou, 706 — r>. Petit, 689 — V. Spashett, 768 — f. Sumam, 125, 127, 767 — f. Thompson, 450, 464 Scott V. Uxbridge & R. R. Co., 668 Scottish Equitable Ass. Co. v. Buist, 601 Scottish Marine Ins. Co. v. Turner, 471, 472 Scottish Petroleum Co., In re, 74, 75, 78 Scott Russell, In re, ll'i Scrimgeour's Claim, 135 Scriveu v. Tapley, 769 Seagrave v. Union Marine I. Co., 401, 403, 406 Sea Ins. Co. v. Hadden, 472 Seal V. Dent, 217 Seaman ». Fonnereaux, 478, 480 Searle v. Lindsay, 524 Seath V. Moore, 606, 608, 613 SeoretaCT of State for India v. Kamachee Boye Sahaba, 120 Seeger v. Duthie, 327 Seignior v. Wolmer, 163 Selby V. Selby, 577 Self V. L. B. & S. C. RaU. Co., 352 Selkrig v. Davies, 183, 765 Sellar v. M'Vioar, 419 Semenza v. Brinsley, 166 Semple v. Pink, 576, 576 Senior v. Butt, 568 — V. Ward, 524 Sentance v. Hawley, 120, 133 Serafina, The, 515 Serle v. Norton, 265 Servante v. James, 210 Seton V. Slade, 163, 577 Sewell V. Royal Exchange Ass. Co., 428, 459 — V. Burdick, 339, 346, 347 Seymour v. Bridge, 86, 120, 135 — V. Greenwood, 158 — V. Maddox, 624 Shaokleford, Ford & Co. v. Dangerfield, 65 Shaffers v. General S. Navigation Co., 526 Shakeshaft, Stirrup & Salisbury, Case of, 748 Shallcross v. Oldham, 123 Shaud V. Grant, 177 — V. Saunderson, 374, 377 Sharland v. Mildon, 179, 180 Sharman^. Brandt, 117, 171, 629 — V. Sanders, 526 Sharp, Ex parte, 726 — V. Bailey, 275 — V. Dawes, 80 — V. Gladstone, 472 — V. St. Saveur, 4 — V. Taylor, 15 Sharpies v. Riokard, 232 Sharpleyi;. Loulii & E. Coast Rail. Co., 74 Shaw, Exparte, 84, 712 — V. Arden, 132 — V. Batley, 770 — V. Benson, 19, 62 — V. Picton, 678 — V. Port PhiUip Gold Co., 93 — V. Poynter, 8 — V. Robberds, 426, 507, 509 — V. Railroad Co., 339 — V. Woodcock, 127, 668 d2 lii INDEX OF CASES. Shawe V. Felton, 411, 421, 424, 473 Sheard, Expa/rte, 110 Shee V. Clarkson, 154 Sheen, Ex parte, 713 , . ^ c i Sheffield (Earl of) v. London Joint Stock Bank, 219 , ^ Sheffield and Manchester Eail. Co. v. Woodcock, 86 Shell, Ex parte, 14 SheUard, Ex parte, 233 Shelton v. Livius, 629 Shenton v. James, 227 Shephard v. De Bernales, 375 Shepherd's case, 84 Shepherd, Ex parte, 745 _ V. Bristol & E. R. Co., 305, 311, 320 _ V. Chewter, 477 — V. Harrison, 344, 605, 612 — V. Henderson, 471 _ v. Hills, 529 — V. Kaia, 649 — v. Kottgen, 383, 388 — 1). Maidstone, 123 Sheppard v. Oxenford, 29 _ v. Wright, 386 SherifE v. Wilks, 41 Sherrington v. Yates, 241, 723, 768 Sherry, In re, 680 Shew V. Thompson, 718 Shield V. Wilkins, 355 Shiells V. Blackbume, 130 Shillibeer v. G-lyn, 129 ShiUing v. Aooid. Death Ins. Co., 492 ShiUito V. Theed, 286 Ship's case, 104 Shipton V. Casson, 651 — V. Thornton, 358, 377, 378 Shipwright ». Clements, 213 Shirley v. Sankey, 286 Shoman ». Allen, 161 Shoolhred v. Nutt, 483 Shore ». Bentall, 353, 455 Short «). Spaokman, 631 Shroder's case, 666 Shropshire Union v. Keg, 86 Shute V. Eobins, 262 Shuttle-worth, Ex parte, 672 — V. Stephens, 224, 238 Sibree v. Tripp, 225, 290, 670, 671, 674 Sichell's case, 105 Sickens v. Irving, 140 SiddaU, In re, 18 — ■». RawcUffe, 289 Sidebotham, Ex parte, 726 Sidney's case, 77, 105 Sieveking v. Maas, 380 SicTewright v. Archibald, 630, 631, 632, 633 Siffken v. Lee, 449 — V. Wray, 687 Sigard v. Roberts, 553 Siggers v. Browne, 274 Sigoumey v. Lloyd, 220 Silesia, The, 391 Sill V. Worswiok, 765 SiUem v. Thornton, 505, 507 Sillito, Ex parte, 746, 748 Simeon v. Bazett, 428, 429, 460 Simmons v. S-wift, 608, 640, 643 Simon v. Motives, 619, 630 Simond v. Boydell, 486 — V. Braddon, 649 Simonds v. Hodgson, 402, 414, 513 Simons «. G-reat Western Rail. Co., 313, 314 Simpson's case, 104 — claim, 35 Simpson, In re, 23 „. Accidental Death Insurance Co., 498 — V. Crippin, 636, 639 — f . Egginton, 290, 675 — «. Hartop, 184 _ V.Lamb, 131, 132 — V. Manley, 581 — V. Mirabita, 741 _ i>. NichoUs, 662, 663 — ». Sikes, 712 — V. Swan, 128 — V. Thompson, 471, 472 — V. Vaughan, 229 Sims V. Bond, 65, 165, 166, 171 — V. Brittain, 55, 166 — V. Marryat, 650 Simson v. Cooke, 55 — V. Ingham, 51, 55, 678 — V. London General Omnibus Co., 302 Sinclair, In re, 772 V. Baggaiey, 234 — V. Stevenson, 773 — V. Wilson, 775 — & Co. V. WaUace, 142 Singer Machine Manufacturers v. Wilson, 65, 214, 215 Singer's Manufacturing Co. v. Loog, 19, 214 Sisters, The, 201 Skaife ii. Jackson, 681 Skandinav, The, 326 SkiUett V. Fletcher, 583 Skinner ». City of Grlasgow Bank, 85 — V. Upshaw, 321, 698 — V. Weguelin, 126 Skinning Grove Iron Co. v. N. E. Rail. Co., 317 Skipp f. Eastern Counties Rail. Co., 524 Slater ti. Jones, 670 Sleat V. Eagg, 306 Sloman v. Cox, 290, 672 Sloper V. Fish, 764, 765 Slubey v. Heyward, 642, 643, 692 SmaU V. Gibson, 455, 458, 459 — V. Moats, 337, 643, 700, 706 SmaUpage and Brandon's case, 295, 296, 297 Smart ». Saunders, 119, 127, 161 Smethurat v. Mitchell, 149, 173 Smith's case, 75, 104, 443 Smith, Ex parte (3 Bro. C. C. 1), 583 — — (Buck, 449), 747 INUEX OF CASES. liii Smith, Ex parte (Co. B. L. 189), 293 — — {5 Ves. 295), 21 — V. Accidental Ins. Co., 498 — V. Anderson, 12, 18, 62, 64, 80 — V. Baker, 644, 728 — V. Bellamy, 267 — V. Birch, 662 — V. Birmingham Gas Light Co., 93 — V. Bromley, 179 — V. Cannan, 711 — V. Cartwright, 93 — V. Chadwiok, 72, 73, 74, 77, 667 — V. Chester, 258, 279 — V. Clark, 687 — V. Coffin, 768 — V. Cologan, 119, 126 — -u. Cowell, 730 — v. Craven, 36 — V. Currie, 718 — I/. Dart, 336 — V. Dearlove, 698 — V. Everett, 212 — V. Goldsworthy, 97 — V. Goss, 688, 693 — V. G<3uld, 517, 518 — V. Hodson, 163, 749 — V. Hudson, 621, 623, 689, 775 — V. Hughes, 644, 667 — ». Hull Glass Co., 95 — V. Kay, 284 — V. Knox, 293 — V. liascelles, 126 — V. Lindo, 119 — V. Lyon, 171 — V. M'Guire, 136, 140, 334 — V. M'Niel, 454 — v. Mercer, 124, 251, 268, 279, 640, 672 — V. Mundy, 248, 299 — V. Neale, 627 — v. New South Wales Bank, 263 — V. Nightingale, 226 — V. Nissen, 260 — V. Oriell, 743 — f>. Oxenden, 133 — ff. Pilgrim, 716 — V. Price, 126, 398 — V. Redshaw, 447 — V. Reynolds, 400, 415 — V. Rohertson, 471 — V. Scott, 424 — V. Sieveking, 377 — V. Smith, 183 — V. Sorby, 121 — V. Sparrow, 663 — V. Stokes, 743 — ». Surman, 617, 618, 623 — V. Surridge, 417 — V. Timms, 712 — V. Topping, 137, 142 — «/. Union Bank, 280 — V. Vertue, 256 — V. "Watson, 14, 25 — V. Weguelin, 174 — V. White, 661 — V. Wilson, 373 Smith V. Winter, 47, 584 — V. Woodcock, 281 Smoutj). nberry, 161, 162, 175 Smurthwaite v. Wilkins, 347, 348 Smyth V. Anderson, 149 Snaith v. Burridge, 41 — V. Mingay, 232 Snead v. Watkins, 698 Snee ». Prescott, 684 Sneezum, In re, 764 Snook V. Davidson, 703 Snow V. Peacock, 217, 262 — V. Saddler, 252 SnowhaU, Ex parte, 161, 713, 771 — V. Goodricke, 152 > Snowdon, Ex parte, 739 — V. Davis, 179 Soames v. Spencer, 629 Scares v. Glyn, 236, 237, 250 — 'O. Rahn, 616 — V. Thornton, 430, 431 Soblomsten, The, 139, 368, 370 Soci^te Gockerill, Ex parte, 779 General de Paris v. Walker, 85, 86 Sodergren v. Flight, 360 Solarte, Ex parte, 739 Solly V. Forbes, 64 — V. Rathbone, 703 — V. Whitmore, 419, 451 Solomon v. Davis, 290 — V. Turner, 284 Solomons «. Bank of England, 217, 220, 252, 285 — V. Davis, 255 — V. Dawes, 165 Somerville's case, 104 Somerville v. Mackay, 26 Somes V. British Empire Shipping Co., 698, 705 Sorensen v. R., 398 Sottomayer v. De Barros, 296 Souch V. Strawbridge, 616 South V. Finch, 213 — Australian Ins. Co. v. Randell, 596 — Carolina Bank v. Case, 32 — Durham Brewery Co., In re, 78, 97 — E. Ry. f. Ry. Commrs., 316 — of Ireland Colliery Co. j>. Waddle, 92, 93 Southall V. British M. L. A. Ass., 62, 111 Southampton v. Brown, 143 — Steam Colliery Co. v. Clarke, 367 Southgate v. Saunders, 741 Southwell V. Bowditch, 172, 173, 175, 176 Spaokman v. Evans, 63, 163 — V. Miller, 714, 773 Spain V. Aruott, 622 — (Queen of) v. Parr, 132 Spalding v. Ruding, 696 Sparkes v. Marshall, 610 Sparrow v. Carruthers, 422 — V. Chisman, 66 Spartali v. Benecke, 614, 641 Spear v. Travers, 642 Spears v. Hartley, 698, 702 liv INDEX OF CARES. Spedding ». Neyell, 175 Speight V. Famworth, 372 Spenoe v. Chodwiok, 367 — V. Union Marine Ins. Co., 462 Spencer's case, 53 Spencers. Billing, 717, 743 — V. Clarke, 501 Spenser v. Slater, 714 Spioer v. James, 213 Spiller V. Westlake, 284 Spiaoer v. Spinoer, 283 Spirit of the Ocean, The, 365 Spitta V. Woodman, 417, 418 Spittle V. Lavender, 176 Splidt».. Heath, 658 Spooner, Ex parte, 753 Spotswood V. Barrow, 623 Spotfcen, In re, 701 Spratt V. HobhoTise, 771 Sproat V. Matthews, 250 Spybey v. Hyde, 680 Squier v. Hunt, 640 S. S. Garston Co. v. Hiekie, 326, 418 St. Aubyn v. Smart, 34, 37, 38 St. Baibe, Ex parte, 748 St. James' Club, 12 St. Olaf, The, 193 St. Panoras v. Parish of Clapham, 561 Stackpole v. Earle, 132 — ». Simon, 499 Staflordshire, The, 513, 615, 516, 517, 518 Stagg ». EUiott, 280 Stainbauk v. Penning, 199, 403, 512, 613 — i>. Shepard, 403, 612, 513 Stamma v. Brown, 430 Stanley v. Western Ins. Co., 608 Stanton v. Austin, 365, 634 — V. Kichardson, 327, 355 Staplefield v. Yewd, 178 Stapleton, Ex parte, 615 Stark V. Oheeseman, 224 Startup V. Macdonald, 635 Staunton v. Wood, 633 Stead ». Dawber, 626 — V. Liddard, 676 — V. Salt, 38 Steadman v. Duhamel, 231 Stedman v. Goooh, 671 Steel V. Uixon, 593 ■ — V. Lester,)9,,'337 — V. State Lirie S.S. Co., 353, 354, 363 — V. Stuart, 33, 57 Steele, Ex parte, Til V. Brown, 714 — V. MTOnlay, 260, 678 — ». M'Kirby, 239 Steigenberger v. Carr, 86 SteigUtz ». Egginton, 33 Stein V. Tglesias, 252; 254 Steinmetz v. Halthin, 769 Stephens, Ex parte, 216, 714 — V. AustraJian I. Co., 403, 416 — II. Badoook, 178 — V. De Medina, 85 — -0. Elwall, 180 Stephens v. Harris, 334 — fr. L. & S. W. By., 307, 308, 309 — V. PeU, 571 — V. Sole, 773 — V. Squire, 570 — •;;. Wilkinson, 683 Stevens v. Biller, 118 — V. Lynch, 292 Stevenson v. Blakelock, 701 — V. Mortimer, 167, 170 — V. Snow, 488, 489 Steward v. Blakeway, 11, 25, 183 — V. Dunn, 244, 271 — V. Greaves, 244 Stewart's case, 78, 84, 104 Stewart v. Aberdein, 154, 155, 398 — ». BeU, 422, 452, 482 — V. Cauty, 410 — v. Eddowes, 627 — V. Forbes, 11, 24 — V. Gladstone, 212 — V. Greenock Mar. Ins. Co., 465, 471 — V. Keunet, 268 — V. M'Kean, 586 — V. Merchants Mar. Ins. Co., 326, 439, 442 — V. Moody, 712 — V. Rogerson, 380 — V. West India and Pacific Steam- ship Co.. 381, 386 Stiles V. Cardiff Steam Navigation Co., 153 Stirling v. Maitland, 169 — V. Vaughan, 403 Stock V. HoUand, 719, 764 Stookdale v. Dunlop, 401, 403 Stockman ». Parr, 270 Stockton Iron Furnace Co., In re, 757 Stoessiger v. South Eastern Kail. Co., 307 Stokes V. Cox, 505, ,507 — ■;;. La Rivi&re, 688, 695 — V. Lewis, 134 Stonard v. Dunkin, 642 Stone, Ex parte, 745 — In re, 14 — V. City and County Bank, 109 — V. Compton, 169, 586 — V. Lingwood, 699 — V. Marine In. Co., 452, 487 — V. Marsh, 43 Stoneham v. Ocean Ry. and. Gen. Ac. Ins. Co., 495 Stonehouse j;. Gent, 199 Stonor*. Fowle, 785 Storer v. Hunter, 773, 776 Storr V. Scott, 573 Stott V. Fairlamb, 283 Stoveld V. Hughes, 642 Stowell V. Robinson, 626 Straker v. Graham, 262 — V. Kidd, 334 — V. Wilson, 31 Strang, Steel and Co, v. Scott and Co., 381, 384 INDEX OF CASES. Iv Strange v. Fooka, 588 — V. Lee, 86 — V. Wigaey, 262 Stranton Iron and Steel Co., In re, 83, 84 Strathnaver, The, 389 Stratton v. Bastall, 681 Stray, Ex parte, 712 ■ Street v. Blay, 650, 651, 660 Streeter, Ex parte, 726 — V. Horlock, 303 Strelley v. Winson, 208 Strickland v. Turner, 606, 645 Stringer, Ex parte, 83 — V. English Ins. Co., 462, 463, 470 Strong V. Foster, 290, 683 — V. Harrey, 668 — V. Natally, 422 Strutt V. Smith, 668 Stubbing v. Heintz, 137 StubbinB, Ex parte, 713 Stubbs V. Holywell Rail. Co., 522, 627 Stuoley V. Bailey, 649 Studds V. Watson, 626 Studdy V. Beesty, 274 Stumore v. Breen, 324, 341 Suburban Hotel Co., In re, 101 SufEel V. Bank of England, 291 SuUivan v. Mitcalfe, 73 Sully, Ex partem 774 Sultan, The, 515 Sumbolf V. Alford, 697 Summer v. Powell, 50 Summers v. Solomon, 137 Sun Kutual Ins. Co. v. Ocean Ins. Co., 482 Suae V. Pompe, 282 Sutherland v. Pratt, 403, 423 — The, 364 Sutton, In re, 722 — V. Gregory, 38 — V. Hawkins, 667 — r. Tatham, 119, 133 Svensden r. WaUaoe, 378, 381, 382, 383, 388, 389 Swain v. Shepherd, 319, 605 — r. Wall, 691 Swainston v. Clay, 773 Swan, Ex parte, 281 — V. Barber, 371 — V. Steele, 16, 33, 41 — V. North British A. Co., 86 Swann v. Phillips, 694 Swanwick v. Sothem, 642 Sweet ti.Pym, 687, 704 Sweeting v. Pearce, 141, 164, 165, 398, 410, 703 — V. Turner, 613 Sweney v. Smith, 668 S-wete V. Fairlie, 600 Swift V. Jewsbury, 116, 163, 678, 595 — V. Winterbotham, 244, 595 Swire ». Cookson, 607 — V. Francis, 93 — V. Leach, 184 Sydney Cove, The, 205, 557 Syers v. Bridge, 453 — V. Syers, 14, 21 Sykea v. Beadon, 19 — V. Dixon, 569 — V. Giles, 127, 164, 163, 170 — V. Sykes, 214 Symonds v. Carr, 656 Symons' case, 6 Syms V. Chaplin, 307, 308 T. Tabbs v. Bendelaok, 448 Tailby v. Official Receiver, 755 Tait V. Levi, 456, 488 Taitt, Ex parte, 744 Taloa, The, 209 Talley v. Great Western Rail. Co., 302 Tallis t>. TaUia, 3 Talver v. West, 622 Tamvaco v. Simpson, 359, 375 Tanner v. Christian, 176 — V. Heard, 205 — V. Phillips, 206 — V. Seovell, 643, 692 Tapley v. Martens, 375, 671 Taplin v. Florence, 170 Tarleton v. Allhusen, 671, 674 — V. Shingler, 291 — V. Staniforth, 498, 606 Tarling v. Baxter, 603, 604, 608 Tarrabochia ». HicWe, 327 Tarrant v. Webb, 524 Tartar, The, 517 Tasker v. Shepherd, 23, 159, 161 Tatam v. Haslar, 262, 284 Tate V. Hyslop, 479, 480, 481 Tatlock V. Harris, 236 Tattan v. Great Western Rail. Co., 301, 303 — V. National S. S. Co., 353 Tatton f . Wade, 594 Tatum V. Catomore, 292 Taurine Co., In re, 106 Tawney v. Crowther, 577 Tayleur v. WUdin, 579 TlnyloT, Ex parte, 14, 290, 716, 736, 739,746 — V. Ashton, 170 — V. Bank of N. S. Wales, 688 — V. Brewer, 131 — V. Bulleu, 649 — V. Burgess, 294 — V. CaldweU, 634 — V. Chester, 168, 661 — V. Clay, 332 — V. Coenen, 714 — V. Curtis, 383 — V. Dunbar, 425, 433 — f. Field, 743 — V. G. N. Rail. Co., 303, 304 — 4>. Hilary, 573 — V. James, 699 — 1,. Kymer, 145, 166, 220, 678 — V. Laird, 564 Ivi INDEX OF CASES. Taylor v. Liverpool and Great Western Steam Co., 329, 363, 427 — V. Mather, 253 — V. Neate, 31, 212, 213 — V. Pilsen Co., 69 — V. Plumer, 123, 128, 767 — V. Eobinson, 706 — V. Stray. 133 — -v. Trueman, 145, 220 — V. "Wilson, 402, 451, 483 Tealdi, Bx parte, 712 Teed v. Johnson, 34 Teignmouth Mutual Ins. Ass., In re, 443 Tempest, Ex parte, 716 — ». Fitzgerald, 623 — V. Kilner, 17, 85 Tennant, Hx parte, 9, 10, 14 Tenneut v. Glasgow Bank, 5, 21, 78, 83, 102 Terry, In re, 776 Teutonia, The, 356, 361 Tew, In re, 14 Thacker v. Hardy, 134, 663, 664 — 1). Moates, 36 Thaokray v. Blaokett, 275 Thackthwaite ». Cock, 776 Thames, The, 342 — (Conservators of) v. Hall, 364 Thames Haven Dock Co. v. Eose, 94 Thames Ironworks Co. v. Patent Derrick Co., 706 Thames and Mersey Mar. Ins. Co. v. Hamilton, Prazer & Co., 425, 432, 433 Theluson v. Ferguson, 446, 453 Thelusson v. Fletcher, 400, 471 Thetis, The, 356 Thicknesse v. Bromilow, 32, 38 Thiis V. Byers, 331 Thirsby v. Helbot, 640 Thorn ». Bigland, 169 Thomas, In re, 739, 774 — V. Atherton, 35, 43 — ». Chirk, 44 — V. Cook, 571, 591 — V. Courtnay, 54 — V. Edwards, 175 — K. Evans,~667, 669 — V. Head, 6 — ». Lewis, 323 — V. Quartermaine, 168, 825 — V. Ehymney Railway, 305 — V. Williama, 672, 573 Thomason v. Frere, 772 Thompson v. Adams, 409, 502 — V. Bell, 37 — r. Bond, 570 — V. Brown, 325, 679 — V. Cohen, 755 — 1!. CoUins, 554 — V. Dominy, 220 — V. Farrer, 187 — V. Gardiner, 630, 631 — V. GiUespy, 446 — V. Havelook, 123 — V. Hopper, 457, 459, 460 — V. Hudson, 678 Thompson v. Lack, 64 — ». Mashiter, 184 — -1). Peroival, 62, 53 — V. Pettit, 773 — V. Roworoft, 472 — «. Roy. Exoh. Ass. Co., 514 — V. Small; 337, 355 — V. Spiers, 43, 773 — V. Wagner, 331 — V. Waithman, 152 — ». Whitmore, 425 Thomson v. Davenport, 149, 151, 173, 175 — V. Weems, 495, 496 Thormau v. Burt, 340 Thomett ti. Haines, 657 ThomhUl i: Neats, 633, 675 Thomley v. Hehson, 467 Thomthwaite, Hx parte, 734 Thornton v. Charles, 631 — j7. Dixon, 183 — I. Kempster, 631 — ■ti. Maynard, 265, 290, 750 — V. Meux, 631 — tJ. Place, 659 Thorold v. Smith, 140 Thorpe, In re, 726, 728 — V. Coombe, 224 — V. Thorpe, 163 Threfall v. Berwick, 698 Thumell v. Balhimie, 660 Tibbitts ». George, 756 Tiokell V. Short, 126 Tidmarsh v. Grover, 292 TidsweU, Ex parte, 748 — v. Ankerstein, 493 Tierney v. Etherington, 422 Tigress, The, 684, 687, 695 Tilbury v. Brown, 755 limmins v. Gibbins, 251 Tindal v. Brown, 166, 269 Tiudall V. Taylor, 355 Tinson v. Francis, 253 Tobin V. Crawford, 140, 142, 376 — V. Harford, 411, 475 — V. Murison, 125 Todd, JSx parte, 777 — V. Emly, 12 — V. Kerrich, 520 — ij. Reid, 164 — V. Robinson, 137 Tomkins v. SafBery, 716 — V. Wiltshire, 124 Tomkinson v. Staight, 623 Tomlins v. Lawrence, 56 Tomlinsont;. Millar, 131 Tope V. Hookin, 770 Topping, Ex parte, 746 Totterdell v. Fareham B. Co., 94 Touche V. Met. Ry. Warehousing Co., 88 Toulmiu V. Anderson, 430, 436, 489 — t. Copeland, 51 — V. Inglis, 430 Tourret r. Cripps, 627 Toussaint ». Hartop, 776 Touteng v. Hubbard, 428 Towers v. Barrett, 660 INDEX OF CASES. Ivii Townley v. Crump, 643, 688 Townshend v. Devaynes, 183 Townson v. Gwyon, 45 1 — V. Wilson, 179 Trapp V. Spearman, 291 Trappes v. Harter, 773 Treadwiu v. G. E. R. Co., 307 Tredwen v. Bourne, II, 86, 91 Tredwin v. Holman, 490 Trevor, JEx parie, 711 — V. Whit-worth, 63, 70, 105 Trident, The, 516 Tiimblev. Hill, 161 Trinity HouBe v. Clarke, 337 Tripp ti. Armitage, 786, 612 Trippet ». Eyre, 161 Tronson v. Dent, 319, 343, 357 Trotman v. Dunn, 622 Trott, In re, 743 — V. Smith, 764 Trueman v. Hurst, 240 — V. Loder, 137, 149, 176 Tryman's Estate, In re, 757 Taoter v. Barrow, 771 Tugman v. Hopkins, 179 TuHett ti. Armstrong, 181 Tully V. Howling, 327, 353, 355 Tmnaoaoori M. Co., In re, 100 Tupper V. Foulkea, 33 — V. Haythorn, 38 Turnbull v. Janson, 455 — V. Woolfe, 486 Turley v. Bates, 608 Turner v. Bridgett, 754 — V. Burkinshaw, 122 — V. Crossley, 667 — v. Cruikshank, 220 — 1/. Davies, 691 — V. Great Western Eail., 309 — V. Hardoastle, 753, 771 — V. Leech, 274 — V. Mason, 622, 623 — V. Robinson, 132, 520, 522 — V. Sampson, 276 — V. Trustees of Liverpool Docks, 344, 401, 611, 688 — V. Vaughan, 285 Turpin v. Bilton, 398 Turquand, Ex parte, 773, 776 — '0. Board of Trade, 743, 758 — r. Marshall, 99, 103 Turrill v. Crawley, 698 Two Ellens, The, 205 Two Sisters, The, 553 Twogood, Exparte, 760 Twopenny v. Young, 684 Twyoross v. Dreyfus, 1 74 — V. Grant, 73, 74 Twyne's case, 607, 714 Tye V. Pinmore, 652, 665 — V. Gwynne, 284 Tyers v. Rosedale and Ferry Hill Ixou Co., 626 Tyler v. Bland, 666, 670 — r. Home, 489 Tyne Commissioners v. G. S. N. Co., 364 Tynte, Ex parte, 723 Tyrie v. Fletcher, 487 Tyson v. Cox, 584 — V. Gumey, 448 — V. Thomas, 664 U. Ueal v. Walton, 753, 771 Udell V. Atherton, 152 Udhe V. Walters, 409 Undaunted, The, 389 Underwood, Ex parte, lob — V. Nichob, 154 — f. Robertson, 468 Union Bank of Kingston-upon-Hull, In re, 111 — of London v. Lenanton, 201, 202 — of M., Ex parte, 764, 774 — — V. Beech, 584 Union Plate Glass Co., In re, 70 United Kingdom Association v. Neville, 412 — Service Company, In re, 702 Unity Banking Association, 722 Universal Disinfeotor Company, In re, 102 — N. T. Fire Insurance Co., In re, 506 Urquhart v. Barnard, 454 — V. Macpherson, 74 Usher v. Noble, 473, 474, 475 Uther V. Rich, 217, 252 Uzielli V. Boston Mar. Ins. Co., 406, 438, 470, 476 VAauANO V. Bank of England, 221, 222 236, 257, 279, 280 Valente v. Gibbs, 330, 418 Valentini v. Canali, 5 Valieri v. Boyland, 341 Vallance v. Dewar, 482 Vallejo V. Wheeler, 430, 431 Valpy V. Gibson, 626, 689 — V. Oakeley, 686, 755 Van Casteel v. Booker, 145, 148, 344, 612 Vandenanker v. Desbrough, 768 Vandenbergh v. Spooner, 574, 625 Vanderlinden, Ex parte, 723 Vanderzee v. WUlis, 702 VandewaU v. Tyrrell, 280 Van Diemeu's Land Co. v. OookereU, 82 Van Duzer's Trade Mark, In re, 215 Vandyck v. Whitmore, 5, 407 Vanheath v. Turner, Intboductioit, Ixxxi. Vanner v. Frost, 210 Van ToU v. South Eastern Rail. Co., 305, 306 Vaughton v. London & N. W. Rail. Co., 309 Vaux, Ex parte, 776 Vauxhall Bridge Co., Ex parte, 773 Iviii i:ndex of cases. Venables v. Wood, 36 Venezuela Rail. Co. ». Kisch, 20 Vere v. Ashby, 32, 44 — V. Lewis, 236 — V. Smith, 125 Vemon, The, 356 — V. Cholmondeley, 676 — V. Hankey, 717 — 1!. Keys, 644 — V. Smith, 510 Vertue v. Jewell, 684, 686 Vibaia, The, 517 Vide V. Fleming', 41 Victoria, The, 365 Villars, Ex parte, 752, 753 Vindobala, The, 2U Viae, Ex parte, 761 Viner v. CadeU, 774 Vivian v. Mersey Docks Board, 390 Vizard's Trusts, In re, 762 Vlierboom v. Chapman, 199, 370 Voisey, Ex parte, 767 VoUant, The, 708 Von Lindenau v. Desborough, 500 Von Tungeln v. Dubois, 479 Vose v. JLancashire and Torkshire Kail. Co., 524 Vron Colliery Co., In re, 96, 102 Vulliamy v. Noble, 47 Vyse V. Foster, 28 "W. ■Wackebbath, Ex parte, 260, 278 Wade's case, 667 Wadling v. Oliphant, 764, 765 WagstafE v. Anderson, 337, 339, 351 Waimmam, Ex parte, 723 Wain V. Bailey, 299 — i>. Warlters, 574, 575 Wainwright v. Bland, 492, 496, 499, 501 Waits. Baker, 343, 345, 611 Waite V. Bingley, 766 Wake V. Atty, 483 — V. Harrop, 175 Wakefield v. Newbon, 179 Walford v. Griffin, 47 Walker, Ex parte, 739, 747 — V. Bartlett, 84, 85, 86 — V. Birch, 700, 703 — V. BiiTell, 131 — V. Butler, 679 — V. Dixon, 656 — ». Hirsoh, 9, 10, 14, 16 — ■«. Jackson, 301 — V. Matthews, 600 — V. Midland Rail. Co., 125 — V. Mottram, 213 ■ — V. Nussey, 624 — V. Parkins, 285 — V. Eostron, 161, 671, 766 — V. York and North Midland Rail. Co., 308, 311, 321 Wallace, Ex parte, Tib — V. Kelsall, 34, 56 Wallace i). Telfair, 126 — V. Woodgate, 699 Wallis V. Day, 2 Wallworth, In re, 776, 776 — V. Holt, 29, 30 Walmsley v. Cooper, 34 — V. Milue, 185 Walsh V. Walley, 522 — V. Whitcombe, 161 — V. Whiteley, 525 . Walstab v. Spottiswoode, 74 Walter v. James, 290, 675 Walton 4'. Dodson, 65 — V. Hastings, 291 — n. Mascall, 268 Walwyn v. St. Quintin, 290, 293 Wandsworth Gaslight Co. v. Wright, 94 Warburton v. G. W. Rail. Co., 524 Ward's case, 84 Ward, Ex parte, 722 — V. Beck, 203, 204, 207 — V. Bell, 700 — V. Evans, 140, 156, 672 — V. Eyre, 676 — V. National Bk. of N. Zealand, 5S7 Ware v. Evans, 264 Waring v. Eaveno, 137 Warlow V. Harrison, 630, 657 Warner i>. M'Kay, 156, 166 — 0. Willington, 625 Warre v. MiUer, 417, 418 Warren, 'Ex parte, 763 — V. Peabody, 367 Warrington v. Furbor, 579, 589 Warwick v. Nairn, 283, 284 — V. Noakes, 119, 666 — V. Rogers, 292 — V. Scott, 454 — V. Slade, 159 Watchorn v. Langford, 505 Waterer v. Waterer, 25, 183 Waterfall v. Peuistone, 773 Waterman v. Ayres, 215 Waters, Exparte, 738 — V. Monarch F. & L. A. Co., 207, 401, 493, 502, 504 — ». Taylor, 20, 22 - Watkins, Ex parte, 747, 776 — V. Birch, 714 — V. Robb, 667 — V. Rymill, 306, 310 V. Vinqe, 137, 579 Watney v. Trist, 17, 30 Watson, Ex parte, 746, 747 — Ex parte. In re Love, 690, 691 — v. Alcock. 684 — V. Holliday, 737 — V. King, 161 — V. Mainwaring, 494, 496 — V. Monarch Life Ass. Co., 400 — V. Peache, 776 — V. Shanklaud, 368 — V. Spratley, 619 — V. Swann, 163, 413 — V. Woodman, 52 Watton, Exparte, 754 INDEX or CASES. lix "Watts V. Ainsworth, 628 — V. Camors, 327 — V. Friend, 617, 664 — V. Shuttleworth, 582 Waugh, In re, 756 — V. Carver, 10, 16 — V. Morris, 331, 408, 661, 662 Way V. Bassett, 62, 261 — V. G. E. Kail. Co., 309 — V. Heame, 234 Wayland's ease, 136, 137 Weald of Kent Canal Co. v. Robinson, 95 Weary v. Aldereon, 141 Weaver v. Floyd, 626 Webb V. England, 564 — V. Fairmaner, 666 — D. SmeU, 699 — V. Spioer, 229, 249 — 1/. Tliomson, 448 — ■/. Weatherby, 678 — f. Whiffin, Sy, 106 Webber, In re, 763 — 41. Granville, 141 — V. G. W. Rail. Co. 320 Webster's case, 81, 104 Webster v. Britisb Empire L. Ass. Co., 677 Wedderburn v. Bell, 4.15 — V. Wedderburn, 25, 26, 31, 211 Wedgwood Coal and Iron Co., 113 Weeks v. Coode, 705 — v. Propert, 91, 177 Wegener v. Smith, 376, 377 WegueUn v. Cellier, 371, 376 Weikersheim's ease, 42 Weir V. Aberdeen, 444, 456, 483 — V. Bell, 653 — • 11. Northern Ins. Co., 608 Weldon v. Gould, 702, 703 Welford v. Beazely, 677 WeUs V. Hopldns, 283 — V. Hopwood, 440, 441 — 1/. Kingston-upon-HuU, 93 — -I/. Osman, 666 — V. Osmond, 656 Welstead v. Levy, 171 Wennall v. Adney, 577 Wentworth v. Outhwaite, 689 West V. Pryoe, 750, 751 — V. Reid, 773 — V. Skip, 24, 743 West of England Bank, In re, lix parte Hatcher, 8, 106, 1 07 West of England Bank, In re. Ex parte Budden, 107 West London Commercial Bank v. Kitson, 90 West Riding, Ex parte, 736 Westboume, The, 390 Westbury v. Aberdein, 480 Western Bank of Scotland v. Addie, 73, 74 — of Canada OH, Lands, and W. Co., In re, 101 Westhead v. Sproson, 676 Westmoreland, The, 535, 553 Weston's cage, 83, 106 Weston V. Barton, 56, 582 — V. Downes, 650 — ii. Foster, 517 — V. Wright, 199 Westropp V. Solomon, 134, 650 Westwick v. Theodor, 563 Westwood V. Bell, 703 Westzinthus, In re, 694 Wetherall v. Jones, 662 Wetherell v. Julius, 764 Weymouth v. Boyer, 700 Whaite v. Lancashire and Yorkshire Rail. Co., 307 Whaley Biidge v. Green, 73 Wheal Buller Consols, In re, 78 Wheatcroft v. Hickman, 10, 32 Wheatley, Ex parte, 716 — V. WUliams, 225, 226 Wheeler v. Collyer, 657 — 'I/. Thomp.son, 556 Wheeltou v. Hardisty, 496, 499, 500 Whinoup V. Hughes, 564 Whinney, Ex parte, 720 Whistler v. Foster, 217, 252, 284, 285 Whitaker v. Edmunds, 281 — V. Howe, 213 Whitbread, Ex parte, 754 Wliitcher v. Hall, 683 Whitoomb v. Jacob, 767 '■ — V. Minchin, 121 White's case, 106 White, Ex parte (L. R. 6 Ch. 397), 115, 128 — — (HQ.B.D. 600), 726,787 — V. Bartlett, 179 ^- V. British Empire M. L. I. A. Co., 497, 498 — V. Chapman, 132 — V. Dobinson, 509 — i>. Garden, 601, 644, 668, 672 — *. Great Western RaU. Co., 311 — V. Lincoln (Lady), 132 — V. North, 225 — V. Parkin, 325 — V. Spettigue, 600 — I. Wilson, 635 — V. Winchester Co., 332 — V. Woodward, 576 WhiteorossWireCo. -o. Savill, 381, 382,387 Whitehead, Ex parte, 760 — V. Anderson, 165, 687, 689, 690, 693, 696 — 1). Barron, 44, 88 — I'. Greetham, 129 — V. Price, 607 — V. Taylor, 161, 163 — V. Tuckett, 139, 141 — V. Walker, 223, 224, 254, 261 Whitehouse, In re, 108 Whitfield V. Brand, 776 Whiting V. Burke, 691, 592 Whitley v. Loftus, 663 Whitlock V. Underwood, 234 Whitmorei). Claridge, 713 — V. Empson, 773 — V. Mason, 756 Ix INDEX OF CASES. Whitley Partners, lAndted, In re, 65, 181 Whittaker, In re, 283, 758 Whittle V. Franhland, 520 WhitweU V. Harrison, 421 — V. Perrin, 210 — V. Thompson, 713 Whitworth v. Davis, 763 — V. Hall, 726 Wiokham». Wiokham, 43, 128, 569 Wicks, Ex parte, 763 Wieler v. SohiUzri, 645 Wienholt v. Roberts, 128 Wiggins V. Ingleton, 541 Wightman v. Townroe, 28 Wigmore v. Jay, 524 Wilders v. Stevens, 281 Wildes V. Dudlow, 571, 572 Wiley V. Cravirford, 193 Wilhelm III., The, 392 — Schmidt, The, 326 WiBde V. Geddes, 455 Wilkins V. Bromhead, 776 — «. Casey, 769 — V. Wilkins, 125 Wilkinson, Ex parte, 713 — ». Alston, 131 — V. Coverdale, 129 — V. Evans, 625 ■ — «. Henderson, 49 — V. Johnson, 124, 279, 292 — V. King, 698 — V. Lindo, 168 — i;. Loudonsack, 661 — V. Martin, 132 — 4). Unvpin, 281, 569, 678 Wilksf. Back, 143 — V. EUis, 118 WUlans V. Ayers, 282 WiUes V. Grlover, 478 Willett V. Chamhers, 37 Willey V. Parratt, 75 Williams, Ex parte, 44, 740, 757 — In re, 748 — V. African S. S. Co., 364 — V. Alsup, 205 — V. Byrne, 520 — V. Byrnes, 674, 625 — ■o. Duckett, 499, 500 — 1/. Evans, 155 — V. Germaine, 259 — ». Griffith, 679 — V. Harding, 106 — i>. Holmes, 184 — V. James, 254, 288, 290 — V. Jones. 27 — V. Keats, 45 — V. Lake, 574 — V. Leaper, 572, 573 — ■». London Assurance Co., 381 — f). London Chartered Bank of Australia, 220 — V. Mason, 153 — V. Millington, 170 — V. North China Ins. Co., 164, 410 — V. Paul, 663 Williams v. Shadholt, 261 — ,,. Shoe, 451, 462, 453 — 0. Smith, 265, 272, 598 _ 0. Stevens, 122 ■ — V. Thomas, 211 _ V. Wheeler, 568, 617 Williamson v. Barbour, 43, 121, 125 — V. Barton, 173 _ V. Bennett, 226 — V. Innes, 418 — ». Johnson, 39 — ». Watts, 240 Willies ■». Farley, 714 Willis V. Bank of England, 152, 170, 770 — V. Dyson, 41 — V. Palmer, 206 — V. Pole, 496 — V. Thorp, 626 Willison V. Patteson, 397 Willoek, Ex parte, 748 Wills V. Noot, 231 Wilmer v. Currey, 50 Wilmsburst v. Bowker, 634, 641,684, 686, 686 Wilson, Exparte, 113, 744, 745 _ V. Andertbn, 178, 180 — V. Bailey, 37, 42 — V. Bank of Victoria, 381 — V. Brett, 129 — V. Butler, 97 — V. Church, 20 — V. Coupland, 571, 675 — 1/. Dickson, 211 — V. Ducket, 489 — V. Eorster, 427, 429 — V. Puller, 169 V. Greenvfood, 30, 31 — V. Hart, 149 — V. Hirst, 678 — V. Johnstone, 30 — V. Jones, 401, 403 — V. Kymer, 376, 704 — V. Lloyd, 53 — ». Marryatt, 408 — V. Merry, 157, 524 — V. Miers, 131 — V. Moore, 130 — V. Norman, 717 — V. Poulter, 140, 163 — V. EanMn, 354, 395, 407, 431, 457, 459 — V. EoyalExehange Assurance Co., 489 — ■u. Smith, 438 — ». Swabey, 268, 269 — V. Tumman, 164 — f. Vysar, 231 — V. Wallani, 766 — V. Whitehead, 36 — V. Wilson, 206 — V. Zulueta, 149, 526, 535 Wiltshire Iron Co., In re, 102, 156 — V. Sims, 127, 144, 168 Winch V. Keeley, 767 Winokworth v. Mills, 570 INDEX OF CASES. Ixi Winder, Ex parte, 713 Windham v. Wither, 290 Windle v. Barker, 367 Wing V. Harvey, 495, 498, 501 Wingate v. Foster, 420, 452 Wingfleld, Mx parte, 612, 776 Winks V. Hassall, 644 Winspear v. Accidental Ins. Co., 498 Winstone's case, 67 Winstone v. Linn, 563 Winter, In re, 749 — V. Haldimand, 476 — V. Innes, 47, 52, 63 — V. Softley, 201 Wlntla V. Cro-vrther, 32, 38, 41, 42 Wirtli V. Austin, 267 Wise*. Great Western Rail. Co., 311, 313, 321 — ». Wilson, 663 Wiseman v. Vandeput, 684 Withall V. Masterman, 292, 293 Withemsea Brickworks, In re, 102 Withington J). Herring, 141 Witt, In re, 126, 702 Wolfe V. Mathews, 3 Wolff V. Horncastle, 133, 413 Wollaston's case, 81 Wollett V. Chambers, 43 Wolstenholme v. Davies, 156 — V. Sheffield Banking Co., 702 Womersley v. Merritt, 68, 60 Wontner v. Shairp, 74 Wood's case, 75, 104 Wood, Ex parte, 23, 28, 744 — In re, 711, 716 Ex parte, Liickes, 711 — V. Argyle (Duke of), 87 — V. Bell, 612 — V. Benson, 286, 574 — V. Braddick, 43 — V. Clark, 184 — V. Dodgson, 746 — V, Dunn, 766 — V. Manley, 634 — V. Mytton, 236 — V. Priestner, 680 — V. Taasell, 634 — V. Woad, 17, 20 Woodall, Ex parte, 720 Woodhouse v. Murray, 711 Woodier' 8 case, 717 Woodland v. FuUer, 697 Woodly V. Coventry, 642 Woods V. Dean, 274, 276 — and Forests (Commissioners of), E:c parte, 754 Woodthorpe v. Lawes, 269 Woodward, Ex parte, 776 — -o. London & N. W. Rail., 307 — V. Miller, 657 — V. Pell, 264, 281 Wookejr V. Pole, 220 Wooldridge v. Boydell, 420 Woolf V. Claggett, 464 Woolfe V. Home, 172 Woolley V. Eeddelien, 367 Wootton V. Steffenoni, 4 Worcester's (Bishop of) case, 698 Wordallt). Smith, 714 Worley v. Harrison, 226 Worms V. Storey, 353 WorraU v. Johnson, 702 — V. Mariar, 768 Worsley v. Demattos, 711 — x/. Wood, 445, 506 Worthington v. Curtis, 492, 493, 494 — V. Sudlow, 564 — V. Wigley, 671 Wragg's Trade Mark, In re, 215 Wray v. Hutchinson, 20, 26 — V. West, 664 Wren ». Kirton, 124 Wright's case, 76 Wright, Ex parte, 756 — In re, 605 — V, Campbell, 345 — V. Dannah, 629 — ». EneU, 704 — V. Fairfield, 763, 764 — V. Fearnley, 770 — V. Hlckling, 680 — V. Horton, 70 — V. Laiug, 679 — V. Leonard, 117 — V. Marwood, 364, 384, 388 — V. Morley, 589 — v. New Zealand S. Co., 330, 380 — V. Nutt, 690 — V. Reed, 669 — V. Riley, 231 — V. Russell, 56, 582 — V. Sampson, 690 — V. Shiffner, 446 — V. Simpson, 579 — V. SneU, 321 Wrightson v. PuUan, 45, 46 Wulffl V. Jay, 683, 58 1, 588 Wyatt V. Campbell, 284 Wydown, Ex parte, 717 Wyld V. Pickford, 307, 321 Wyldman, Ex parte, 290 Wylie, Ex parte, 744, 748 WyUie v. Harrison, 330, 331 Wynne v. Callander, 286 — V. Hughes, 676 X. Xantho, The, 328, 329, 330, 363, 436 Xenos V. Fox, 402, 434, 436 — ». Wickham, 398, 437 Ximenes v. Jacques, 232 Tabboeofoh v. Bank of England, 93 Yarmouth v. France, 626 Yates, Ex parte, 248 — V. Cousins, 20 — V. Dalton, 40 1: xu INDEX OF CASES. Yates V. Finn, 31 — V. Kailstone, 337 — V. Sherrington, 7 SI — V. Whyte, 608 Tglesias v. Eiver Plate Bank, 293 Tonge, Ex parte, 747 York, Newcastle & Berwick v. Crisp, 310 — Tramways Co. v. Willows, 80 Yorkshire Banking Co. 'V. Beatson, 39 — Eail. Wagon Co. v. MacLure, 91 Yoxsxig, Ex parte, 579, 746 — V. Austen, 256, 289 — ■ V. Axtel, 16 — V. Bengal, Bank of, 749 — V. Brander, 210 — V. Cole, 650 — V. Davis, 180 — V. Fletcher, 711 Young V. G-rote, 279 — V. Hope, 770 — V. Hunter, 44 — ». Leamington (Mayor of), 92, — V. Moeller, 376, 377 V. Timmins, 285 — V. Turing, 469 — V. White, 154 Z. Zagtjby 1!. Pumell, 608 Zeta, The, 390 Zoedone Co., In re, 113 Zunz V. South Eastern Eail. Co., 320 Zwilehenbart v. Alexander, 124 Zwinger v. Samuda, 642 ( kill ) INTRODUCTION. Writing in the seventeenth century of mercantile law, Sir John Davies said, "This learning is not common in our books "(«). Modem writers have said the same. In his treatise on the Law of Sale, Lord Blackhum observes, "There is no part of the history of English law more obscure than that connected with the common maxim, that the law merchant is part of the law of the land " (6). In this intro- duction an attempt is made to elucidate only a few of the difficulties surrounding the subject : only the outlines of it are presented. Most of the authorities made use of are mentioned in the notes ; but aid has been derived from Endemann, Groldschmidt, Lastig, Grandolfo, and other writers on the history of mercantile law. About the exact limits of mercantile law there is much difference of opinion ; the division between it and other parts of the law of contract must necessarily be somewhat arbitrary. The French Code de Commerce includes commerce en gMral, comprising a miscellaneous group of subjects, such as partnership, commercial agency, bills of exchange, the contract of affreightment, insurance, general average, faillites et banqueroutes, and commercial jurisdiction ; and the Italian Codice di Commercio and the Grerman Handehgesetzbuch contain similar matter. In this treatise mercantile law is understood to comprise partnership, the law of joint stock companies, agency, bills of exchange, contracts with carriers, the contract of affreightment, insur- ance, sale, bottomry and respondentia, debt, guaranty, stoppage in transitu, lien and bankruptcy. («) Conceming Impositions, o. 3 (1656.) [b) 1st ed. p. 207. Ixiv INTKODUCTION. In many ancient, and even in some modem, authorities, the kx mercatoria is spoken of as a form of private international law. This language was once correct. The statement made by early writers, and repeated hy Malynes, MoUoy, and Blackstone, that " the law merchant is a branch of the law of nations," sometimes meant no more than that it was free from certain technical rules of the common law. But it also recorded the fact that mercantile law grew in great degree out of the transactions between different nations, and that it was, to a large extent, the earliest form of private international law. When Bulkr, J., spoke in Master v. Milkr {a) of the lex mercatoria as " a system of equity, founded on the mles of equity, and governed, in all its parts, by plain justice and good faith ; " when it was said that it was impossible that " the maritime laws of any one' realm should be sufficient for the ordering of affairs and traffic of merchants " (S) ; that the law merchant is a law " whereof all nations do take special knowledge " (c) ; or that a merchant "is not bound to sue according to the law of the land, to abide the trial of twelve men" (. 598, atp. 620. («) See Kensington v. Inglis, 8 East, SOLE TllADKKS. be very strictly pursued (f) . On the conclusion of peace, Sole traders, however, he may recover on a contract executed before the war {x). Infants are incapable of absolutely binding themselves by any contract which is not for necessaries. An infant cannot even state an account or give a cognovit {y) . No action can be maintained against him upon any promise made after fuU age to pay a debt contracted during infancy, or upon any ratification after full age of a promise or contract made during infancy (z) . Of course, therefore, he cannot support the character of a sole trader {a). Nor can he, if he has traded, in the absence of proof of express representation that he was of age, be made a bankrupt ib) . An infant entering into a contract of partner- ship incurs no liability for the debts of the firm ; but if he does not within a reasonable time after coming of age repudiate the contract, he will be held liable as a partner for acts done after that event id). If he has obtained advantages under a contract, e.g., received goods, and cannot place the person contracting with him in the same position as before the contract, he cannot recover money which he has paid [d). 273 ; Clcmentam v. Bleasig, 11 Excli. arc such, liydcr v. H'ombioell, L. R. 4 135, and note, at p. 141 ; De Wahlv. Ex. 32; Barnes v. Toi/e, 13 Q. B. D. Brame, 25 L. J. Ex. 343 {Pollock, 410; Johmtone v. Marks, 19 Q. B. D. 0. B., expresses a doubt whether the 509. contract is avoided) ; Espositoy.Bowdcii, {a) ]ix parte Kibble, ubi sup. 4E. &B. 963. As to a British subject (i) E.t parte Jones, 18 Ch. D. 109, adhering to the Queen's enemies, see overruling Ex parte Lynch, 2 Ch. D. Roberts v. Ilurdi/, 3 M. & S. 533. See 227. Tudor's Leading Cases on Mercantile (c) GoodeY. Hnrrison, 5B. & Aid. 147. Law as to the effect of an outbreak of (d) See Anson on Contract, 5th ed. war on a partnership between an 111, and Fflfc«<(««v. Ca««?i', LawTimes, English subject and an alien (3rd ed.), Dec. 14, 1889. The contracts of infants 523. appear to differ from othervoidablecon- (t)) ^eBVandyclc-if.WTiitmore,\'Eiaat, tracts in at leastonerespect. Ifaperson 475. be induced totakeshaies by afraudulent [x) Clementsonv. Blcssiy, 11 Ex. 145. prospectus, such a contract is voidable ; {y) Oliver v. Woodroffe, 4 M. & W. but after the commencement of wind- 660 ; 37 & 38 Vict. c. 62, s. 1. ing up the right to rescind is gone : (a) The Infants' Relief Act, 1874 Tennent v. Glasgoiv Bank, 4 App. Cas. (37 & 38 Vict. u. 62), o. 2. Ex 615. On the other hand, an infant parte Kibble, L. R. 10 Ch. 373. A who takes shares is not bound by the contract for necessaries is not com- winding-up order. Even if he come prised in this category. As to what of age after the winding up, his status 6 JIBKCANTILE PBKSONS. Sole traders. Married -women are, at common law, incapable of binding themselves personally by contracts (e). By tbe custom of the City of London a married woman may be there a sole trader (/) ; and when a woman's husband is civilly (g), although not physi- cally, dead, or she has been deserted by him and obtained an ofder, which is in force, for protection of her -earnings and property (A), or she is living apart from him under a sentence of judicial separation («'), she may carry on trade as i£ she were a feme sole, for her own support, and in either of these cases may become a bankrupt (y). By the Married "Women's Property Acts (33 & 34 Yict. c. 93 ; 37 & 38 Vict. o. 50 ; and 45 & 46 Yict. c. 75), the Common Law has been materially altered. The following are some of the chief provisions of the Act of 1882, which repeals the two previous Acts and consolidates the law: — " Sect. I. — (1.) A married woman shall, in accordance with the pro- visions of this Act, he capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her sepa- rate property, in the same manner as if she were a, feme sole, without the intervention of any trustee. (2.) A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her sepa- rate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal pro- ceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property ; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise. is unaflEeoted : Symons^ case, 5 Ch. 298. {g) See per Parke, B., in Sarden t. See also Lempriere.Y. Lange, 12 Ch. D. De Keverberg, 2 M. & W. 61, at p. 6i. 675 ; Lindley's Company Law, 5th (A) 20 & 21 Vict. c. 85, s. 21 ; and ed. 810; and infra, chap. 2. see Thomas v. Mead, 2 1'. & P. 88; («) A clear statement Of a mamed andiJamsi^ewT. 5»'e«r%, L. R. 10 Q.B. woman's rights at common law will 147. be found in Lord &?4o)-»8e'« judgment (i) 20 & 21 Vict. u. 85, s. 25. in Cahin v. GaUll, 8 App. Cas. 420, [j) See post. Book 4, c. 3, s. 1 ; and *26. lu re Armstrong, 17 Q. B. D. 521. (/) See a fuU account of this custom See, also, 21 Q. B. D. 2Qi. in Benrd v. Well), 2 B. & P. 93, SOLTi TRADERS. (3.) Every contract entered into by a mamed woman sliall be Sole traders, deemed to be a contract entered into by her with, respect to and to bind her separate property, unless the contrary be shown. (4.) Every contract entered into by a married woman with re- spect to and to bind her separate property, shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire. (5.) Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws, in the same way as if she were a feme sole. " Sect. II. Every woman who marries after the commencement of this Act shall be entitled to have and to hold as her separate property, and to dispose of in manner aforesaid, all real and personal pro- perty which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation in which she is en- gaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic or scientific skill." Section 1 has the effect only of binding a married woman's separate estate. Consequently, if she has, at the time of a judgment against her, no separate estate, the judgment cannot be enforced under sect. 5 of the Debtors Act {k). Nor can she, by a contract entered into at a time when she has no sepa- rate estate, bind property which she may afterwards acquire {I). The expression " separate property," in section 1, includes only that which would, if the Avoman were immarried, be her " pro- perty." It does not, therefore, include a general power of appointment by deed or will of which she is donee, but which she has not exercised ; and a married woman who has become bankrupt cannot be compelled to exercise such power in favour of the trustee in bankruptcy {m). Section 6 enacts that all shares which stand in the name of a married woman are to be deemed, imless or until the contrary (k) Scott v.Morlei/, 20 Q. B.D. 120; [I) Talliser v. Gttrney, 19 Q. B. D. In re Armstrong, 21 Q. B. D. 261. 519. As to debts contracted before mar- (»j) In re Armstrong, 17 Q. B. D. riage, see Axfordy. Eeid, 22 Q. B. D. 521. .5.51. 8 MERCANTILE PERSONS. Sole traders, is shown, her separate property (w). The effect of the Act appears to be that, as regards shares standing in the name of the married woman at the commencement of the Act, her hus- band is liable as a contributory under sect. 78 of the Companies Act, 1862, and that her separate estate is liable to contri- bute (o) ; as to shares placed on the register in her name after the commencement of the Act, her separate estate alone is liable. Clergymen holding any cathedral preferment, benefice, curacy, or lectureship, or licensed, or allowed to perform the duties of any ecclesiastical office, are prohibited from carrying on, in person, any trade or dealing for gain or profit, or dealing in goods, wares or merchandise. Neither can this be done by any one for their use, unless in the ease of a partnership of more than six, or where the interest has devolved upon them by will, descent, marriage, or bankruptcy, and in those cases they must not act as directors or managing partners. There is an exception in the case of schoolmasters and tutors supplying their pupils, or in disposing of books or other works through a publisher or bookseller (jb) . There were formerly numerous disabilities imposed by sta- tutes, which forbade the exercise of certain trades to all persons who had not previously served an apprenticeship thereto {q) : and there were other disabilities, imposed by the customs and laws of corporate towns, which prohibited the exercise of particular trades by strangers within the territories of the respective cor- porations (r). The former class is, however, repealed by statute 54 Geo. 3, c. 96, and the latter is in great part repealed by sect. 247 of the Municipal Corporations Act, 1882 (45 & 46 "Viet. c. 50), which re-enacts sect. 14 of the Municipal Corporations Act, 1835. («) See also sects. 6, 13, 14. 917. (o)^Mrs. Mattheuiman's Case, L. E. 3 (q) See R. v. KiUerby, 1 Wms. Eq. 781 ; In re West of England Bank, Saund. 309, and notes. 12 Ch. B. 284. (y) See Shaw v. Poynter, 2 Ad. & B. {p) See 1 & 2 Vict. o. 106, ss. 28, 29, 312 ; Mayor of Leicester Y. Burgess, 5 B. 30, 31, in Appendix ; and 4 & 5 Vict. & Ad. 246. 0. 14. See Lewis v. Bright, 4 E. & B, CHAPTEE II. OF PARTNERS. Sect. 1. Partnership — what. 2. How formed. 3. How dissolved. 4. Rights and Liabilities of Partners among themselves. 5. Rights of Third Persons against Partners. 6. Rights of Partners against Third Persons. Section I. — Partnership — what. Partnership is the result of a contract, whereby two or Partnership- more persons agree to combine property or labour, for the pur- ^ ** " pose of a common undertaking, and the acquisition of a common profit (fl). There may be a partnership in one transaction as wen as in a continuing business, and between persons out of trade as well as in trade ; since, in either ease, there may be a combination of property or labour, in order to carry on a com- mon undertaking and for a common profit (b). One partner may stipulate to be free from loss, and the stipu- (a) The above definition is retained, though, perhaps, it is open to the objection that it includes cases of joint ownership: e.i/., French ^. Styring, 2 C. B. N. S. 357. In the Partnership Bill (1889), 8. 6, partnership is defined as " the relation ■which subsists be- tween persons who have agreed to carry on business and share profits some way in common" — a definition probably unexceptionable. Compare the Indian Contract Act, ». 239 : re- marks of Jfn-ii-l, M. R., in Pooln/ v. Driver, L. R. 5 Ch. D. at p. 470 MoUwo V. Court of Wards, L. B. 4 P. 0. p. 436 ; Pawsey v. Armstrong, 18 Ch. D. 698 ; Ex parte Tennant 6 Ch. D. 303 ; Steel v. Lester, 3 C. P. D. 121; and Walked- v. Sirsch, 27 Ch. D. 460. (i) £x parte Gellar, 1 Rose, 297 Salomons y. Nlssen, 2 T. E. 674. So- oietatem ooire solemus aut totorum bonorum, quam Grseci specialiter' )toivo7rfafi«v appellant, aut unius ali- cnjus negotiationis : Inst. 3, 2.5. 10 MERCANTILE PERSONS. Partnership— lation will hold good as between himself and his companions (c), '■ though it will not diminish his liability to strangers {d). So, too, one partner may contribute all the money, all the stock, or all the labour necessary for the purposes of the firm. There is no partnership without a community of profits (e). The right to .participate in profits is not conclusive — it is not by itself a presumption — of the existence of a partnership : it is strong evidence of such existence (/). That is a question to be determined by the whole agreement between the parties, their acts, and conduct. " What we have to consider, when we are considering questions as between the parties themselves," said Cotton, L. J., in Walker v. Hirsch {g),^a case in which a ser- vant paid partly by a share of profits claimed to be a partner, — " and not as between strangers and one of the parties, or all of them, is really this': What rights had the contract entered into in fact given one of the parties against the other? . . . What we reaUy have to consider is this. What, on the contract between the partieSj are the rights which that contract has, inter se, given to one as against the other ?" (A). Partnership may approximate to joint ownership. A. and B. agree together to contribute each a sum of money, for the pur- chase of a lot of goods, which they intend afterwards to divide ; in this case, after the purchase of the goods and before the divi- sion, they are joint owners thereof, not partners, unless, indeed, such was their intention (i). If, instead of dividing, they sell (a) Fereday t. Sordern, Jao. 144 ; in Ex parte Tennaitt, 6 _Ch. D. 303 ; Gilpin V. E)ideriey, 5 B. & Aid. 954 ; sunAAdamv. Newhigging, 13 App. Cas. Bond-f. Fittard, 3 M. & W. 357; and 316. see Fx parte Zangdale, 18 Ves. 300. (i) See London Financial Association (d) Tf'augh v. Carver, 2 H. Bl. 235, v. Kelk, 26 Ch. D. 107, p. 143, for a 1 Smith's L. C. 877 ; Fereday v. Sor- discussion of the distinction. dern, Jao. 147, per Lord Fldon ; The following passage from the Wheateroft v. Sichuan, 9 C. B. N. S. judgment of Bacon, V.-C, in London 47, per Lord Granworth, p. 92 ; S. C, Financial Association y. Kelk, ubi supra, 8 H. L. Cas. 268; Bullen t. Sharp, illustrates the distinction :—" One of L. K. 1 C. P. 86. the charges pressed by the plaintiffs (e) See Lindley, Bk. I. Chap. I. was that the directors, by entering {f).Soss V. Farkyns, L. R. 20 Eq. into the agreement of August, 1865, at p. 336. had committed the association to a y) 27 Ch. D. 460, at p. 468. partnership with Mr. Rodocamachi and (A) See also judgment of /«mis«, L.J. , Messrs. Kelk & Lucas, and that PAKT^ER.S. 11 them again, and divide the gain accruing upon the re-sale, they Partnership- become, in the legal sense of that word, partners. Though '- the profit of partners must be joint, they may, if they think fit, arrange that it shall be unequally divided {I). The working of a mine, colliery, or other real property of that description, is looked on to some extent as a trade ; and where several persons, having a common interest in such property, work it in common,- and sell the produce for their benefit, they become partners {ni). Part owners of a ship are not necessarily partners ; they are usually tenants in common ; they have not they had, in this respect, violated and exceeded the terms of the memo- randum, and had exposed the assets of the association to the risks atten- dant upon a partnership. It does not appear to me that either in law or in fact any kind of partnership was created. Each of the three parties tvas entitled under the contract to an vmdivided share in the suiject. Each paid for that share ivith individual separate money. The three had, no doubt, in a sense, «, common interest in the subject ; but no one of the essential elements of a partnership was found to exist in the case, for no one of them could interfere ■with cither of the others in whatever dis- position the others might make of their separate shares ; nor could the death or bankruptcy or transfer or devo- lution of the shares of any one of the parties affect the rights of the others; neither of them could object to the in - troduction of any other person, or be liable in respect of any debt or engage- ment of the others." Pothier thus defines the difference (Traite du Con- ti-at de Societe, 600) :— " (2) La priu- cipale difference entre la societe et cette esp&ce de communaute, c'est que la societe est un contrat, et que la communaute qui en resulte, est formee par la volenti et le consente- ment des parties. Au contraire, cette esp^ce de communaute n'est pas un contrat, et elle se forme sans le oon- sentemeut et la volonte des parties . . . On pent encore apporter cette diffe- rence, que la communaute que forme la sooi^t6 est toujours formee par un seul et mSme titre, qui est contrat de societe ; au lieu que cette esp^oe de communaute sans societe peut se former ou par un mcme titre, ou par differenta titres." [l) Per Lord Loughborough, Coope v. Eyre, I H. Bl. 49 ; Ennmmt v. Coup- land, 2 Bing. 170; Ex parte Langdale, 18 Ves. 300. Si nihil de partibus lucri etdamninominatimconveuerit, fequales scilicet partes et in luoro et in damno spectantur ; quod si expresses fueriut partes, hje servari debent : Inst. 3, tit. 25, 8. 1. And see Stewart v. Forbes, 1 Mao. & a. 137, post, n. {y), p. 24. It is not necessary that a partner's share should be ascertained ; but its not being so is a circumstance tending to show the non-existence of the part- nership ; per Bosanquet, J., in Sowcll V. JBrodie, 6 Bing. N. C. 50. And see Ex parte Marquis of Abercorn, 31 L. J. Ch. 828. (m) Crawshay v. Maule, 1 Swanst, 495 ; Jefferys v. Smith, 1 J. & W. 298 : Sawken v. Bourne, 8 M. & W. 703 : Tredwen v. Bourne, 6 M. & W. 461 Ralph V. Barvey, 1 Q. B. 845 ; Feel v Tliomas, 15 C. B. 714 ; see 2 Atk. 630 Compare Steward v. Blakeway^ L. K. i Oh. 603. 12 MERCANTILE PERSOXS. Partnership— authority as owners to bind each other ; and they usually appoint ^^-^ a ship's hushand, who alone has authority to hind them (w). Many societies, such j for iBstanoe, as clubs, resemble in some respects partnerships (o). But they are not true partnerships; the object is not the acquisition of a common profit ; changes in their members do not affect their existence. A similar remark is applicable to persons who become mem- bers of a provisional committee for the purpose of promoting a railway or other enterprise, though the end which they propose to themselves may be individual profit. By simply consenting to become members of such a committee, and to the publication of their names, they do not authorise the managing committee or the officers to bind them by contracts, even for necessaries, to prosecute the project (p). The right to participate in profits is not conclusive of the existence of a partnership (17). The inference may be rebutted by other facts ; it may appear, for example, that the relationship is that of debtor and creditor, or master and servant (r) . The remarks on this point of Sir Montague Smith, in delivering the judgment of the Judicial Committee of the Privy Council, in Molhvo, March 8f Co. v. Court of Wards (s), have so often been repeated by other judges, that they may be here cited : ' ' It appears to be now established, that although a right to parti- cipate in the profits of trade is a strong test of partnership, and that there may be cases where from such perception alone it may, as a presumption not of law but of fact, be inferred, yet that whether that relation does or does not exist must depend on the real intention and contract of the parties.' It is certainly difficult to understand the principle on which a man, who is neither a real nor ostensible partner, can be held liable to a creditor of the firm. (m) Brodie v. Howard, 17 C. B. 109 ; [p) Eeynell v. Lewis, 15 M. & W. Frazer v. Cuthtertson, 6 Q. B. D. 93. 517 ; Bright t. Button, 3 H. L. 341. (0) Todd V. Emly, 7 M. & W. 427 ; (j) Mollwo, March S; Co. v. Court of 8 M. & "W. 505 ; Lord St. Leonards' ll'ards, L. R. 4 P. C. 419. judgment in Ee St. James's Club, 2 De (/-) Baddekij v. Consolidated Bank, 38 G. M. & G. 383 ; Smith v. Anderson, , Ch. D. 238. 15 Ch. D. at p. 273. See M. v. Bob- (s) L. E. 4 P. 0. 419, at pp. 435, son, 16 Q. B. D. 137. 438. PARTNEliS. 13 The reason given in Grace v. Smith {(), that by taking part of the Partnership- profits he takes part of the fund which is the proper security of ' , the creditors, is now admitted to be unsound and insufficient to support it ; for of course the same consequences might follow in a far greater degree from the mortgage of the common property of the firm, which certainly would not of itself make the mortgagee a partner. Where a man holds himseU out as a partner, or allows others to do it, the case is wholly different. He is then properly estopped from denying the character he has assumed, and upon the faith of which creditors may be presumed to have acted. A man so acting may be rightly held liable as a partner by estoppel. Again, wherever the agreement between parties creates a relation which is, in substance, a partnership, no mere words or declarations to the contrary will prevent, as regards third persons, the conse- quences following from the real contract. ... If cases should occur where any persons, under the guise of such an arrangement, are really trading as principals, they must not hope by such devices to escape liability ; for the law, in cases of this kind, will look at the body and substance of the aiTangements, and fasten responsibility on the parties according to their true or real character " («). The older authorities laid down a number of tests of partner- ships, which are now either of doubtful value or are merely illus- trations of a wider rule. Thus to constitute a community of profits as would make a partnership, a partner, it was said, must not only share in profits, but must share in them as a principal {v). Undoubtedly he must not be a mere agent, factor, or servant, receiving, in lieu of wages, a sum proportioned to the profit gained by Ms employers (a?), or a certain portion of a fund which includes the profits, but is not dependent on them for existence. Still when a servant, agent, or other person, either upon an advance to the person carrying on a trade, or as representing a deceased partner, or selling the goodwill of a busiaess, stipulated for a share in the profits, and so entitled himself to an account of {t) 2 W. Bl. 998. 847. («) SeeSaddekyv. Consolidated Bank, {x) Sarrington y. Churchward, 29 L. 38 Ch. D. 238, at pp. 248 and 262, J. Ch. 621 ; Soss v. Farkyns, L. R. as to oritioiBm of the doctrine that par- 20 Eq. 331; Moore v. Davis, 11 Ch. ticipation in profit raises a presump- D. 261. So a person receiving a por- tion of partnership. centage on sales effected through his {v) See Easterbrook v. Barker, L. R. influence is not liable as a partner : 6 C. P. 1 ; KiJshiw v. JukeK, 3 B. & S. Fott v. Myion, 3 C. B. 32, 14 MEECANTILE PERSOX?. Partnership— them, it was held that he became, as to third persons, a what. partner (y). By the Act to amend the Law of Partnership (2), it is pro- vided that the receipt, by a third person, of a portion of the profits of a trade from the person carrying it on, on the advance of money to him by way of interest under a written contract, or by a servant or agent as his remuneration, or being the widow or child of a deceased partner, by way of annuity, or by a person who has sold the goodwill of the business, as the consideration of such sale, shall not.o/" «) Pearee v. Chamberlain, 2 Ves. Camp. 403, 404, n. ; Minnit v. Whin- senr. 33. erif, 6 Bro. P. 0. 489 ; MoUwo, §c. (j) lovegroee v. Nehon, 3 M. & K. v. Court of Wards, L. E. 4 P. C. p. 20 ; Lindley, 5th ed. 365. 419. ((•) Sray v. Fromont, 6 Madd. 5 ; («) Walney v. Trist, 45 L. J. Ch. D. Jefferys v. Smitl, 3 Euss. 168 ; Kelly v. 412; Fx parte Barrow, 2 Eose, 252 ; Mutton, L. E. 3 Ch. 703 ; Tempest v. M'mUl V. Eeid, 9 Bing. 08 ; Kelly v. Kilner, 2 C. B. 300. EtUton, L. E. 3 Ch. 703. S. — VOL. I. C 18 MERCANTILE PERSONS. Partnership— establlsli such a principle. They relate to dealings hy a partner, !_ during the continuance of the partnership, "with either present or future partnership assets or liabilities. A man obtaining his locus standi, and his opportunity for making such arrangements, by the position he occupies as a partner, is bound by his obligations to his co-partners in such dealings not to separate his interest from theirs, but if he acquires any benefit to communicate it to them. I should be sorry to see the day when the principle of such cases as Feather- stonhaugh T. Fenwicli{s) could be disturbed or called in question. . . . If that or any other bargain, made by a partner with another partner, being concealed, were used for unfair or illegitimate pur- poses in the subsequent part of the partnership concern, and if when the facts became known it should appear that wrong had been done, and damage sustained by means of any such secret arrangement between two partners, redress suitable to the nature of the injury and the circumstances of the case, might probably be found. But that would depend, not on the agreement by one partner to give a beneficial interest in his share to another, but upon the use assumed to have been made of that agreement in an illegitimate way to the prejudice of a third partner, and upon proof of actual damage having occurred " (<). Eespecting the formation of the contract of partnership, it need only further be observed, that it is not one of those which the law requires to be in writing, and it may therefore either be concluded or varied by mere words, or infeired from the acts of the parties {u). The Companies Act, 1862, has imposed a restriction, unknown at common law, upon the number of partners. A partnership may consist of any number not exceeding ten in the case of a banking partnership, and in the case of any other partnership twenty («). A partnership in excess of these limits must be registered under the Companies Act, 1862, or formed in accord- ance with an Act of Parliament, charter, or letters patent, or be (s) 17 Ves. 298. (^) 25 & 26 Vict. c. 89, s. 4, in {t) Lord Selborne, L. C, in Cmseh Appendix. As to the difference he- T. Stewart, 6 App. Cas. at pp. 73, 75. tween a company and partnership, (m) reaeock v. Feacock, 16 Ves. 49 ; Smith v. Anderson, L. E. 15 Ch. D. Aldersonr. C%, 1 Stark. 405 ; Daley. 247; 50 L. J. Ch. 39. As to what Samiltm, 5 Hare, 369, affirmed 2 Ph. associations must be registered, Re Fadatow Assurance Association, 20 Ch. D. 137 ; In re Siddall, 29 Ch. D. I. I'ARTNERS. 19 within the Stannaries Acts. Any partnership carrying on ?*'^"^''^~ business without complying with this proviso is illegal ; and a person dealing with them with notice of the illegality cannot enforce his claim (p). The name of the firm need not be that of any member of it ; partners are free to carry on business under any designation which they think fit to adopt, The designation, however, must not be calculated to deceive the public (a). " It is a fraud," said Cfiffbrd, L, J., in Lee v. JTaleij (a), " on a person who has esta- blished a trade, and carries it on under a given name, that some other person should assume the same name, or the same name with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name." Hence the members of a partnership may restrain a joint stock com- pany from being registered under a name so much alike as to mislead people into believing that they were dealing with the former (b). The name of a firm may be registered as a trade mark for -particular goods or classes of goods (c). Section III. — ITotv dissolved. Three cases have to be considered; (1) when the contract Howdis- solyed. of partnership provides for the dissolution ; (2) when the dis- solution of the partnership takes place by order of the Court ; (3) when the dissolution takes place by operation of law without the aid of the Court. It often happens that at the time of the formation of a con- tract of partnership the parties expressly agree that it shall endure but for a stated period. There may also happen cases in which, though there be no express provision, an implied con- (y) 26 & 26 Vict. c. 89, s. 4, in (a) L. E. 5 Ch. 155, at p. 161 ; Appendix ; Sykes v. Seadon, 11 Ch. D. Mmsam v. Thorley'i Cattle Food, 14 Ch. 669 ; Shaw v. Benson, 11 Q. B. D. 663. D. 748 j Singer's Manufacturing Co. v. («) Massam v. ThorleyU Cattle Food Loog, 8 App. Cas. IS. Co., 14 Ch. D. 748 ; Merchant Banking {b).Sendriks v. Montagu, 17 Ch. D. Co. of London v. Merchants' Joint Stock 638. Co., 9 Ch. D. 660 ; and 25 & 26 Viot. (c) 46 & 47 Vict. o. 57, 88. 68, 66. ). Erom the observations of the Judges ia the case last cited, it may be collected : First, that partners in a trade, strictly mercantile (j), have an authority implied by law to bind each other by bills or notes. Secondly, that partners in some particular businesses, such as farmiag and mining, have, prima facie, no such authority. Thirdly, that this presumption against their authority may be rebutted, by showing, 1st, that the con- stitution and particular purposes of the firm are such as to render it, in their individual cases, necessary ; or, 2ndly, that, though not necessary, it is, in other similar cases, usual ; " for if it were necessary or usual, the law would imply it " (r). Lastly, it is an essential portion of the rule, that the person to whom the firm is to be bound should have dealt horn fide. If he who seeks to charge the firm was himself privy to a fraud ; if he knew, or even if there were circumstances sufficient to (ot) See Lindley on Partnership, 5th {p) Greenslade v. Bower, 7 B. & C. ed. 180. 635 ; Brown v. Byert, 16 M. & W. 262 ; (m) Tales v. Balton, 28 L. J. Exoh. Dickinson v. Valpy, 10 B. & C. 139. *^- (?) See Sarris v. Amery, L. E. 1 (o) Seadky v. Bainhridge, 3 Q. B. 0. P. at p. 154. 316 ; Garland \. Jacomi, L. E. 8 Exoh. (r) Per LittledaU, J., in Dickinson v. 216 ; or a posteddated cheque : Forster Valpy, 10 B. & C. at p. 139. V. Mackreth, L. E. 2 Ex. 163. PARTXERS. 41 induce a man of moderate discernment to telieve, that the Eights of _ tliird persons partner, with whom he contracted, had no authority to bind the against part- rest, innocent members will not be allowed to suffer by his ' weakness or stupidity. " There is no doubt," said Lord Mans- field, " but that the act of every single partner in a transaction relating to the partnership binds all the others. But there is no general rule which may not be infected by covin, or such gross negligence as may amount or be equivalent to covin ; for covin is defined to be a contrivance between two to defraud or cheat a third" (s). With respect to negotiable instruments given in the name of the firm, the rule is, that they cannot be enforced by any party who was guilty of fraud in receiving thera(i{), or who took them, knowing that they had been so fraudulently received, or even without knowing it, unless he gave a valuable consideration for them (m) ; but that they may be enforced by any one who obtained them for value, and without fraud (»), or gave a valuable consideration for them without knowing that they had been frauduently ob- tained {y). The unexplained fact that a partnership security has been received from one of the partners in discharge of a separate claim against himself, is a badge of fraud, or of such palpable negligence as amounts to fraud (s), which it is incumbent on the party who so took the security to remove, by showing either that the partner from whom he received it acted under the {a) Sope V. Oust, 1 East, 53, cited by (m) See Seath v. Sansom, 2 B. & Ad. Lawrence, J. from a note of ^«Wc»-, J. ; 291. lloyd V. Freshfteld, 2 0. & P. 325 ; {x) See Bills of Exchange Act, s. 30, Snaith V. Burridge, i Taunl. 684 ; In in Appendix ; Wintle v. Crowther, re Riches, i De Gr. J. & S. 581 ; Lord 1 C. & J. 316 ; Ex parte Bushell, 3 Galway v. Matthew, 1 Camp. 403; M.ont.'D. ScDeGt. &'i.5; May v. Chap- Willis V. Byson, 1 Stark. 164. In Lord man, 16 M. & W. 355. Galway v. Matthew, a circular, in Willis [y) Swan v. Steele, 7 East, 210 ; Laey V. Byson, an advertisement, had given t. Woolcot, 2 D. & R. 458. notice of the want of authority. See [z] See Sope\. Oust, 1 East, 53, cited Minnit v. Whinery, 5 Bro. P. C. 489 ; by Mr. Justice Lau-rence, from a note Vice V. Fleming, 1 Y. & J. 227 ; Gar- of Bullet; J. ; Shereff y. Wilks, 1 East, Zawrfv. /acomJ, L. R. 8 Ex. 216. 48; Green v. Beahin, 2 Stark. 347. (<) Arden v. Sharpe, 2 Esp. 524. The other partners may sue for it: Fiercy v. Fynney, L. R. 12 Eq. 69. ners 42 MERCANTILE PERSONS. Eights of authority of the rest, or at least that he himself had reason to third persons , /\Ti-i-r7 against part- Deheve SO (a). Lord Ellenoorough appears to have thought that, even in such a case, the onus of showing want of authority in the single partner would lie upon the firm, if it were, from the nature of the transaction, possible for them to procure direct testimony to that effect (5). But this seems to he erroneous. It is clear that unless the security was given or transferred /or a s¶te demand no such presumption will arise (c) ; for, if it he in the ordinary course of commercial transactions, as upon! discount, without any knowledge on the part of the transferee that it was a separate transaction, the firm will be bound though the transferring partijer may have converted the whole produce of the security to iis own use {d). The transfer of a partnership security may be fraudulent in part, yet good for the residue (e). To hold the contrary would tend to shake aU paper credit. Though a transaction may be prima facie fraudulent against the firm, yet it wiU bind them if they subsequently approve of it, for subsequent approbation raises an inference of previous positive authority (/). To constitute notification of an act done in excess of authority, there must be evidence of knowledge. Besides tho cases mentioned in the rule above laid down, the firm may in various other ways be bound by the conduct of a partner. Thus, his admission, his acknowledgment, or representation, is (a) This statement of the law is (c) Musgrave y. Drahe, 5 Q. B. 185. adopted by Keating and Syles, JJ., in See Hogg v. Skeen, 18 C. B. N. S. 426. leverson v. Lane, 13 0. B. N. S. 278; {d) M parte Bonbonus, 8 Ves. 540; Lord Westbm-y, in Ex parte Darlmglm Bayley ou-Bills, 6th ed. p. 63. Banking Co., 4 De Or., J. & S. at p. (e) WintleM. Crowther, IC.&J. 316; 5m; Coc}cburn,O.J.,iia.Kendalr.Wood, Wilson v. Bailey, 9 Dowl. .18, But L. E. 6 Ex. at p. 248. See Sir J. queere, where the biU or note has heen Zeaeh's observations in FranMand v. accepted or made partly for a partner- M'Gmty, Knapp, P. 0. 0. 274; and ship, and partly for » private debt, Lord Eldon's, in Ex parte Bonbonus, 8 seeEllston v. JOeaoon, L. E. 2 0. P. 20. ^^- ®*''- {/) Weikersheim's ease, L. E. 8 Ch. (J) Bidley v. Taylor, 13 East, 175. 831 ; Ex parte Bonbonus, 8 Ves. 540. But see this observation explained, per See Dunean v. lovmdes, 3 Camp. 478 ; Keating, J., in Leverson v. Lane, 13 Ex parte Nolte, 2 G. & J. 306 ; Craw- C. B. N. S. 286. ford v. Stirling, 4 Esp. 207 ; JPaym v. Ives, 3 D. & E. 664. PABTNEKS. 43 evidence against th.eim{g) if tlie representations relate to the ^^'^^"^ business of tte firm (A). Before tlie Mercantile Law Amend- against part- ment Act (19 & 20 Yict. c. 97), an admission by one partner of a _ — '- : debt did not take it out of tbe Statute of Limitations (t). But it would seem that the effect of the Mercantile Law Amendment Act (19 & 20 Vict. c. 97, s. 14) {/) is to make an acknowledgment signed by one partner equivalent to an acknowledgment signed by all the partners, and to make a part payment by one partner equivalent to a part payment by all (/*;). Notice by(/), or to (ot), one partner is equivalent to notice by, or to, all. More- over, as he is the accredited agent of the rest, it follows, upon grounds which we will examine more deliberately in Chapter IV., that they are liable for breaches of contract («), and negligent wrongs (o) committed in such capacity. Nay, they have been held responsible for frauds (p) and breaches of the revenue laws committed by him in his management of the partnership busi- ness (q) ; and may even, in certain cases, be made criminally answerable for him (r). They are also liable for the acts of (ff) Brogden v. Metropolitan Sail. Co., 223 ; Ashworth v. Stamoix, 3 E. & E. 2 App. Cas. 666 ; Wickham v. Wick- 701 ; Blair v. Bromley, 2 Ph. 354 ; ham, 2 K. & J. 478 ; Rapp v. Latham, Cleather v. Twiaden, 54 L. J, Ch. 408 ; 2B. & Aid. 795; Woody. Braddich, 1 Thomas v. Atherton, 10 Ch. D. 185; Taunt. 104. Burnard v. Aaron, 31 L. J. C. P. 334. (A) Sandilands V. Marsh, 2 B. &Ald. (;;) Flumery. Gregory, L. E. 18 Eq. 673. 621 ; Marsh v. Keating, 1 Bing. N. C. (i) Lindley on Partnership, 5th ed. 199 ; WolUt v. Chamhers, Cowp. 814 ; 261. Mapp T. Latham, 2 B. & A. 795; (j) See Appendix, post. Sadler v. Leigh, 6 Beav. 321 ; Blair v. (h) Lindley on Partnership, 6th ed. Bromley, 5 Hare, 542 ; 2 PhiU. 354 ; 263 ; Godwin v. Barton, 42 L. T. 568. Atkinson v. Mackreth, L. E. 2 Eq. 570 ; (C) Mayhew v. Eames, 1 C. & P. 550 ; Biggs v. Bree, 51 L. J. Ch. 263. Sunt V. R. E. A. Co., 5 M. & S. 47. (y) Att.-Gen. v. Stanniforth, Bunb. (m) Williamson v. Barbour, 9 Ch. D. 97 ; Att.-Gen. v. Weeks, Id. 223 ; Att.- 629, at p. 535. This observation is not Gen. v. Barges, Id. See King v. applicable to joint stock companies, as Manning, Comyn, 616; Att.-Gen, y. towhich see TAiMMSOM V. )5)e»-«, 13Sim. Siddoii, 1 C. & J. 220; Att.-Gen. t. 469 ; Bowles v. Page, 3 C. B. 16. Riddell, 2 0. & J. 493. (») Stmie T. Marsh, 6 B. & C. 551 ; (r) R. v. Almon, 5 Burr. 2686 ; R. Ey. & Moo. 364 ; Marsh v. Keating, 1 v. Pearee, Peake, 75 ; R. v. Topham, Bing. N. 0. 199 ; Sadler v. Lee, 6 4 T. E. 126 ; R. v. G/itch, M. & M. Beav. 324. 437. See further on this subject, post, (o) Moreton v. Sarderne, 4 B. & C. Chap. V. Sect. 4. ners. 44 MERCANTILE PERSONS. Eights of tiieir servants or agents acting within the scope of their third persons . against part- authority (s). — The liability of each partner to third persons in respect of the engagements of the others, commences with the commence- ment of his partnership, and is not postponed by postponing the execution of the deed, provided that the partnership have, in fact, commenced {t). He is not liable for contracts pre- viously made (««). If, indeed, after his accession to the partner- ship he receive benefit from them and recognise their existence, he may become responsible by virtue of a new contract to the same effect as the old one, which his conduct will be evidence of his having entered into along with his partners («;). So, with the creditor's assent {x), the liability of the new firm may be substituted for that of the old ; and, as Lord Thurlow observed {y), " If one man having debts takes another into partnership with him, a very little matter respectiag those debts will make both liable." A partner ceases to incur liability upon his dissolving the part- nership, removing his name from the firm, and giving proper («) See Maodonell's Law of Master 976. and Servant, p. 257. (i>) :Ex parte Jackson, 1 Ves. Jun. (<) i««% T. Zei*«s, 1 M. & G. 155. 131; Mx parte Feele, 6 Ves. 602; (») Cati Y. Howard, 3 Stark. 6 ; Vere SeUhy v. Mears, 5 B. & C. 504 ; V. Ashby, 10 B. & C. 289 (a strong Barker v. Sirt, 10 M. & W. 61 ; Dyke case, since there the partnership -was, v. Brewer, 2 C. & K. 828 ; Scarf v. by agreement, to have a retrospective Jardine, 7 App. Cas. 345 ; Solfe, ^c.y. operation). Young v. Sunter, i Taunt. Slower, L. E. 1 P. C. 27. 682 ; Fox V. Frith, 10 M. & W. 135 ; («) Fx parte WiUimns, Buck. 13. SavilU V. Robertson, 4 T. E. 720 ; Fox As to creditors by their conduct snb- V. Clifton, 6 Bing. 776; Thomas v. stituting the HabiUty of a new firm for Clark, 18 C. B. 662 ; Dickinson v. that of an old firm, and releasing the 10 B. & C. 142. See also members of the latter, see Billorough Mowell V. Brodie, 6 Bing. N. 0. 44 ; v. Solmes, 5 Ch. D. 255 ; In re Family Barnett v. lamhert, 15 M. & W. 489 ; Endowment Society, L. E. 5 Ch. 118, Gabriell v. Evill, 9 M. & W. 297; and infra. Hawken v. Bourne, 8 M. & W. 703. {y) In Fx parte Jackson, 1 Ves. Jun. He is not liable by relation : Battley 131, at p. 132. See Fx parte Feele, T. lewis, 1 M.& a. 155; nor for 6 Ves. 602, at p. 604, per Lord .EMo«. goods furnished while he is a member, Bolfe v. Flower, L. E. 1 P. C. 27 ; Me Tinder a contract made before he becatne Family Endowment Society, L. E. s'ch. otie: Whitehead v. Barron, 2 M. & 118. Eob, 243; Beale v. Mouh, 10 Q. B. PARTNERS. 45 notice of the dissolution (z) ; for, mitil the world is duly informed Rights of thereof he continues, as we have hefore remarked, to hold himself against part- out as still in business with his late companions, and will he still "^"' responsible for their engagements (a) ; and, if he do not remove his name from the firm, he gives strangers cause to disbelieve his notice, though he may have promulgated one, and will, therefore, notwithstanding it, continue liable (J). But then this non-removal must, to produce this effect, be the result of his own negligence ; for if his late partners wrongfully persevere in using his name that will not bind him(c). Notice of disso- lution will not be necessary when the partnership is dissolved by death or bankruptcy {d). It is probable, too, that it is not necessary when the partnership is dissolved by operation of law, such as the decree of the Court, or the outbreak of war, making one or more of the partners alien enemies (c). To persons who have not dealt with the firm, notice of the dissolution in the Gazette wiU. be sufficient (/), whether they have seen it or not. But the jury may be satisfied that the fact was brought to their knowledge by advertisement in any other newspaper, or otherwise {g). To persons who have so dealt express notice ought to be given {h) ; and this is usually (z) Oa the question what amounts principle -whj the latter should not to dissolution, see ante, Sect. 3 ; Seath be entitled to notice if their dealings V. Sanaom, 4 B. & Ad. 177 ; Sail v. led them to believe in the existence of Sail, 12 Beay. 414. partnership. The distinction receives (a) Scarf v. Jardine, 7 App. Cas. no countenance from the English deoi- 345, p. 357 ; Parkin v. Carruthers, sions. 3 Esp. 248 ; Graham v. Sope, 1 Peake, (c) Newsome v. Coles, 2 Camp. 618. 154. In Jones v. Shears, 4 A. & E. (d) Lindley on Partnership, 5th ed. 832, it was held, that a retired part- 211. ner, though he had not notified his (e) Griswold\. Waddington, 15 John, retirement, was not bound by the ad- 57. mission of a subsequently appointed (/) Godfrey v. TttrnhiU, 1 Esp. agent of the firm. 371 ; Wrightson v. Pullan, I Stark. (4) Williams v. Keats, 2 Staxk. 290 ; 375. Dolman v. Orchard, 2 C. & P. 106. In [g] Lindley on Partnership, 5th ed. some of the American decisions, e.g., 222. CUyitp V. Sogers, 12 N. T. 283, a, dis- (h) SeeKirwanv. Kiriean, 2C. &M. tinotion is drawn between persons deal- 617; Graham v. Sope, Peake, 208, and ing with the firm on credit and those notes, dealing for cash. But it is not clear on MERCANTILE PERSONS. Bights of third persons against part- ners. done by circular letters (*). But if a fair presumption can be raised from other circumstances that the party had actual notice, that will be enough (/f). Thus a change in the word- ing of cheques has been held notice to a creditor who receives them(/). As to a dormant partner, as his name never appeared ia the firm, of course it cannot be removed; and as the corre- spondents of the house never knew him. to be a partner, they need not be informed of his ceasing to be such (m). Though many may have been aware that he was a partner, he will not be chargeable, except by individuals who knew it at the time of entering into their engagements with the firm (n) ; to such persons he will be liable, if he have not given a proper notice of retirement, or if they have not otherwise acquired knowledge (o), on the principle that a person, who gives to another an authority of a character such as would naturally last, will be estopped from denying the existence of the authority to the prejudice of those who have acted upon it, and who have had no notice of its revocation {p). On his dissolving the partnership, removing his name from the firm, and duly promulgating notice of his withdrawal, all danger of his liability for ^q future acts of his companions is at an end(g'). For some purposes the agency of the partner continues after the dissolution. Thus, it has been held that a surviving partner may give a charge on partnership assets to further secure a debt incurred by the partnership in the lifetime of the deceased partner (r). So, too, when a partnership is dissolved by the (i) Newsome v. Coles, 2 Camp. 617 ; Jenkins v. Blizzard, 1 Stark. 418. (A) M'lverY. Mumble, 16.;East, 169. (I) Barfoot v. Gooiall, 3 Camp. 147, See Marty. Alexander, 2 M. feW. 484 (m) JEvans v. Drtemtnond, 4 Esp. 89 Brooki'y. Enderby, 2 B. & B. 71. See Heath, v. S,ansom, 4 B. & Ad. 177 Carter v. Whalley, 1 B. & Ad. 11. («) Carters. Whalley, 1 B. & Ad. 11 Mimmdson\. Blahey, 31 L. J. Exohi 207. (o) Hvans V. Drummond, 4 Esp. 89 ; Farrar v. Deflinne, 1 C. & K. 580. (ip) Scarf V. Jardine, 7 App. Cas. 345, at p. 357. (?) Finder v. Wilks, 5 Taunt. 612 ; Abel V. Sutton, 3 Esp. 108 ; Wrightson T. Fullan, 1 Stark. 375; Meaih v. San- s'om, 4 B. & Ad. 177. (r) In re Clough, 31 Ch. D. 324 ; W. N. 1887, 40 ; Butcher y. Dresser, i D. M. & G. 542. PAKTNERS. 47 baniruptoy of a partner, the solvent partner may " get in, and lights of insist on gettiag in, the assets of the dissolved partnership" («). against part- Of course the retiring partner wUl be liahle, if he allow the others °^"' to go on using his name, notwithstanding the dissolution (<). Lord Kenyan doubted whether a bill, indorsed by one partner in the name of the firm before dissolution, could be negotiated after- wards (z(). The Court of Queen's Bench, however, subsequently held that a biU drawn by a partnership before the dissolution might be indorsed after the dissolution, to a person having notice of it (f). Abel V. Sutton [u) and Smith v. Winter {t) were not cited upon the argument of this case, which possibly may here- after be thought open to review, since it may be argued that all express authority to indorse was put an end to by the dissolution, and all implied authority by the notice. A retired partner, however, of course remains liable for con- tracts made by the firm while he continued to belong to it. Yet if the partnership be dissolved in consequence of his death, his personal representative stands in a very different situation. At Law he was completely exonerated from responsibility, the rule there being, that personal claims and liabilities survive. Equity, however, unwilling that this maxim should work injustice, con- siders the estate of the deceased partner as liable to the demands of the partnership creditors until the debts which affected him at the time of his decease have been fully discharged («). In strict- («) Cotton, L. J., in JSx parte Owen, withstanding dissolution a partner has 13 Q. B. r>. at p. 116. implied authority to bind the firm so {t) Smith V. Winter, 4 M. & W. 454 ; far as may be necessary to settle and Wal/ord v. Griffin, 1 P. & P. 145. It liquidate existing demands, and to seems that the authority may be express complete transactions begun, but un- or implied from the terms of the sepa- finished, at the time of the dissolu- ration. But authority to wmc^ «^ the tion." See also Campbell on Sale and partnership would not warrant the in- Agency, 492. dorsement of a bill : lb. [x) Kendall v. Samilton, 4 App. (m) Abel v. Sutton, 3 Esp. 108. Cas. at p. 517; Vulliamy v. Noble, («j) Lewis V. Seilly, 1 Q. B. 349. 3 Mer. 593. See the judgment in See Garland v. Jacomh, L. B. 8 Ex. Winter y. Innes, 4 M. & Cr. Ill ; In 220, where it is recognized. In Lind- re Dixon, L. K. 10 Oh. 160. The lia- ley on Partnership, 5th ed. at p. 219, bility of the representatives of a de- the rule is stated thus: — " The doc- ceased partner does not in general trine now in question cannot be car- extend to torts ; as to which the maxim ried further than this, \iz., that not- Actio personalis moritor cum persona 48 MERCANTILE PERSONS. Eights of ness, partnership debts are only joint. This appears from against part- Kendall T. Hamilton (y), where it was held that an action and a °^"' judgment against two persons who had borrowed money of the plaintiffs constituted a bar to another action brought by the same plaintiffs against a third person, who was a partner with them in the business for which the money was advanced ; the circumstance that the judgment was unsatisfied was immaterial ; the debt was joint, not joint and several ; and it was decided, in accordance with King v. Hoare (z), that the matter having become res judicata, by the judgment against two of the co-contractors, no further action lay against the third. In a certain sense such debts are on the dissolution of partnership by death treated as joint and several. "This, however," said Lord Cairns, in Kendall y. Hamilton {y), " is only a compendious expression, which must he interpreted with reference to what were the functions of the Court of Equity, as to partnership debts. The only interposition of a Court of Equity with regard to partnership debts took place in the admi- nistration of the assets, either of the partnership or of a deceased member of the partnership. Where a member of the partnership died, the debts became in the eye of a Court of Law the debts of the survivors ; hut the survivors, on the other hand, in a Court of Equity, had the right, as against the estate of a deceased partner, to say that his representatives should not withdraw any part of the partnership property until all the debts were paid or provided for. If, therefore, a Court of Equity was administer- ing the assets of a deceased partner, it would, in order to clear his estate, ascertain his liabilities to the partnership, and for this purpose would ascertain the debts due from the co-partnership, at his death. From this the transition was easy to giving the creditors of the partnership a direct right, and not merely an indirect right, through the surviving partners, to come for payment against the assets of the deceased partner ; and from this again the transition was easy to the expression which said that partnership debts, in the eye of a Court of Equity, were joint and several — not thereby meaning that a Court of Equity altered or changed a legal contract, but merely that the Court, in order, before distributing in general applies. See New Sombrero [y) i App. Gas. 504. Fhoaphate Co. v. Srlmger, 5 Ch. D. [z) 13 M. & W. 494 ; Cainiefort v. 73 ; Mair v. Sromley, 2 Ph. 364. Chapman, 19 Q. B. D. 229. PARTNERS. 49 assets, to administer all the equities existing with regard to them, Rights of would go behind the legal doctrine that a partnership deht survived a^^ p^! as a claim against the surviving partners only, and would give the ners. creditor the benefit of the equity which the surviving partners might have insisted on" (a). The decision, therefore, in Kendall v. Hamilton has no appli- cation to a case where the partnership is dissolved by death ; and a judgment recovered against one partner is no bar to proving against the estate of a deceased partner (J). Whether, indeed, the claim of the partnership creditors on the separate estate of the deceased shall be postponed to that of his own separate creditors, or whether they shall come in with them pari passu, or whether, lastly, they have any claim against it at all until the insolvency of the partnership estate has been ascertained, are questions which were long unsettled (c). The last of them, however, was resolved by the case of Wilkinson v. Sanderson {d), which decided that the joint creditor is not com- pelled to pursue the surviving partner in the first instance, but may resort at once to the assets of the deceased, without showing that full satisfaction cannot be obtained from the survivor, and may leave the representatives of the deceased to recover what, if anything, shall appear upon the partnership account to be due from the survivor to the estate of the deceased partner. The surviving partners must have been made parties to the suit (e). Since the Judicature Acts a creditor may sue both the sur- viving partner and the personal representative of a deceased partner, and may obtain judgment against them all (/). Since the Judicature Act, 1875, in the administration of »the assets of a person whose estate is insufficient for the payment in (•n,of a. debt by one partiier is payment. or satisfaction by them, all (./) ; so a release or discharge, even withoutideed,;t&, one of several partners or joint debtors, though; the: 'debt be joint and several, is a discharge to them aM.{g). Though a covenant not to sue an individual may be pleaded by him as a release, yet such a covenant does not release the rest {h). (/) Newton v. Slunt, 3 C. B. 673 ; Muir v. Crawford, L. E. 2 H. L. Sc. Ballam v. Frice, 1 Moore, 235. -^PP- *56. {g) Co. Lltt. 232, a. See Collins v. {h) Sutton v. Eyre, 6 Taunt. 289 ; Frosser, 1 B. & C. 682 ; NiehoUon v. Thomas v. Coiirtnay, 1 B. & Aid. 8 ; Revill, 4 A. & E. 675 ; Cheetham v. Lacy v. Kynaston, 12 Mod. 561 ; Bean Ward, 1 B. & P. 630. By special v. Newhall, 8 T. R. 168. Compound- words this operation may, however; ing an action against one of two joint be prevented :' So% v. Forbes, 2 B. & contractors was held no discharge of B. 38 ; Thomson v. Lack, 3 C. B. 540 ; the others : Field v. RoUns, 8 A. & Frice v. Barker, 4 E. & B. 760 ; E. 90. Bateson v. Gosling, L. R. 7 0. P. 9 PARTNEKS. 55 Section VI. — Rights of Partners against Third Persons. (a) As to the mode in ichich rights of partners against third Rights of persons may be acquired. — It has been held that, where one againsrthird party applies to another for a loan, without inquiring whether pewone. the money is to be advanced by the lender as an individual or as member of a firm, he is liable either to the individual or to the firm, as the advance may chance to be made («'). It has also been held that, when one partner sells the goods of the firm in his own name, the whole partnership is nevertheless entitled to sue the buyer for the price (A). But this right of theirs does not preclude the buyer from setting off any debt due to him from the single partner, for the existence of that debt may have been his inducement to deal with him (/). Even in cases of collateral liability, where a written agreement is required by the Statute of Frauds, it has been held that the firm may sue upon a guaranty given to a single partner, if there be evidence that it was given for the benefit of all(w). All this results from an universal rule of law, viz., that where a contract not under seal is made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it, the defendant in the latter case being entitled to be placed in the same situation at the time of the disclosure of the real principal as if the agent had been the contracting party («)• Where a security, which is intended to continue in force not- withstanding any change that may take place in its constitution, is given to the firm, such intent must appear, either expressly or by implication, upon the security (o) ; since otherwise it will (t) Alexander v. Barker, 2 C. & J. («) Sims v. Simd, 5 B. & Ad. 393 ; 133; SimsY. Sond, 5 B. & Ad. 393; Browning v. The Provincial Ins. Co. of Sims T; Britain, 4 B. & Ad. 375. Canada, L. E. 5 P. C. 263. (A) Gothay v. Fennell, 10 B. & C. 671. (o) Baclchame v. Sail, 6 B. & S. 507 ; if) George v. Claggett, 7 T. R. 359 ; Barclay v. Lucas, 1 T. R. 291 ; and see Goi-don T. Ellis, 2 0. B. 821. Sollond v. Teed, 7 Hare, 60 ; Leadley (m) Garrett v. Sandley, 4 B. & C. v. Evans, 2 Bing. 32 ; Saunders v. Tay- 664 ; and see Walton v. Dodson, 3 C. & lor, 9 B. & C. 35 ; Simson v. Ingham, 2 P. 162 ; and Moller v. Zambert, 2 B. & C. 65 ; Simson v. Cooke, I Bing. Camp. 648. 462 ; Grouix Soap Co. v. Cooper, 8 C. B. N. S. 800. 56 * MERCANTILE PERSONS. Rights of become inoperative as to future events on the incomina: or out- partners ^ '■ . . against third going of a partner (^). The same rule is applied to contracts '- under seal and simple contracts (y). By the Mercantile Law- Amendment Act (19 & 20 Vict. c. 97), s. 4 (r) the Legislature has expressly enacted the above principle. However, a promissory note, given to secure advances made by the firm, will be avail- able for the benefit of future as well as present members, if such clearly appear to have been the intention of the makers («). (b) As to the mode in which the rights of the firm against third persons may he determined. — The better opinion, as has been already stated, is that the rights of the firm may ho^m fide be released by any one of the partners (f). Accord and satisfaction, without fraud, to one partner prevent the rest from suing (m). And there is no doubt that payment of a partnership debt to one member is payment to all ; and that even after the firm has been dissolved (»), and notwithstanding a clause in the deed of dissolution that another partner shall receive all the joint debts («). So one partner may give time to the debtor of the firm, as by taking his acceptance (y), or may preclude the partnership from suing by some act which -would render it unconscientious in himself to do so (z). Thus, where Jacaud and Blair, partners in one firm, indorsed a bill to Jacaud and Gordon, partners in another firm, and afterwards received effects from the drawer to discharge it,- which they converted to their o-vm purposes, it was held that Jacaud and Gordon could not sue the acceptor on this bill. " Jacaud," said Lord Ellenborough, (p) See lord Arlington v. Merrick, 84; Sawstomev. Gandell, 15 M. & -W. 2 -Wms. Sanud. 412, and notes ; Strange 304. V. Lee, 3 East, 484 ; PemhertonY. Oakes, («) WalUuie v. EeUall, 8 Dowl. 841 ; 4 Russ. 164 ; Bemee v. GirdUr, 1 N. R. 7 M. & "W. 264. 34 ; Westor^ v. Barton, 4 Taunt. 673 ; («) Porter t. Taylor, 6 M. & S. 166. Wright V. Russell, 2 Bl. 934. (x) King v. Smith, 4 C. & P. 108. (?) Myers v. Edge, 7 T. R. 264 ; Ex {y) TomlinsY. Lawrence, 6 Bing. 376. parte Kensington, 2 V. & B. 79 ; Dry v. [z] Richmond^. Eeapy, 1 Stark. 202 ; Dm>y, 10 A. & E. 30 ; Sollond v. Teed, Sparrow v. Chisman, 9 B. & 0. 241 ; 7 Hare, 60. Wallace t. KeUdll, 7 M. & W. 264 ; (r) See Appendix. /ones v. Yates, 9 B. & C. 532 ; Gordon {«) Pease v. Hirst, 10 B. & 0. 122. v. Ellis, 2 C. B. 821. (0 Phillips V. Clagett, II M. &-W-. PARTNERS. 67 "being a partner with Blair, must be considered as having, Bights of together with Blair, received money from the drawers to take against third up this very bill. How then can he, because he is also a part- P^*^^*"- ner with Gordon in another house, be permitted to contravene his own act, and sue upon this bill, which has been already satisfied as to him ?" (a). {a) Jaeaud v. French, 12 East, 317, at p. 323 ; see Steele v. Stmrt, L. R. 2 Eq. 84. 58 MERCAJsTlLE PKKSONS. CHAPTER III. JOINT STOCK COMPANIES. Sect. 1. Their Nature. 2. Sow formed and regulated. 3. Eights and Liabilities of Members among themselves. 4. Mights against, and Liabilities to, Third Parties. 5. How wound up and dissolved. Section I. — Their Nature. Joint stock A JoiNT Stock COMPANY [established before the passing of aX^nature" *^® enactments presently mentioned (a), and wbich has not adopted their provisions] is a partnership consisting of a large number of members, whose rights and liabilities would be pre- cisely the same as those of any other sort of partners, had not their miiltitude obliged them to adopt certain peculiar regula- tions for the gOTemment of the concern, which are ordinarily contained in an instrument, called a Deed of Settlement. The capital of the company is generally divided into equal parts called shares, a certain number of which is held by each member of the company, and in proportion to these he is entitled to participate in the profits of the undertaking. The inunediate superintendence of its affairs is delegated to a portion of the members, • called directors, subject, nevertheless, to the general control of the body, assembled at stated intervals, or on par- ticular occasions when they may be convened. The general body of shareholders, except upon such occasions, unlike the members of an ordinary partnership, have no power to interfere in its concerns or to bind the company. Such bodies still subsist {a), and if established before the 7 & 8 Vict. o. 110, s. 58, (a) Womereley v. Merriit, L. R. 4 Eq. 695. JOINT STOCK COMPANIKS. 59 which required trading partnerships consisting of more than Joint Stock twenty-five members to be registered, they are legal (J) ; but tte^^natBieT the impossibility or great inconvenience of carrying on its busi- ' ness upon such a footing, frequently induced a company to add to the Deed of Settlement an Act of Parliament passed expressly for its purposes. The vast increase in the number of such bodies, and the importance and extent of the undertakings and business carried On by them in modem times, impelled the Legislature to pass general measures for their regulation, granting them peculiar privileges and powers, but imposing upon them certain rules and obligations. The first class of joint stock companies subject to distinct legislative enactment were joint stock banks of issue, carrying on business beyond the distance of sixty-five miles from London (c) ; and subsequently all joint stock banking com- panies consisting of more than six persons, established since May the 6th, 1844, were regulated by an Act passed in that year (d). This measure continued in force until the year 1857, when the Joint Stock Banking Companies Act, 1857 (e), was passed, subjecting companies formed under the last-mentioned Act, and any new companies, with some slight modifications, to the regulations ordained for other companies by "The Joint Stock Companies Acts, 1856, 1857." In the following year joint stock banks were permitted to register with limited liability, a privilege previously withheld from them (/). Banking com- panies registered under the Act of 1857 are now registered under the Companies Act, 1862 (,17) ; and by sect. 4 of the latter Act all joint stock banks formed since November 2, 1862, con- sisting of more than ten persons, must be formed and registered. (b) See Palmer's Company Preoe- (d) 7 & 8 Vict. c. 113, repealed by dents, 4th ed. 321. the Companies Act, 1862, s. 205. , (c) 7 Geo. i, 0. 46. See a history (e) 20 & 21 Vict. c. 49, repealed'by and brief view of this and the other the Companies Act, 1862, s. 205. Acts presently mentioned in the, judg- If I 2^ & 22 Vict. 0.^91, repealed by ment of Lord Gre^nuiorthf in Oake^r'. tte Companies Act, 1662, s". 28iS.'' '" Turquand, L. E. 2 H. L. 358. \lfi) 25 & 26 Vict. d. ^9,' s.'^k'"-' See- the Act in Appendix. ' 60 MEKCANTXLE PERSONS- Joint Stock under its provisions, unless establislied under a special Act or Companies — , , , , , their nature, letters patent. The result of these legislative measures affecting joint stock banking companies is, that those formed under 7 Geo. 4, c. 46, and not registered since, are governed by that Act and their Deed of Settlement. Banking companies formed under 7 & 8 Vict. c. 113, are governed by their Deed of Settlement and so much of the Companies Act, 1862, as applies to companies registered, but not formed under it. Joint stock banks formed under the 20 & 21 Vict. oc. 14, 19, and 21 & 22 Vict. c. 91, are governed by their rules and articles of association and the Companies Act, 1862; and those formed under the last- mentioned Act are entirely subject to its provisions. With respect to other companies, the statute 7 & 8 Vict, c. 110 («■), was passed in 1844, which established a registry of such bodies, and created a uniform system for the regulation of all companies subsequently projected. But companies incorporated by statute or charter, or authorized by statute or letters patent to sue and be sued in the name of some officer, and companies for executing works which could not be carried into execution with- out obtaining the authority of Parliament, were exempted from these regulations. Formerly, each company of the latter excepted class was governed by the peculiar provisions of the special Act or charter it obtained. This was found to be very inconvenient, and there- fore, in order to produce uniformity, two general Acts, the one termed "The Companies Clauses Consolidation Act "(/;), em- bodying aU the clauses usually contained in Acts of Parliament establishing such companies, for the regulation of their proceed- ings, and the transfer of shares and their general government ; and the other termed " The Lands Clauses .Consolidation Act, 1845 " (I), containing provisions as to their taking lands for such purposes, were passed. These Acts apply to all companies (t) Repealed by Joint Stock Com- 4 Eq. 695. panics Act, 1856, and Companies Act, (i) 8 & 9 Vict. o. 16. 1862. See WomtnUy v. Merritt,!,. R. (Tj 8 & 9 Vict. c. 18. JOINT STOCK COMPANIES. 61 established by Aot of Parliament for the execution of under- Joint stock takings of a public nature after the 8th May, 1845, and consti- their nature, tute a code by which such companies are governed. On account, however, of the peculiar nature and importance of railway com- panies, a third statute, termed " The Eailways Clauses Consolida- tion Act, 1845 " {m), has enacted regulations as to the mode of constructing their works, the amount of and means of enforcing tolls and fares, the making of bye-laws, the recovery of penalties and damages, and objects of a like nature. The Eegulation of Eailways Act, 1873 («), and the Eailway and Canal TrafiBc Act, 1888 (o), have further subjected railway and canal com- panies to the jurisdiction and control of commissioners in the conduct of their business {p). Bodies, the subject of these ordinances, are not, properly speaking, mercantile companies : hence they do not form a fitting subject of enquiry in the present chapter, even were it possible, within the limits of a work like this, to afPord any useful explanation of the system they create, and the decisions upon them. The statute 7 & 8 Vict. c. 110, above referred to, was super- seded by the Joint Stock Companies Act, 1856 {q), which was repealed by the Companies Act, 1862 (r). This latter statute, which is now in force, consohdates the laws relating to Joint Stock Companies, and includes in its operation aU com- panies formed and registered under the Act of 1856 (s), and the Joint Stock Banking Companies Act, 1857. With the exception of companies and partnerships formed imder some other Act, or under letters patent, or engaged in working mines within the jurisdiction of the Stannaries (if), every banking com- pany or partnership consisting of more than ten persons, and (m) 8 & 9 Vict. c. 20. liability. Companies formed underthat (») 36 & 37 Vict. c. 48. See App. Aot are now regulated by the Act of (o) 61 & 62 Vict. c. 25. See App. 1862, which has also a limited applica- (p) See Book III. Chap. 11. tion to companies registered, but not (j) 19 & 20 Vict. c. 47. formed under the above Acts ; see {r) 26 & 26 Vict. c. 89. sect. 177; and even to unregistered (a) There was also an intermediate companies : sect. 199. Act, 18 & 19 Vict. c. 133, which en- (t) 25 & 26 Vict. o. 89, s. 4, See abled companies to acquire limited Appendix. 62 MERCANTILE PERSONS. Joint Stock every other company or partnership, having for its object the th^^^urT acquisition of gain (t), and consisting of more than twenty per- " sons, estahlished since the first of November, 1862, mwst, and any company consisting of seven or more persons associated for any lawful purpose mat/ (ii), he formed and registered under the Act of 1862. Every other company, too, except a railway company (v), whether previously existing, or formed afterwards in pursuance of an Act of Parliament or letters patent, or en- gaged in working mines within the Stannaries jurisdiction, or otherwise duly constituted by law, and every unregistered com- pany consisting of more than seven members may, with the aissent of the shareholders, be registered as a limited, or un- limited, company under its provisions (a?) . If formed for gain, and consisting of more than twenty members, a company must be registered. A trust association, which purchases th^ shares of telegraph or railway companies for the purpose of dividing the proceeds of dividends or sales, is not such a body (y). If an association falling within the class requiring registration is not registered, the Courts will decline to recognize its existence by ordering it to be wound up, or otherwise (z).- If not thus registered, the law of companies established under private Acts of Parliament, charters, or letters patent, is that laid down by those instruments. Companies thus constituted certainly differ very materially from ordinary firms ; but, so far as their Acts, charters, or letters patent have not provided, they are governed by the ordinary law of partnership. There is a class of companies popularly known as " private {t) In re Arthur Average Association, be wound up under sect. 199. L. R. 10 Ch, 845, n. ; In re Fadstow [x) Sect. 180 ; Southall t. British Ass. Association, 20 Ch. D. 137. Mutual L. A. Society, L. R. 6 Ch. 614. («) Sect. 6. This includes companies registered («) It has been decided in Ireland under the Act of 1844, s. 196. that a railway company formed since {y) Smith v. Anderson, 15 Oh. D. 247. 1862, in pursuance of an Act of Par- Compare In re Arthur Average Asso- liament, and consisting of more than ciation, L. R. 10 Ch. 545, n. seren members, may be registered (z) In re Padstow Ass. Association, under the Companies Act, 1862, or 20 Ch. D. 137; Shaw v. Beiaon, 11 wound up under it : In re JEnnis and Q. B. D. 563 ; ISx parte Foppkton, W. Clare My., 3 Ii. K. (Ir.) 94. An 14 Q. B. D. 379. unregistered tramway company may JOINT STOCK COMPANIES. 63 companies," because no shares are issued to the public. But if Joint Stock registered under the Companies Act, 1862, they are subject to their nature, all its provisions (a). Section II. — How formed and regulated. A joint stock company, established before Ist November, 1844, How formed the period prescribed by the first Eegistration Act (i), was regma e usually formed by Deed of Settlement, as it is called, some- times accompanied by a Private Act of Parliament or a royal patent. The Deed of Settlement constitutes trustees of the partnership property, directors of the partnership affairs, auditors of its accounts, and such other officers as the objects of the society require, and contains covenants for the performance of their respective duties, which are specifically set out, as are those of the other partners or shareholders ; it also defines the number of shares, the power and method of transferring them, and of calling for the instalments required to be made thereon : the mode of convening general meetings of proprietors, their rights when convened, and a variety of other rules, suited to the exigencies of the particular undertaking. As far as the pro- visions of this instrument extend it is the law by which the partnership affairs are to be governed ; when it is silent, the general law respecting partnership is to be followed (c). Companies registered under the 7 & 8 Vict. c. 110 (d) were regulated by similar deeds of settlement, and their proceedings in the main continue to be thus governed. They may now^ [a) Trevorv. WM(worth, 12 App.Caa. y. Gill, 4 C. & P. 121; Spademan 409. v.^SoaMs, L. R. 3H. L. 171. (J) 7 & 8 Vict. c. 110. (d) There were a few companies to • (c) Palmer's Company Precedents, which modified letters patent were 4th ed. 345 ; Pickering v. Stephenson, L. granted under the statutes 4 & 5 B. 14 Eq. 322. The powers conferred Will. 4, o. 94 ; 1 Vict. c. 93 ; but it by such an instrument on the directors is doubtful whether any of them still must be strictly pursued. See Moore exist. At all events, they are so few V. Samtnond, 6 B. & C. 456 ; Baviea as not to warrant a notice in such a V. Hawkins, 3 M. & S. 488 ; Dtiearry limited work as this. 64 MERCANTILE PERSONS. Joint Stock however, be, and usually are, registered under, and regulated in how formed other respeets by, tlie Companies Act, 1862 {d). regoia ■ Companies established under the Joint Stock Companies Act, 1856 (c), were formed and regulated by a memorandum and articles of association, which generally contained provisions corre- sponding to those of a deed of settlement. These companies are now subjected to the operation of the Act of 1862, in the same manner as if they had been registered under it ; but the original regulations, so far as they are not inconsistent with the Act, remain in force, with this additional provision, that un- limited companies, whose capital and shares are fixed by their memorandum of association, may, notwithstanding, alter their regulations as to the capital and its distribution into shares; and if the articles of association adopted were those contained in the Act of 1856, the shareholders may vary them by special resolution (/). With respect to companies formed since November 1, 1862, any seven or more persons (g) associated for any lawful purpose mai/, by subscribing their names to a memorandum of association and complying with the requisites presently mentioned as to registration, form an incorporated company (A), imder the pro- visions of the Companies Act, 1862. If they be banking com- panies consisting of more than ten persons, or other companies consisting of more than twenty persons, formed for the purpose of carrying on any other businesses that have for their object the acquisition of gain(«), they must be formed and regis- {d) 25 & 26 Vict. c. 89, s. 196. 176 ; Bulheley v. Sohutz, L. E. 3 P. 0. («) Companies formed imder the 764 ; Bateman v. Service, 6 App. Gas. Joint Stock Companies Acts, 1856, 386 ; In re Matheson Brothers, 27 Ch. 1857, the Joint Stock Banking Com- D. 225. panics Act, 1857, and the Limited (i) Mm-ria v. Amery, 1 C. P. 148 ; Liability Banking Companies Act, Smith v. Anderson, IS Ch. D. 247; are subject to the same rule. In re Fadstow Ass. Association, 20 Oh. (/) 25 & 26 Vict. c. 89, s. 176. D. 137 ; Jennings t. Hammond, 9 Q. (ff) This includes a body corporate, B. D. 225 ; Crowther v. Thorley, 32 Bamed's Banking Co.,'L.'R.SCh. 106; W. R. 330; In re Arthur Average JRoyal Bank of India's Case, L. R. 4 Ch. Association, L. R. 10 Ch. 542. As to 252. trade unions, see 34 & 35 Vict. o. 31, (A) Sect. 6. As to companies formed s. 5, and 39 & 40 Viet. c. 22. abroad, see Reuas t. Bos, L. R. 5 H. L. JOINT STOCK COMPANIES. 65 tered irnder that Act {k). For this purpose, a memorandum of Joint stock association (l), which bears the same stamp as a deed, containing j^,^ formed the name of the company, the part of the United'Kingdom in and regulated. which its registered office will be located, and the objects for which it is to be established, is to be executed. This instrument, in eflFect, is a substitute for, and operates as, a Charter of Incor- poration, and limits the powers of the body. Therefore the members of the corporation have no power to extend the operations of the company beyond those comprehended within its terms. " The memorandum of association is, under that Act " (the Companies Act of 1862), said Lord Selborne, in The Ash- bury Carriage Co. v. Biche {m), "their fundamental, and (except in certain specified particulars) their unalterable law." Any proviso in the articles of association outside these limits, — e.g., a power to pay dividends out of capital, or to extend the business of the company to different matters — will be void(«). It must be signed by seven members at least (o), whose execution of it is to be attested ; and the name must not be that of an existing company, unless that body be in the course of dis- solution and consents (p). The liability of the members may be unlimited or limited. It may be Hmited either to the amount, if any, unpaid on the shares, or to such an amount as the members may guarantee to contribute to the assets of the company ia the event of its being wound up. If the liability is intended to be limited, the word (A) 26 & 26 Viot. u. 89, o. 4. See may be changed; and by sect. 13, Appendix. a company's name may, witli the (/) Forms are given in the second approval of the Board of Trade, be sohediile of the Act. changed at any time, but a new certi- (m) L. R. 7 H. L. 653, at p. 693 ; ficate is necessary. See Shackleford, Att-Gen. v. Great Eastern My. Co., 5 Fori^ Co. v. Dangerjield, L. R. 3 C. P. App. Cas. 473. QeeAshburyy. Wat- 407. The principles applicable to indi- aon, 30 Ch. D. 376. viduals trading under similar names (») Guinness v. Zand Corporation of apply also to companies : Merchant Ireland, 22 Ch. D. 349 ; Ashbiiry v. Banking Co. of London v. Merchants' Watson, 30 Ch. D. 376. Joint Stock Bank, 9 Ch. D. 560 ; Singer (o) The signature may be by an Machine Manufactmers v. Wilson, 3 agent, whose authority need not be by App. Cas. 376. As to injunction to deed. In re Whitley Partners Limited, restrain a new company from apply- 32 Ch. D. 337. ing for registration under a name cal- (j)) 25 & 26 Viot. 0. 89, s. 20. If culated to deceive, see Sendriks v. the name so nearly resemble that of Montagu, 17 Ch. D. 638. another company as to deceive, it S. — VOL. I. F tiO ju;kcanti],e pehsoxs. Joint stock "limited" mu^t be i^e last word of the name of the company (o). how formed Where the limit is hj shares, the memorandum of association and regulated. ^^^^ ^^^^^ ^j^^ liaHlity to be limited as well as the amount of the capital, which must be divided into shares of a fixed amount (»•). Each member must take at least one share, and ■vyritethe number he takes opposite to his name in the memorandum of associa- ti|m (-s). Where ,tl^^ .liability is limited by guarantee, the memo- r9indi|m must.Gojit|||n ^ decl^ration^that, in the event . ()f, the company being wound up, each member imdertakes to contribiBte towards the liabilities- of the company, such amount as may Ijp required, not exceeding a specified amount {tj. The HatbiHty of the company, too, may be limited, but that of the directors or manager or managing director unlimited (m). The memorandum of association is to be registered with the registrar of joint stock companies (»). With it, articles of association printed, stamped and signed by each subscriber, prescribing regulations for the company in separate para- graphs numbered, map, in the case of a company limited by shares, and shall, in all other cases, be delivered to the registrar. If the company be limited by guarantee, or un- limited, these articles must also state the number of the shares, where the capital is divided into shares, and where not so divided, the proposed number of the members. Forms of articles are given, which may be adopted wholly or in part by the companies to which they are applicable. In the ease of a company limited by shares, the articles contained in Table A. of the first schedule, so far as they are applicable, and not excluded or modified by the registered articles (y), (?) 26 & 26 Viot. c. 89, s. 8. See (<) Ibid. s. 9, and42 & 43 Vict. c. 76, sect. 23 of 30 & 31 Vict. c. 131, as s. 5. to associations not for profit. („) 30 & 31 Vict. c. 131, s. 41. See M 25 & 26 Viot. c; 89, s. 8. He lion Imuranoe Go. v. J^ker, 12 Q. B. Financial Corporation, L. E. 2 Cli. 714. D. 176 These may now be subdivided after' \,;) 25 & 26 Vict. .. 89, ss. 6, 11, 7rt ^71' ,?' ^'''*- "■ '''• ^^- '^- ^ ^t^t^^'^"* °f ^- ^-°""t of th^ 21 22. Butthiswillnotprevent share- nominal share capital of the company holdersfrombeingliableforanyamount must be deUvered to the registrar. specially provided for by the articles. upon which an ad valorem stamp dut^ m.u.U's case, L R 20 Eq. 585 ; of 2s. for every 100^. and any fraction McKeu-an's ease, 6 Ch. D. 447 ; Zion of 100/. over aay multiple of 100/. of ^suranceAssoc,aUon v. Tucker, 12 Q.B. the amount of such capital is charged: '1 ^ o'- fc or -XT- . ^^ '^'°*- 0. 8, s. U ; 52 Viot. c. 7,s. 16. W 2o & 26 Vict. c. 89, s. 14. (y) 25&26Vict.c.89,BS.U,15, 16,17. JOINT STOCK COMPANIES. 67 become its regulations, to the same extent as if they were Joint stock its registered articles of association (z). how formed As the regulations thus furnished by the Act are generally regaia • varied by each company, it would be useless to detail them (z). Suffice it to say that generally they provide for the acceptance, transfer, transmission and forfeiture of shares, and their conversion into stock; and, where the capital is not divided into shares, they define the conditions upon which persons become members of the company. They provide for the making and payment of calls ; the increase of capital ; the general meetings of the company and the proceedings thereat ; the votes of the members ; the number, powers, disqualification and proceediugs of the directors; the mode iu which divi- dends are to be declared and paid, the accounts of the company kept and audited, and notices to the members given ; also the event, if any, upon the occurrence of which the company is to be dissolved. When registered, the memorandum and articles bind the company and members (a), in the same manner as if each member had executed a covenant to conf onn to them ; and all monies payable under them by the members to the company become debts in the nature of specialties (6). The memorandum is the charter of incorporation of the com- pany and defines its powers (c). The memorandum cannot be altered (d) except in the following particulars : — The company may by special resolution (e), passed by a majority of three-fourths and confirmed by a simple majority of the members present in person or by proxy at two general meetings, (1) change its name (/) ; (2) render unlimited the liability of its directors, managers, or managing director (g) ; (3) repay accumulated undivided profits {z) See Appendix. and balances. Per Jessel, M. E., (a) 25 & 26 Vict. o. 89, ss. 16 and 18. DuJee's case, 1 Ch. D. 620, at p. 623 ; (i) Ibid. 8. 16. and 8ee Winatme's case, 12 Ch. D. 2."i9 ; (c) Per Cairns, L. C, Aahiury Co. Zord Claud Mamillon's case, It. R.S Ch. V. Siche, L. R. 7 H. L. 663, at p. 668. S48. {dj Semile, it is alterable as to parti- (e) 25 & 26 Vict. c. 89, s. 51. culars not required by the statute; (/) Ibid. s. 13. e.g., where a shareholder subscribed (ff) 30 & 31 Vict. e. 131, s. 8. for B shares and agreed to take A shares f2 68 MERCANTILE PERSONS. Joint Stock in reduction of the paid-up capital {h) ; (4) increase, consoli- how?o^er date, sub-divide, or convert into stock, or reduce the share and regulated. ^^^:^^^ ^^ ^^^ company («). The registrar retains and registers the memorandum and articles thus delivered to him, and on payment of his fees certifies under his hand that the company is incorporated, and, in the case of a limited company, that it is limited. Thereupon the subscribers of the memorandum, together with such persons as may from time to time become members of the company, are constituted a body corporate with perpetual succession, a common seal, and power to hold lands (A) ; and the certificate thus issued becomes conclusive (/.). evidence that the statutory requirements with respect to registration have been complied with. Every company must have a registered office, and notice of its situation, and of any change in it, must be given to the registrar {m). A register of members, the most important record of the company, commencing from the registration of the company, is to be kept at the registered office (w) in one or more books, wherein must be entered the names, addresses, and occu- pations (if any) of the members ; the shares, in the case of a company, having a capital divided into shares, held by each member, distinguished by numbers, and the amount paid, or considered to be paid thereon ; the dates at which the name of each member was entered, and at which any person ceased to be a member (o). If the capital be divided into shares, a list must be made once at least in every year of the name, address, and occupation of each person who, on the fourteenth day after the first ordiaaiy general meeting in the year {p), is a member of the company, (A) 43 Vict. 0. 19, s. 3. (J) 25 & 26 Vict. c. 89, s. 18. In (j) 25&26Viot. 0. 89, ». 12; 30 & 31 re Barned's Banking Company, L. E. Vict. 0. 131, s. 9 ; 40 & 41 Viot. c. 26 ; 2 Ch. 674 ; Oakes v. Turquand, L. E. 43 Viot. c. 19. 2 H. L. 325 ; Nassau Co., 2 Ch. D. (k) 25 & 26 Viot. u. 89, s. 18. Com- 610 ; Glover v. Giles, 18 Ch. D. 173. panies for promoting art^ science, re- (m) 25 & 26 Viot. c. 89, ss. 39, 40. ligion, or charity, or any other object {n) Ibid. b. 32. not involving the acquisition of gain, (o) Ibid. s. 25. cannot hold more than two acres of {p) Ibid. s. 26. The general meeting land without the license of the Board of every company under the Act must of Trade. Ibid. o. 21 . be held once at the least in every year. 25 & 26 Vict. 0. 89, s. 49. JOINT STOCK COMPANIES. 69 and the number of his shares. The list must also specify the Joint Stock capital, the shares into which it is divided, the nimiher of shares ho™ framed" taken, the amoxmt of calls made, the amount received and ^'^''^8^*^' unpaid on each share, the shares forfeited, the names, addresses, and occupations of persons who have ceased to be members since the last list was made, and the number of shares each of them held (2'). Within seven days after such fourteenth day in each year (r) this entire list is to be entered on the register, and a copy of it forthwith forwarded to the registrar (s), under a penalty of 51. per diem (t). If the capital of any company be consolidated and divided into shares of larger amount than its existing shares, or any portion of its capital be converted into stock, notice must be given to the registrar, whereupon, in the latter case, the provisions of the Act relating to shares cease as to the capital so converted; but the register and list of members must show the amount of stock held by each member (m). Notice of any increase of capital or stock beyond the registered capital, where the capital is divided into shares, or of any increase in the number of members beyond the regis- tered number, where the capital is not so divided, must be given, within fifteen days, to the registrar, who records the change (x). A power is given by the Companies Act, 1867, to the company by special resolution to reduce the capital, upon an application to the Chancery Division, which credi- tors, who are to have notice of it, may oppose (y). Further powers to reduce capital are given by the Companies Act, 1877 (40 & 41 Vict. c. 26), and the Companies Act, 1880 (43 Vict. (?) 26 & 26 Vict. 0. 89, s. 26. {() 25 & 26 Vict. e. 89, 8. 27. Gil>- {r) Gibson v. Barton, L. R. 10 Q. B. son v. Barton, ubi sup. ; Coventry and 329. (Tear from 1st January to Slat Dixon's case, 14 Ch. D. 660. December.) («) 26 & 26 Vict. c. 89, ss. 28, 29. (s) 26 & 26 Vict. 0. 89, s. 26. But {x) Ibid. s. 34. by 30 & 31 Vict. c. 131, ss. 27 to («/) 30 & 31 Vict. e. 131, ss. 9 to 33, share warrants may be issued to 20. Hope v. International Financial bearer, who may be deemed a member, Society, 4 Ch. D. 327; Mbw Vale Co.^s for shares fully paid up or stock, and case, 4 Ch. D. 827 ; Eirkstall Brewery then the names of the members for Co., 5 Ch. D. 535 ; In re Bronfield Silk- whose shares, &c., they are granted stone Coal Co., 17 Ch. D. 76; Taylor are struck out, and the issue and dates v. Pilsen Co., 27 Ch. D. 268 ; Re Patent of the warrants, and a statement of Invert Sugar Co., 31 Ch. D. 166; Ban- the numbers, &c. of the shares or stock natyne v. Direct Spanish Telegraph Co., are to be entered in the register and 34 Oh. D. 287. annual summary. 70 MERCANTILE TERSOXS. Joint Stock c. 19). Oompanies are enabled to cancel lost capital, to pay off how?o™er capital in excess of their wants, to cancel shares never issued, and regulated. a,nd to retum to shareholders aecunmlated capital in reduction of paid-up capital. The Companies Act, 1880 (43 Vict. c. 19) permits the return to shareholders of accumulated capital in reduction of paid-up capital. AH attempts to reduce the capital of a company hy the purchase of its own shares, apparently even though the memorandum professed to authorize such pur- chase, or hy other means than those provided in the ahove Acts, are invalid [y). A limited company must not only have the word " limited " the last in its name, but also have that name legibly painted or affixed in a conspicuous position outside every office or place where its business is carried on, under a penalty for each day's omission. The name, too, must be engraved on its seal, and mentioned in all notices, advertisements, official publica- tions, bills, notes, indorsements, cheques, orders for money or goods, biHs of parcels, invoices, receipts, and letters of credit, under a penalty of 50^. on the officer who uses any other seal as that of the company, or issues or signs any such notice, &c. on its behalf, wherein the name is not mentioned. Moreover, the officer, if it be not paid, will be personally responsible for the amount of any such bill, &c. {%). A register must, under heavy penalties, be kept of aU mortgages and ■ specific charges on its property, containing a short description of the property, the amount of the charge, and the name of the person entitled to it (a). Such an omission wiU. not, in the absence of fraud or concealment, invalidate the debentures, even though ia the hands of an officer whose duty it was to register (J). The register is to be open at all reasonable times to the inspection of any member or creditors of the company (c) ; and if such inspection be refused, a (y) Trevor v. Whitworth, 12 App. [a) 25 & 26 Vict. c. 89, s! 43. Cas. 409 ; In re the Mersey Cmstruction (i) Wright v. Morton, L. R. 12 App. Co., Times, July 22, 1889 ; Me Union Cas. 371, overruling In re Native Iron Flate Glass Co. (attempted reduction of Co., 2 Ch. D. 345. part of capital), 61 L. T. N. S. 327. [c) In re Credit Co., 11 Ch. D. 256 (s) 25 & 26 Vict. c. 89, as. 41, 42; (refusal to allow the shareholder's soU- Fenrose v. Martyn, E. B. & E. 499 ; citor to inspect) ; Mutter v. Eastern and infra, p. 89. Midlands Ity. Co., 38 Ch. D. 92 (right JOINT STOCK COiMPANIES. 71 judge is empowered to order it immediately. Every limited Joint Stock banking and every insurance company, and deposit, provident how^ormed" or benefit society, before it commences business, and also on ^n^^'eg^lated. the first Monday in February and August in every year, is required to put up in a conspicuous place, in tbe registered and each branch office or place where its business is carried on, a statement {d) of its liabilities and assets, and, if the capital be divided into shares, the amount of capital and shares, the number of shares issued, the amount per share of caUs made, and the sum received. Every member and creditor is entitled to a copy (e) of this on payment of a sum not exceeding sixpence. Each company, not having a capital divided into shares, must, under penalties, keep at its office a register of the names, addresses, and occupations of its directors or managers, and send a copy of the notice of any change in these officials to the registrar (/). No dividend is payable except out of the profits of the business of the company {^), and no dividend shall bear interest {g). It is often provided that the transfer of shares or stock shall not pass the right to any dividend declared before the registration of the stock {h). Section III. — Rights and Liahilities of Members among themselves. Persons are generally induced to become members of new Bights and joint stock companies through the medium of prospectuses, membera ° issued by the promoters. Though some allowances may be f^""^, made for sanguine expectations, " yet no misstatement or con- cealment of any material facts or circumstances ought to be furnished." "It cannot be too frequently or too strongly impressed," observed Lord Chelmsford, " upon those who, having projected any undertaking, are desirous of obtaining the co- operation of persons who have no other information on the to take copies). As to joint-stock {ff) LeeY.NeuchatclCo.,ilGh.'Q.\. banks, see 30 Vict. c. 29, s. 2. (17) Table A. article 73 ; FliterofCs (rf) For foiTu of statement, seePorm case, 21 Ch. D. 519. D, Schedule I. (/») Eastern By. Co. t. Stjtnmch, 5 Bi. (e) 25 & 26 Vict. c. 89, s. 44. 237. As to apportionment, see Bhck if) 26 & 26 Vict. c. 89, ss. 45, 4C. v. Homcrsham, 4 Ex. D. 24. ri MERCANTILE PERSONS. Joint Stock Companies — rights and liabilities of members among themselves. subject than that which they choose to conYey, that the utmost candour and honesty ought to characterise their published state- ments" («■). In furtherance of this principle the Companies Act, 1867 (30 & 31 Vict. c. 131), s. 38, enacts as follows : (a) "Every prospectus of a company, and every notice inviting persons to subscribe for shares in any joint stoct company, shall specify the dates and the names of the parties to any contract entered into by the company, or the promoters, directors, or trustees thereof, before the issue of such prospectus or notice, whether subject to adoption by the directors or the company, or otherwise ; and any prospectus or notice not specifying the same shall be deemed fraudulent on the part of the promoters, directors, and officers of the company knowingly issuing the same, as regards any person taking shares in the company on the faith of such prospectus, unless he shall have had notice of such contract " {K). Two questions have arisen on this section, which extends the liability of agents to cases where the relationship of principal and agent does not exist. The first is, what classes of contracts are included ? The literal construction of the section would require the specifying of every contract made by any of the per- sons named at any time before the issue of the prospectus or notice. There has been much difference of opinion as to the limitations with which the section must be taken. On the one hand, it has been laid down that the section included only con- tracts by which the companies incur obligations. On the other hand, the section has been held to extend to " every contract made before the issue of the prospectus, the knowledge of which might have an effect upon a reasonable subscriber for shares in determining bim to give or withhold faith in the promoter, director, or trustee issuing the prospectus, whether such contract was made by such promoter, director, or trustee before or after he became a promoter, director, or trustee, and whether or not such contract was made on behalf of or so (i) Per Lord Chelmsford, in Central Bailuiay Company of Venezuela v. Kisch, L. E. 2 H. L. 99, at p. 113 ; New Brumswick C. R. Co. v. Miiggeridge, 1 Dr. & Sm. 381 ; Smith y. Chadwiek, 9 App. Cas. 187 ; Amison v. Smith, 41 Ch. D. 348. {k) Often a "waiver clause," by which applicants agree to waive the benefit of this section, is inserted in the prospectus ; but it is doubtful whether such a clause has any effect. Palmer's Company Precedents, 4th ed. 58 ; Lindley on Company Law, 6th ed. 92. JOINT STOCK COMPANIES. 73 as, if adopted, to impose a liability on the company" (l), and, it Joint Stock may be added, whether in writing or not. The latter seems to r^ua^^ be the true view. Who are promoters is in each ease a ques- ^^"^^^ °* tion of fact. The term is " a short and convenient way of de- among themselves, signating those who set in motion the machinery by which the Act enables them to create an incorporated company" (m). A promoter may be agent for the vendor of property to a com- pany ; the material question is, whether the purchase and the formation of the company are part of one project, or whether they are independent transactions ? («) . There may be a promoter within the meaning of the section, notwithstanding the exist- ence of an independent board of directors (o). The remedy under the section is only against the director and promoter, and not against the company. It does not enable a shareholder to repudiate his shares or the company to sue the promoter (p). As the prospectus forms the basis on which the original shareholders usually agree to take shares, any one of them who has been misled by a misrepresentation, misstatement or conceal- ment of a material fact (g), may, if he use diligence, so soon as he ascertains the real facts, be relieved from his engagement (r). {1} Per Brett, J., in Gover's case, 1 at p. 1268. See also remarks of 5ot<;e», Ch. D. 182, at p. 200 ; Twj/eroaa v. J., in Whaley Bridge Cfo. v. Grem, 6 Grant, 2 C. P. D. 469 ; Bagnall v. Q. B. D. 109 ; and Zindley, L. J., in Charlton, 6 Oh. D. 371 ; Arkwright y. Lydney and Wigpool Iron Ore Co. v. NewioU, 17 Ch. D. 301; Craig \. ^irrf, 33 Ch. D. at p. 93. Phillipa, 3 Ch. D. 722 ; Cornell-^. May, («) Lydney and Wigpool Iron Co. v. L. R. 8 C. P. 328. " The balance of Bird, 31 Ch. D. 328 ; In re British authority is in favoiir of a construe- Seamless Box Co., 17 Ch. D. 467. tion which would render it necessary to [o) Erlanger v. New Sombrero Co., specify every contract by a promoter, supra ; Emma Silver Mining Co. v. Lewis, director, or trustee, which might rea- 4 C. P. D. 396. Bonably be expected to influence per- (p) Sullivan v. Mitcalfe, 5 C. P. D. sons reading the prospectus in mak- 455 ; Gover's case, 1 Ch. D. 182 ; Er- ing up their minds whether or not longer v. New Sombrero Co., supra, they will apply for shares ; and fur- [q) See Beattie v. Lord Ebury, L. R. ther, that contracts must be specified 7 Ch. 777 ; Peek v. Derry, 37 Ch. D. whether made before or after the per- 541 ; Smiths. Chadwick, 9 App. Cas. 187. son becomes a promoter, director, or [r) Central Ry. Co. of Veneztiela v. trustee, and whether they relate, Kisch, L. R. 2 H. L. 99 ; Seese Siver directly or indirectly, to the officers Silver Mining Co. v. Smith, L. R. 4 of the company." Palmer's Company H. L. 64 ; Arkwright t. Newbold, Precedents, 4th ed. 56 ; Lindley on 17 Ch. D. 301 ; Western Bank of Scot- Company Law, 6th ed. 92. land v. Addie, L. R. 1 H. L. So. 145 ; (in) Per Lord Blackburn, in Erlanger Oakes v. Furguand, L. R. 2 H. L. v. New Sombrero Co., 3 App. Cas. 1218, 325 ; see infra, note {t) ; Feek v. Gur- 74 MERCANTILE PERSONS. Joint Stock Companies- rights and liabilities of members among themselves. So when it has been ciroulated by the company, any person who has been thus induced to take shares inay, upon promptly repudiating them, defend any action against him by the com- pany, providing the winding up has not began (r). Sometimes, - too, he may obtain the restoration of any sums he may have paid (s) ; and, at all events, recover any loss he may sustain as damages against the promoters, directors, or persons who have imposed upon him (^). A person induced by the fraud of the agents of a joiut stock company to become a member can bring no action for damages against the company whilst he remains a member, his only remedy is restitutio in integrum and rescission of the contract ; if this becomes impossible, as by the winding up of the company or otherwise, his action for damages cannot be maintained against the company or liquidators (m). The authorities show that — (1) when an order is made for winding up a company, the shares cannot be repudiated (x) ; (2) that when a company cease in fact to carry on business, it is too late to rescind a contract to take shares, though brought about by fraud {y) ; (3) that when there is no remedy by rescission of the contract, a shareholder cannot recover calls paid (z) ; (4) that a shareholder induced by fraud to take shares cannot prove for damages in the winding up in competition with other creditors or shareholders, or against the company (a). Persons applying for shares may withdraw at any time before their application has been accepted (S), before the shares have ney, L. E. 6 H. L. 377 ; L. E. 13 Eq. 79 ; Cha4u>ieh v. Smith, 9 App. Cas. 187 ; Arnison v. Smith, 41 Ch. D. 348. As to delay in repudiating shares, Sharpley v. Louth § B. Coast By. Co., 2 Ch. D. 663. {r) Lord Chelmsford, in Western Bank of Scotland v. Addie, ubi supra. {«) Wontner t. Shairp, 4 C. B. 404 ; Henderson v. Laeon, L. E. 5 Eq. 249. But see Clarke v. BicJeson, 6 C. B. N. S. 453, and Western Bank of Scotland v. Addie, ubi supra. (if) Smith T. Chadwick, 20 Ch. D. 27 ; Arjcwright v. Newhold, 17 Ch. D. 301 ; Gerhard t. Bates, 2 E. & B. 476 ; Arnison v. Smith, supra. As to measure of damages, Twycross v. Grant, 2 C. P. D. 469; Gerhard v. Bates, 2E, &B. 476. («) Souldsworth V. City of Glasgow Bank, 5 App. Cas. 317 ; In re Scottish Petroleum Co., 23 Ch.D. 413. (») Addie v. Western Bank of Scot- land, L. E. 1 H. L. So. 145; TTr- quhart v. Macpherson, 3 App. Cas. 831. {y) Mitchell v. City of Glasgov; Bank, 4 App. Cas. 624. (a) Souldsworth v. City of Glasgow Bank, 5 App. Cas. 317. («) In re Addlestone Linoleum Co., 37 Ch. D. 191. (A) Wackets v. Crosiy, 3 B. & C. 814 ; Walstab v. Spottiswoode, 16 M. & W. 501 ; Mowath v. Londesioraugh, 4 E. & B. 1. The principle above statecl JOINT STOCK COMrANIES. I been allotted, or the allotment sent to the applicant (c), if the Joint stock application be not accepted in its terms (d), or if it be subject righfeT^^ to a term or condition which is not fulfilled (e). ' meS™ "* The purpose of a prospectus being to invite persons to become among them- original shareholders, its office is completed on allotment ; and a pui'chaser of shares has no right of action in respect of any con- cealment or misrepresentation in the prospectus (/). Should the memorandum of association materially differ from the prospectus, a person who has agreed to subscribe on the footing of it may at once repudiate the shares () See in what oases this can be (z) 25 & 26 Vict. c. 89, s. 23. dispensed with, post, p. 93. (a) Fellait's case, L. K. 2 Ch. 527 ; (<) 25 & 26 Vict. u. 89, ss. 18, 41, Gmn'scme,li.'R.SCh..iO; Sahlgrem's 55. Companies who carry on business case, L. E. 3 Ch. 323 ; JJicAarf?* v. Bb)M« abroad or in the colonies may have Assurance Asaociation,'L.'R. 60.7. bn. special seals for each place, see 27 & (i) Household Fire Insurance Co. v. 28 Vict. c. 19. Grant, 4 Ex. D. 216 {framwell, L. J., (m) 26 & 26 Vict. c. 89, s. 23. Sail's dissenting). case, L. E. 5 Ch. 707 ; Sidney's case, (c) Chains' case, L. E. 6 Ch. 266 ; L. E. 13 Eq. 228 ; Oilman's case, 31 Sogers' case, L. E. 3 Ch. 633 ; Dou- Ch. D. 420 ; JSx parte Audain, 42 gan's case, L. E. 8 Ch. 540. Ch. D. 1. (<^) Oakes v. Turquand, L. E. 2 [x) 26 & 26 Vict. u. 89, s. 37. H. L. 326 ; and see Ramsgate Hotel (y) Not merely to take scrip. Co. v. Montefiore, L. E. 1 Ex. 109 ; MeHwraith v. Dublin Trunk Co., L. R. Baily's case, L. E. 5 Eq. 428 ; Smith 7 Ch. 134. v. Chadwick, 9 App. Cas. 187. 78 MERCAKTILE PERSONS. Joint Stock Companies — rights and liabilities of members among them- selves. wound up, or the directors issue notices calling a meeting to pass resolutions for -winding-up, and his name heing on the register, he will he a contrihutory (e). In the interval, however, before any application to wind up, he may, as a rule, with- draw (/). So if the articles of association materially vary from the prospectus upon which he agreed to take shares, he may disclaim, unless he be guilty of laches (g). There can be no agreerfi.ent within the meaning of sect. 47 unless the allottee is capable of contracting. One who, while an infant, has accepted shares may repudiate them, if he does upon coming of age nothing inconsistent with repudiation (A). Where the holding of certain shares is a necessary qualification of the office of director, any one who acts as such will, not necessarily, be held to have agreed to take such shares (»). The shareholder's rights, after he is so registered, are only partially defined bj the statute itself; his powers and privi- leges are more explicitly stated in the articles of association. As these, however, differ in the case of each company, and may be altered by subsequent special resolutions, it would he useless to detail them. The articles may explain or supple- nient, but cannot control the general provisions of the statute and the conditions contained in the memorandum of association which prescribe them (/r). Subject to any reasonable restriction that may be imposed, each shareholder is entitled to inspect the register of members, and have a copy of any part of it {I) ; i£ the company be limited, to inspect the register of mortgages (m) ; i£ the company be a limited banking or insurance company, to (e) Oakes v. Turquand, L. E. 2 H. L. 325 ; Mair v. Glasgow Sank, 4 App. Cas. 337 ; Tenneni v. Glasgow Sank, 4 App. Cas. 615. {/) mWs ease, L. E. 4 Eq. 9; Central By., Go. of TenemeU v. Kisch, L. E. 2 H. L. 99 ; Reese River Sihier Mining Co. v. Smith, L. E. 4 H. L. 64 ; Tennent v. City of Glasgow Bank, ubi sup.; In re Scottish Petroleum Co., 23 Ch. D. 413. (g) See Stewart's case, L. E. 1 Ch. 674 ; and see Sallows v. Fumie, L. E. 3 Ch. 467; Edgington v. Fitzmaurice, 29 Ch. D. 459. (A) Cork % Bandon Ry. Co. v. Caze- mre, 10 Q, B. 935 ; Leeds,^. Ry. Co. 4 Ex. 26; North Western Ry.Co. V. McMichael, 5 Ex;. 114. (j) See De Ruvigne's case, 5 Ch. D. 306 ; Brett's case, 25 Ch. D. 283 ; Me Wheal Buller Consols, 38 Ch. D. 42. As to what is holding shares " in his own right," Bainiridge v. Smith, 41 Ch.D. 462. (A) Ashbwy Carriage Co. v. Riehe, L. E. 7 H. L. 653 ; Guinness v. land Corp. of Ireland, 22 Ch. D. 349 ; London Financial Association v. Kelk, 26 Ch. D. 107 ; Ashbury v. Watson, 30 Ch. D. 376 ; Ih re South Durham Brewery Co., 31 Ch.D. 261. (/) 25 & 26 Vict. 0. 89, 9. 32. (m) Ibid. s. 43. ..... JOINT STOCK COMPANIES. 79 have a copy of the half-yearly statement (w), and every member Joint Stock may require to be supplied with a copy of the memorandum and righS^SiT" articles of association (o) . member? °* Notice must be given to him of the general meetings of the among them- company, and of special resolutions which it is intended to pro- pose at them {p). Upon his application he is to be furnished with a copy of such resolution {q), and he is entitled to be present and vote at these meetings, so that he may have a voice in, and exercise control over the proceedings of the company. In order to enable the members effectually to ascertain the state of its aifairs, upon the application of persons holding not less than one-fifth, or, if a banking company, one-third of the shares, or of one-fifth of the members, if the capital is not divided into shares, the Bop,rd of Trade may appoint inspectors to examine the books and documents of the company, and its officers and agents on oath, and report their opinion to that Board. A copy of this report is to be sent to the company, and, if they desire it, to the shareholders requiring the investigation, who are to defray the expenses, unless the Board of Trade directs them to be paid by the company (r). The company also may by special resolution appoint inspectors with like powers to report to such persons as it may direct (s). Copies of these reports, under the company's seal, are admissible in any legal proceedings to show the opinion of the inspectors {t). The members have like- wise power, at a general meeting, to resolve that the company shall be wound up, by petition to the Court (m), or volun- tarily (ar). Minutes of the meetings of the company and of the directors or managers {y) of a company are to be entered in books, and these, purporting to be signed by the chairman of the meeting, are receivable in evidence (s), and the mutilation or falsification of its books, papers, &o., by any director, officer, or contribu- tory of a company is a misdemeanour {a). When a company is («) 26 & 26 Vict. 0. 89, s. 44. («) 25 & 26 Vict. o. 89, 8. 79, post, (o) Ibid. s. 19. p. 98. (p) Ibid. 88. 51, 62. {x) Ibid. 8. 129, po8t, sect. 6. [q) Ibid. 8. 64. i^) Gibson v. Barton, L. R. 10 Q. B. (>•) Ibid. 88. 66, 67, 58, 59. 329. (*) Ibid. s. 60. {z) 25 & 26 Vict. o. 89, s. 67. [{) Ibid. s. 61. {a) Ibid. s. 166. 80 MERCANTILE PERSONS. Joint Stock Companies — rights and liabilities of members among them- being wound up, all its books are primd facte evidence between the company and the contributories (5). As the management of a joint stock company is confided to the directors and their agents, and the bulk of the shareholders must necessarily continue passive, the Courts of equity are very strict in enforcing the due execution of the trust reposed in those functionaries (c). Though not trustees in all respects (d), they are liable to refund money misappropriated from the pur- poses of the company (e) ; and they may be restrained from using their power improperly (/). But directors will not be visited with the consequences of a mere error of judgment, when they have acted bond fide, and intended to do what was right and best for the company {g). The chief, or one of the chief, questions which commonly occurs between the company and its individual members relates to the payment of money due from them in respect of their shares. The powers of the directors to make calls must be strictly followed {h). To use the expression of Lord Benman, in Meigh v. Clinton («), it " is a specific power,' and must be strictly pursued." Accordingly calls— and the same is true of for- feitures — of shares can be validly made only by directors who have been properly appointed, and by the number, if any, of directors required under the articles of association for the trans- action of business (A). The liability of the shareholders or mh- scrihers depends, of course, mainly upon the deed (/) of settle- ment or articles of association. (J) 25 & 26 Vict. e. 89, s. 164. (c) See Overend S; Owmey Co. v. Qibb, Xi. E. 5 H. L. 480 ; The Liquidators of the Imperial M. C. Ass. v. Coleman, L. E. 6H. L. 189. (d) Forest of Bean Mining Co., 10 Ch. D. 450; Smith y. Anderson, 15 Ch. D. 247 ; In re Faure Eleoiric Accumulator Co., 40 Ch. D. at p. 151. (e) Samskill v. Edwards, '31 Ch. D. 100; Parker Y. Lewis, L. R. 8 Ch. 1035. (/) Camnon v. Trash, L. E. 20 Eq. 669. [g) As to the criminal liability of directors, 24 & 25 Vict. c. 96, s. 84. Mint's case, 37 L. J. Oh. 278 ; Forest of Dean Mining Co., 10 Ch. D. 450. [h) Moore t. Saminond, 6 B. & C. 466. Trifling irregularities -will not invalidate a call. (i) 11 A. &E. at p. 428. [le) GardenGully United QtiarteMining Co. T. MeLister, 1 App. Cas. 39; Johnson v. LytiWs Iron Agency, 5 Ch. D. 687 ; In re Alma Spinning Co., 16 Ch. D. 681 ; Sharp v. Dawes, 2 Q. B. D. 26 ; In re London and Southern Counties Land Co., 31 Ch. D. 223. See York Tramways Co. v. Willows, 8 Q. B. D. 686 ; In re Caifiley, 42 Ch. D. 209. {I) See Norwich and Lowestoft Nam- gation y. Theobald, Moo. & Mali. 151. JOINT STOCK COMPANIES. 81 The Companies Act, 1862 (w), on the subject of calls, pro- Joint stock vides that the memorandum and articles of association, when righte^and " registered, bind the company and shareholders to the same ^^^ers °* extent as if each shareholder had signed and sealed them, and among them- Belyes. all moneys payable by members in pursuance of the regulations of the company are in the nature of specialty debts (w). And in an action for the recovery of calls, or other money due from a member, it is not necessary to set forth the special matter : it suffices to allege that he is a member, and indebted in respect of a call or other moneys due, whereby an action or suit has accrued (o). To such an action a plea that the defendant was induced to hold the shares by the fraud of the company, who are the plaintiffs, is a good answer if the defendant has repu- diated the shares in time {p). Where there was no express prohibition, it was held that the calls might be made payable by instalments, or to take effect in futuro (q). The liability to calls as made by the directors is confined to the amount of each share, if any precise limit be prescribed by the deed or articles, though the company be not regis- tered as limited ; but in that case the shareholder may become liable under a winding up to an unlimited contribution, equally with his fellow members, until the debts of the company be liquidated. Generally the directors are empowered by the articles of association, if calls be unpaid, to declare (>•) the shares of de- faulters forfeited (s). This power is treated strictisdmi juris, (m) 25 & 26 Vict. c. 89, b. 16. See Woodwork Co. t. Brown, 2 H. & C. 63. Table A., rr. 4 to 7; for regulations as {^) The Bwleh T. P. L. M. Co. t. to making and giving notices of calls, Baynes, L. B. 2 Ex. 324. rr. 95 to 97. (?) The Ambergate N. B. and E. J. (») Ibid. s. 16. S. Co. V. CouUhard, 5 Exoh. 469 ; (o) Ibid. 8. 70. The register is, too, London ^ JT. W. Bail. Co. v. M'Michael, primS facie evidence of membership : 6 Exoh. 273. s. 37 ; Bortaly. Emmena, 1 C. P. D. 201, (r) WooHaston' s case, 4 De Gr. & J. 664 ; and a minute of the resolution 437 ; Webster's case, 32 L. J. Ch. 135 ; signed, as required by s. 67, is proof Bigg's case, L. R. 1 Eq. 309 ; and see of the making of the call. The fact Moore v. SawUm, 6 C. B. N. S. 310. that the whole of the shares have not (») See 25 & 26 Vict. o. 89, Table been subscribed for, and that the A., rr. 17 to 22 ; and Sarris v. North company cannot be carried out, Devon M. Co., 2Beav. 3Si. affords no defence : Ornamental S. — VOL. I. Or 82 MEllCANTILE riiUSONS. Joint Stock and must be closely followed U). In one case a forfeiture for righte^d" non-payment of costs was vitiated by the .fact that the caU UabUities of reauired payment of interest from the date of the call instead among them- of the day appointed for payment, as specified by clause 17, ^^^ Table A, of the Act (m). The Court will not allow this power to be exercised merely in order to enable a shareholder to escape liability (»). Where a shareholder has stood by so long that bis conduct is in effect an intimation that he acquiesces in the for- feiture and abandons his interest, he 'will be unable to avail himself of informalities in the forfeiture ; but if he has a legal, executed interest, mere laches wiU. not disentitle him to rehef {w). The usual provision is that a certain number of days' notice shall be given to pay («), and that if the call be not paid, the, shares win be forfeited. The circumstances of such a notice having been given afford a defence in an action for the calls (y). Unless the contrary is clearly provided, the company may not, after the exercise of its right of forfeiture, sue for calls (s). The shares in these companies, unlike an ordinary partnership, are generally transferable without the consent of the rest of the body (a), and the only obligation is to find a legally competent transferee (i). The Companies Act, 1862, provides (c) that com- panies registered under the prior Joint Stock Companies Acts (4) may cause their shares to be transferred in the manner previously in use, or such other manner as they may direct ; and that the shares or interest of a member (e) of any company formed under [t) Clm-heY. Sart, 6 H. L. Cas. 633, 3 Oh. 412, at p. 415 ; Giles v. Sntt, at p. 660 ; Johnson v. Lyttle's Iron 3 Ex. 18 ; Great Northern Ry. Co. t. Agency, 5 Ch. D. 687; Garden Gully Kennedy, 4 Ex. 417. Co. V. McLister, 1 App. Cas. 39. {a) Ex parte Greenwood, 4 De O. & (ft) Johnson v. LyttWs Iron Agency, J. 544 ; De Paix's case, ib. ; JEr parte Tibi supra. Sudd, 31 L. J. Ch. 4. Contracts for (ff) In re Esparto Trading Co., 12 the sale of such shares generally, Ch. D. 191. without specifying any particular (w) Compare Prendergast v. Twrton, shares, are valid, except of shares in 1-T. & C. Ch. 98 ; 13 L. J. Ch. 268, banMng companies ; as to which, see with Sule V. Jewell, 18 Ch. D. 660. 30 & 31 Vict. c. 29, in Appendix. [x) See Van Diemen's Land Company (i) Lumsden's case, L. R. 4 Ch. V. Coekerell, 10. B. N. S. 732, and 31. the cases in note (?), ante, p. 81. (c) 25 & 26 Vict. c. 89, a. 178. {y) Knight's case, L. R. 2 Ch. 321 ; (d) See s. 176. £igg's case, 1 Eq. 309. (e) 25 & 26 Vict. o. 89, 8. 22. See («) In re Plakeley Ordnance Co., L. R. also s. 26. JOINT STOCK COMPANIES. 83 that Act of 1862 may be transferred in manner provided by its Joint Stock regulations ; also, tbat the interest of a member may, on his rfg^te^^d" decease, be transferred by his personal representative, as if he ^g^^erT °* were a member (/). In the Table A. (g) there are regulations among them- iti**-in* selves. on this subject, which are usually adopted m articles of associa- tion : they prescribe a form of transfer, and provide that the company may refuse to register the transfer of his shares made by a member indebted to the company (A). Ordinarily, there- fore, a member has an absolute right to transfer his shares to whomsoever he pleases, even a pauper, provided the sale be out and out and there be no trust («), and the directors have no dis- cretion in the matter. Often express power is given them to reject a proposed transferee (k), but this they ought not to exercise without good reason, and the Court wiU interfere if they act from improper motives, or arbitrarily or capriciously (/) . The right to transfer comes to an end when a company has become insolvent, and stopped payment, though the winding up has not begun {m). Until the name of the transferee is placed on the register, he does not become a member (n) ; he cannot recover any profits, or act as a member; and the vendor continues liable as such. In order to settle disputes as to the liability or right to be registered, and to prevent improper refusals or delay in this respect, section 35 of the Companies Act, 1862, provides that if the name of any person without sufficient cause be entered, or omitted to be entered, or (/) 25 & 26 Viot. 0. 89, s. 24. # Steel Co., L. R. 16 Eq. 559. See ■ (ff) Eulea 8 to 16. For paid up King's case, L. E,. 6 Ch. 196. shares, warrants to bearer, transferable (A) Evans v. Wood, L. E. 5 Eq. H ; by delivery, may be issued: 30 & 31 MiteheU'a ease, i App. Cas. 567. Vict. 0. 131, 88. 27 and 28. These the (/) See Ex parte Fenney, L. R. 8 Ch. bearer may surrender, and require his 446. Specific performance -wiU not be name to be entered on the register : decreed where the directors of the corn- sect. 29. pany have a power to refuse their (A) See Ex parte Muiolph,, 32 L. J. assent to the transfer, and the Court Q. B. 369 ; Ex parte Stringer, 9 cannot compel them to assent: Eer- Q. B. D. 436 ; In re Eentham Spinning mingham v. Sheridan, 33 Beav. 660 ; Milb, 11 Ch. D. 900 ; In re Cowley, 42 Foole v. Middleton, 29 Beav. 646. Ch. B. 207. (ot) Tennent v. City of Glasgow Sank, (») Battie's case, 39 L. J. Ch. 391 ; 4 App. Cas. p. 615. Weston's case, L. R. 4 Ch. 20 ; Etidd's («) 25 & 26 Viot. o. 89, ss. 23, 25 ; case, 30 Beav. 143 ; Dr. Parr's case, but see supra, p. 69, note (») ; 30 & 2 De G. & J. 638 ; In re Stranton Iron 31 Viot. e. 131, s. 30. g2 84 MERCANTILE PERSONS. Joint Stock Companies — rights and liabilities of members among them- selves. if default "be made, or mmecessary delay (o) take place in re- moving any person's name from, or entering any person's name on (p), the register, he or any member may apply to the Court, or to a Judge at Chamhers, who may (q) order it to be recti- fied (»•). In this proceeding the Court may decide any question of title (s) necessary to be decided for such rectification {(), or may direct an issue to settle it (m). There is, moreover, a regu- lation that the Court may make the company refusing to register pay all the costs of the application and any damages the party aggrieved may have sustained by the default or unnecessary delay in registering. A shareholder who has agreed to sell his shares, and executed a transfer to the purchaser, may sue him for a specific performance, and require him to be registered (a), unless in the interval an order has been made for winding up the company or it is insolvent, in which event the vendor must look to the purchaser for an indemnity (y). GreneraUy speaking, shares in a joint stock company, even though it be seised of land, are not goods, wareSj &c., included within the 17th section of the Statute of Frauds (s), nor are they within the Statutes of Mortmain (a) . They are "things in action " within the meaning of the reputed ownership section in the Bankruptcy Act, (o) Shepherd's case, L. R. 2 Ch. 16 ; Marino's case, ib. 596. (p) In re Stranton Iron ^ Steel Co.j 16 Eq. 539. (?) Whether this be discretionary, see JEx parte Far/cer, L. E. 2 Ch. 685 ; Ward's ease, L. R. 2 Ch. 431. (r) See Hx parte Rudolph, 32 L. J. Q. B. 369 ; Ex parte Kintrea, L. R. 5 Ch. 95. . (s) As to the diflereut views of the jurisdiction under the section, see Ex parte Shaw, 2 Q. B. D. 463 ; Ward's case, L. R. 2 Ch. 431 ; Mus- grave's ease, L. R. 5 Eq. 193 ; Ex parte Sargent, L. R. 17 Eq. 273. [t) Stewart's case, L. R. 1 Ch. 574. The Court may order an action to be brought : Ex parte Farker, L. R. 2 Ch. 685. . (») 25 & 26 Vict. c. 89, s. 35 ; see Ex parte Faris, 26 L. J. Ch. 369. (x) Mmgrave's case, L. R, 5 Eq. 193; Fame v. Sutehinson, L. R. 3 Ch. 388. (j/) Emmerson's ease, L. R. 1 Ch. 433 ; Mitchell's case, 4 App. Cas. 567 ; Mitchell V. eity of Glasgow Bank, ib: 624. But by 25 & 26 Vict. c. 89, s. 98, the Court may rectify the register in order to settle the list of contribu- tories: see Mmgrave's case, L. R. 6 Eq. 193 ; Head's case, L. R. 3 Eq. 84; Marino's case, L. R. 2 Ch. 596 ; and Ward's case, L. R. 2 Eq. 226 ; and post, sect. 5. (a) £owlbg v. Sell, 3 C. B. 18; Fowell V. Jessop, 18 C. B. 336 ; Walker V. Bartlett, 18 C. B. 845. Nor within the exception of goods, wares, and merchandise in the Stamp Act, tit. "Agreement" : Knight v. Sarber, 16 M. & "W. 66. («) Edwards v. Sail, 6 De G. M. & Q-. 74. As to debentures and bonds, see In re Mitchell's Estate, 6 Ch. D. 655 ; In re David, 41 Ch. D. 168. JOINT STOCK COMPANIES. 85 1883 (46 & 47 Vict. o. 52), s. 44, sub-s. (iii.) (i). In the absence Joint Stock of any enactment they are personal property (c), and transferable rights and by parol [d). An action, therefore, for not accepting them may membara ° be maintained by the vendor upon a verbal agreement to pur- among them- chase them (e) ; and a promise will be implied on the part of the vendee to indemnify him, against calls (/). By 30 & 31 Vict. c. 29, s. 1 (Leeman's Act), contracts for the sale of bank shares must specify the numbers of the shares (g). It would ap- pear that whether the sale is or is not on the Stock Exchange, the seller of shares is not bound to procure the registration of the transferee; all that he is bound to do is to execute a valid transfer and hand it to the transferee (A). It has been decided that, when shares are, by the provisions of an Act of Parlia- ment, transferable by deed only, the purchaser must tender a conveyance to the seller for execution before he can sue for not transferring them, even though the Act makes the shares personal property (i) ; and that a sealed instrument of transfer, having the name of the vendee in blank at the time when it is sealed and delivered, is invalid as a deed(y). "This is an attempt," said Parke, B., "to make a deed transferable and negotiable like a bill of exchange or exchequer bill, which the law does not permit " {k) . (J) The Colonial Bank v. Whinney, and Humble v. Mitchell, 11 A. & E. 11 App. Cas. 426. 205 ; also Knight v. Barber, 16 M. & (o) Bradley v. Holdsworth, 3 K. & W. 66 ; Walker v. Bartlett, 18 C. B. W. 422; Bligh v. Brerit, 2 T. & C. 846. 268. By the Companies Act, 1862, (e) Tmnpest v. Kilner, 2 C. B. 300 ; s. 22, shares in companies registered Bradley v. Holdsworth, supra, imder it are declared to be personal (/) Kelkck v. Enthoven, L. E. 8 property capable of being transferred Q. B. 468 ; 9 Q. B. 241. in manner provided by the regula- (g) See Seymour v. Bridge, 14 Q. tions of the company. The Com- B. D. 460, and Perry v. Barnett, ib. panics Act, 1867, ss. 27, 28, permits 467; 16 Q. B. D. 388 (C. A.). companies limited by shares under (A) Skinner v. City of Glatgow Bank, the Companies Act, 1862, to issue 14 Q. B. D. p. 887; London Founders' warrants for fully paid-up shares pay- Association v. Clarke, 20 Q. B. D. 576; able to bearer and transferable by "I have no doubt that the seller must delivery. As to the transfer of shares not prevent, or do anything to prevent, by delivery generally, see De Pass's the company from accepting the pur- case, 4 De G. & J. 544 ; and in chaser or his nominee" : Ib. per Lord cases of companies under Companies Esher, M. B., at p. 682. ^Act, 1862, &^^ In re General Company for («) Stephens v. De Medina, 4 Q. B. Promotion of Land Credit, L. R. 6 Ch. 411 ; Bowlby v. Bell, 3 C. B. 284. 363. (i) The Sociiti Ghierale de Paris v. (rf) See judgment of Parke, B., Hib- Walker, 11 App. Cas. 20. bletohite v. M'.Vorint, 6 M. & W. 200 ; (/•) Hibbleichite v. M'MnrUie. fi M. & 86 MEllCANTILE PERSONS. Joint Stock The title of the transferee in such circumstances is only an equit- righte^^d" al^le title {k) ; and he has no right to require the company to UabiUtUs of enter the shares in his name in the register. In the absence of among them- any provision requiring the transfer to be by deed, it may be hf — ^-^- — '■ Writing only, and if the name of the transferee be in blank it may be afterwards filled in, though the instrument be in fact under seal (I). The transferee may, however, under certain cir- cumstances be estopped from taking advantage of a defect iu the transfer, even as against the company {m). A company may issue to shareholders certificates under the common seal of the company for the purpose of enabUng them to deal readily with their shares (w). The company will be estopped from denying the truth of statements iu these docu- ments ; and a person who purchases and pays for shares specified in such a certificate niay recover from the company if it turn out that it has been issued to a person not entitled (o). Bights against and liabilities to third parties. Section IV. — Bights against and Liabilities to Third Parties. The liability of a member in a projected company begins with the commencement of the company. He is not responsible for contracts made before that period by its intended members or directors, while preliminaries, on the accomplishment of which he had agreed to join, are unaccompKshed {p). And though, in the absence of acquiescence (q), no partnership takes place till the "W. 200, at p. 216. See Simile v. Lmgstott, 7 M. & W. 617; DalyY. Thompson, 10 M. & W. 309 ; Swan v. North British Australasian Co., 2 H. &C. 175. (A) Society Gemrale de Paris v. Walker, 11 App. Cas. 20 ; Nanney v. Morgan, 37 Oh. D. 346. (?) Ex parte Sargent, L. E. 17 Eq. 273; Walker v. Bartlett, 18 C. B. 845 ; Daoies' case, 33 L. T. N. S. 834. But see France v. Clarke, 26 Oh. D. 257. {m) Sheffield and Manchester Ey. Co. V. Woodcock, 7 M. & W. 574; He Barned's Banking Co., L. R. 3 Ch. 105 ; Royal Bank of India's case, L. E. 4 Ch. 252. («) Sect. 31. (o) In re Bahia Rij. Co., L. JR. 3 Q. B. 595 ; compare Shropshire Union T. Seg., L. R. 7 H. L. 496. (p) Caledonian ^ Dumbartonshire Junction Ey. v. Helensburgh {Magis- trates), 2 Macq. H. L. Cas. 391 ; Fox V. Clifton, 6 Bing. 776 ; Pitehford v. Davis, 6 M. & W. 2. For cases where the partnership liability was held to have attached, see Harvey v. Kay, 9 Bl & C. 356 ; Ellis v. Sehmmck, 5 Bang. 621 ; Lawler v. Kershaw, M. & M. 93 ; Doubleday v. Muskett, 7 Bing. 110. (q) Per Lord Abinger, in Pitehford V. Davis, 5 M. & W. 2 ; Steigenberger v. Carr, 3 M. & G. 191 ; Tredwen v. Bourne, 6 M. & "W. 461. JOINT STOCK COMPANIES. 87 preliminaries are completed, wten the partnership has once Joint stock begun, every memher is liable in respect of a contract made by rights against the directors or agents in the usual course of business {r). But ^ tMrd ''^ the company will not be bound if the acts of the directors are P^^^^- outside the articles of association and memorandum. " Those who deal with them (companies) must be affected with notice of all that is contained ia those two documents " («). Persons who consent to become directors or members of the provisional com- mittee of a projected company not yet formed, do not thereby authorize the other promoters or members of the managing committee to engage their credit, even for things necessary to establish the company [t). The bare fact of allowing their names to be published to the world as directors or members of such a committee, and accepting shares and paying a deposit upon them (m), will not warrant a verdict against them {v). But these, and any other acts they may have done in relation to the proposed company, raise a question of fact, whether they authorized the pledging of their credit for matters necessary to the formation of the company (w). So permitting their names to be inserted in a prospectus, which represents certain persons as the agents of the committee, e.g., solicitors and secretaries, should be submitted to the jury, and it is for the jury to say whether, by so doing, they did not intend to authorize those agents to do all such things on their behalf as are usually done by them in similar cases. Also if the prospectus states the names of an acting committee, it is a question of fact, whether the meaning of that is, that (»■) Sawlim V. Sotime, 8 M. & W. B. 477; TFood v. The Duke of Argyle, 703. 6 M. & G-. 928; Eutton v. X7pfiU, («) Per Lord Haiherley in Mahony v. 2 H. L. Ca. 674 ; Norria v. Cottle, 2 East Holyford Mining Co., L. E. 7 H. L. Ca. 647. H. L. p. 893 ; Irvine v. Vnion Bank, [v) Nor will it -warrant the insertion 2 App. Qas. 366. of their names in the list of contribu- (i) Buriidge v. Morris, 3 H. & C. tories for calls under a winding up : 664. Bright v. Sutton, via. supra ; Sutton (u) Bright v. Mutton, 3 H. L. Ca. v. Thompson, 3 H. L. Ca. 161. 341; Reynell y. Lewis, 16 M. & "W. (w) Maddick v. Marshall, 16 C. B. 517 ; Bailey v. Mataulay, 16 Q. B. N. S. 387 ; Biley v. Paekington, L. R. o33. See also Cook v. Tonkin, 9 Q. B. 2 C. P. 636 ; Martyn v. Gray, U C. B. 936 ; Lake v. The Duke of Argyle, 6 Q. N. S. 824. 88 MERCANTILE PEKSONS. Joint Stock the acting committee is to take the whole management, to righte^al^t the exclusion of the provisional committee, their provisional and liabilities cJiaracter having ceased, in which case they would not he to tnird *-' , •111 parties. liahle ; or that the provisional committee have appomted the acting committee, or the majority of it, on their behalf and as their agents, in which event they would he liahle upon contracts made by them as suoh agents. It is, however, quite clear that they cannot be charged for goods supplied, or debts incurred previously to their consenting to act («) ; although the regulations of the company usually empower the directors to pay the expenses of getting up and registering the company {y), a provision which does not give promoters or third parties a right of action against the company. A company cannot ratify contracts made before it existed (2). The members of an unregistered joint stock company, when once the company is established, have no peculiar rights or liabilities, but, like members of an ordinary firm, are entitled to the benefit of aU its contracts, and responsible for engage- ments made by the agents of the concern and for its pur- poses (a). A joint stock company cannot, as we have seen, undertake a new branch of business outside the terms of the memorandum of association without the consent of all its members. Where a life assurance company, in pursuance of a resolution passed at an extraordinary general meeting, issued policies of marine assurance, it was held that the general body of shareholders were not bound by such policies, and the holders were not entitled to prove against the assets of the company in respect of losses within such policies (6). A registered joint stock company is established upon its («) Ba/rnett v. Lambert, 15 M. & "W. L. E. 25 Ch. D. 103. 489, at pp. 492, 493, per Poltoek, 0. B., {z) Re Empress Engineering Co., 16 and AUerson, B. ; Whitehead v. Bar- Oh. D. 128 ; He Dale and Flant Limited, ran, 2 M. & Rob. 248 ; Beale v. 61 L. T. K. S. 206. Mauls, 10 Q. B. 976. (a) KeasleyY.Codd, 2 0. & P. 408, n. ; (i/) Melhado v. Porto Alegre Ey. Co., Maudeslay v. Le Blanc, 2 C. &P. 409, n. L. E,. 9 C. P. 503; Eley v. Positive See CarlenY.Srury, 1 V. &B. 154, and Insurance Co., 1 Ex. D. 20. But see Harvey v. Kay, 9 B. & C. 366. Touehe v. Metropolitan Ry. Co. Ware- (A) Re The Phoenix Life Assurance housing Co., L. R. 6 Ch. 671 ; In re Co., 31 L. J. Oh. 749. Compare Hereford Waggon Co., 2 Ch. D. 621, as Bath's case, 8 Ch. D. 334, and Hes- qualified hj In re Roiherhaiii Alum Co., keth's case, 13 Ch. D. 693. JOINT STOCK COMPANIES. 89 registration, and then the subscribers of the memorandum, to- Joint Stock gether mth any other persons who become members, are con- righte against stituted a body corporate (c). As individual partners, therefore, ^ tl^"^*'^ they incur no personal liability to third persons for its engage- P^'^^s- ments, except in one instance prescribed by the Act: viz., when the company carries on business for more than six months after the number of members is less than seven {d). The body corporate alone becomes liable to be sued for its debts or engagements, and the members can only be compelled to con- tribute to the liquidation of them, either by caUs made by the directors while the company is proceeding, or by calls made upon them as contributories under a winding up. The extent of a shareholder's liability is either unlimited, or, in the case of a limited company, restricted to the amount unpaid on the shares held by him, or of a specified guarantee. If the existing members are unable to satisfy the contributions required to be made, persons who have ceased to be such within one year previous to the com- mencement of the winding-up may be made contributories ia respect of debts or liabilities incurred by the company before they ceased to be members (e) ; but in limited companies neither past nor present members can be required to contribute towards them beyond the amount unpaid on their shares, or the amount they have guaranteed (/). By the Companies Act, 1879, it is provided that a bank of issue registered as a limited company shall not be entitled to limited liability in respect of its notes ; the members continue liable in respect of the notes as if the company had been registered as unlimited {g). The directors of a registered company incur no liability to third persons, and are only contributories in their character of members (A). If, however, any director, manager, or officer of a (o) 25 & 26 Viot. 0. 89, s. 18. itself as limited, the liability of the (d) Ibid, s. 48. then shareholders for antecedent debts (e) Ibid. s. 38. Helbert v. Banner, continues ; s. 196 ; Lmtyon v. Smith, 3 L. E. 6 H. L. 28 ; Webb v. WUffin, B. & S. 938. L. E. 5 H. L. 711 ; Morris's case and {g) 42 & 43 Viot. c. 76, s. 6, repeal- JBrett'seaae,L.R. 8 Ch. 800. ing 25 & 26 Viot. o. 89, s. 152. (/) 26 & 26 Viot. 0. 89, ss. 38, (A) In re The National Assurance and 90, 134. They may be liable for /. Association, 31 L. J. Ch. 828. But the costs of winding up. See Marsh's by 30 & 31 Vict. c. 131, s. 4, in a case, L. E. 13 Eq. 388. If an un- limited company the liability of the limited company afterwards registers directors may be unlimited. 90 MERCANTII.E PEBSOJfS. Joint Stock limited company, or any person on its behalf, sign, or authorize rigXSa^st to be signed on behalf of the company, any bill of exchange, and liabiUties promissory note, iadorsement, cheque, or order for money or to third ^ •' . , i- J -L • T, parties. goods, wherein its full name is not mentioned, ne is personally responsible for the amount, if it be not paid by the company (A). Unless the deed of settlement or articles of association provide for the giving of biUs or notes, or the business to be carried on necessarily requires it, the company cannot be bound by such instruments (i). Directors who accept bills on behalf of a company thereby represent that, as a matter of fact, they have power so to do, and if this be false the directors are personally re- sponsible to persons who have acted upon the representation (/). With regard to such instruments, the Companies Act, 1862 (k), provides that a note or biU shall be deemed to have been made, accepted or indorsed on behalf of a company registered under it, if made, accepted or indorsed in the name of the company by any person acting under its authority, or if made, accepted or in- dorsed hy or on hehalf or on account of the company by any person acting under its authority {I). With regard to the borrowing of money, unless part of or inci- dental to the ordinary busiaess of the company, e.g., a banking company (m), or powers be given them by the deed or articles to do so, the directors have no authority to pledge the credit of the shaxeholders by borrowing money, even though it be necessary to enia.ble them to carry on the affairs of the company («). (A) 25 & 26 Vict. 0. 89, s. 42, ante, 6 E. & B. 327. p. 70, n. [z). [h) 25 & 26 Vict. c. 89, s. 47. (i) Peruvian IBya. Co. v. Thames and (Z) Qtoaj v. Im/per, L. R. 1 C. P. Mersey Mar. Ins. Co., L. E. 2 Oh. 617 ; 694. Whether such an instrument Oakes v. Turquand, L. E. 2 H. L. 325 ; may be under seal, see In re General Bateman v. Mid Wales My. Co., L. E. Estates Co., L. E. 3 Ch. Y58 ; Crouch 1 0. P. 499 ; In re General Estates Co., v. Credit Fancier of England, L. E. 8 Q. L. E. 3 Ch. 758. B. 374 ; Goodwin v. Eoharta, I App. (j) West London Commercial Banh Gas. 476. V. Kitson, 13 Q. B. D. 360. As (m) The £anh of Australasia v. to the power of directors of a hank- JBreillat, 6 Moore, P. C. Ca. 152. A ing company to borrow money, and trading company has general powers give negotiable instruments for it to borrow to an extent which is rea- binding the shareholders under the sonable and necessary for the purposes deed of settlement, see T!ie Bank of of the business. In re Hamilton's Wind- Australasia V. Breillat, Moore, P. 0. sor Iron Works, 12 Ch. D. 707. Ca. 152 ; Forbes v. Marshall, 11 Exch. («) Riiketls v. Bennett, 4 C. B. 686 ; 166 ; JRoyal British Brink v. Turqnand, C'hamhcrs v. The Manchester S; M. S. JOINT STOCK COMPAXIES. 91 " There can be no doubt that where there is an express pro- Joint Stock vision against borrowing, it must be obeyed," says Lord 8el- righte^ag^nst borne. " There is also no doubt that where there is not an express *" ttod^*"*^ prohibition against borrowiag in a case of a company or a society parties. constituted for special purposes, no borrowing can be permitted without express authority, unless it be properly incident to the course and conduct of the business for its proper purposes" (o). Where the borrowing power of a company is limited, persons dealing with the company are bound to ascertain its exact power. If the power is exceeded they cannot recover against the company {p), though they are entitled to assume that powers which the company is authorized to confer upon its directors have been duly conferred (q). If the authority of directors to borrow is limited, but the company's powers are not so, the latter may ratify borrowing by the former (>•). In Tredwen v. Bourne is), Lord Abinger expressed an opinion that the question whether the directors of a miniag company have, in the absence of express provision, power to bind the company by dealing on credit, must depend on the general nature of the concern, and is a matter for the jury to decide on ; " and, I think," added his Lordship, " they would not have had much difficulty in saying, that it is in the general nature of mining concerns to deal on credit for the purpose of carrying on their business." In the subsequent case of Sawken v. Bourne (t), proof to that effect was given in a Oornish case. As the general natui-e of a Joint stock compamj is to contract Co., 5 B. & S. 588 ; Rashdall v. Ford, v. Frneet, 5 C. B. N. S. 601. Li. R. 2 Eq. 750 ; Fountaine v. Car- ( p) Chambers v. The Manchester ^ marthen M. Co., L. R. 5 Eq. 316; M. It. Co., 5 B. & S. 888; Payne y. Weeks v. Propert, L. K. 8 C. P. 427 ; Mayor of Brecon, 3 H. & N. 572 ; but Yorkshire Railway Wagon Co. y. Maclure, see Ashbury E. C. f I. Co. v. Siche, L. 19 Ch. D. 478 ; 21 Ch. D. 309. Asto E. 7 H. L. 6.i3. power of company to mortgage, see (?) Founlaine v. Carmarthen Ry. Co. , In re Patent File Co., L. R. 6 Ch. 83. L. R. 5 Eq. 316 ; Ernest v. Nieholls, 6 {o)'Bec'hoTdLSelborne,'L.C, Blackburn H. L. Oas. 401; Royal British Bank Building Society v. Cunliffe Brooks ^ Co. , v. Ttirquand, 6 E. & B. 327. 22 Ch. D. at p. 70; Chapleoy. Bruns- (r) Irvine v. Union Bank of Australia, wick Building Society, 6 Q. B. D. 696 ; 2 App. Cas. 366. Ashbury Railway Carriage and Iron Co. (») 6 M. & W. 461, at p. 465. V. Riche, L. R. 7 H. L. 653 ; Balfour (t) 8 M. & W. 703. 92 MERCANTILE PERSONS. Joint Stock througli the medium of the directors or their agents only, the righte against contract of a private memher would in no case bind the others to thM*'^*'^^ or the company, unless recognised. This ohservation appears to pa-rt'es. ^e in some degree sanctioned by the judgment in Sain v.. Cooper (t). It has been expressly decided, that an ageni appointed by the directors has no implied power to borrow money for the use of a mining company, however urgent may be the necessity (m). Being incorporated, registered companies are invested with the power which belongs to corporations, of speaking and con- tractiQg by means of their common seal, and also, without that formality, of doing such other acts and making such other engagements of an ordinary nature as convenience, almost amounting to necessity («), requires. If, too, the nature of the business in which such an association is engaged raise a neces- sary implication that, in certain cases, it was the intention of the members that this formality should be dispensed with, contracts or instruments made without it in such cases will be binding on the body {y). A trading corporation may differ from others as to its powers of contracting, and its remedies on contracts relating to the purposes for which it was formed (2). Thus, such a corporation may, in some cases, without express powers bind itself by pro- missory notes (a) and biQs of exchange (J) ; and it was even held, that the Bank of England might, without deed, appoint an agent for such purposes (c). But a non-trading corporation will (i!) 9 M. & "W. 701 : see particularly now, see post, p. 94, note (/), et seq. the judgment of Lord Abmger, C. B. [z] South of Ireland Colliery Co. v. (m) Kawtm/m v. Bourne, TUL. &,W. Waddle, L. R. 3 C. P. 463 ; 4 0. P. 595. 617 ; Dunston \. Imperial Gas Light [x] South of Ireland Colliery Co. v. Co., 3 B. & Ad. per Lord Tenterden, Waddle, L. E. 3 C. P. 463 ; 4 C. P. 0. J., at p. 131 ; Chureh v. Imperial 617 ; Church t. Imperial Gas Company, Gas Light Co., 6 Ad. & E. 846 ; Sen- 6 Ad. & E. 846. See Sunt y. Wim- dersm v. The Australian M. M. 8. N. I Local Board, 4 C. P. D. 48 ; and Co., 6 E. & B. 409. Tomg V. Mayor of Leamington, 8 App. («) Byles on Bills, 14th ed. 77. Cas. 517. lb) M. V. Sigg, 3 P. Wms. 419; (y) See ante, pp. 76, 77. The Com- Church v. Imperial Gas Light Co., 6 Ad. panies Act, 1862, contained no pro- & E. at p. 861. vision upon this subject beyond that (c) S. v. Bigg, supra. N.B. There mentioned ante, p. 90, note (k); but wasadifferenceof opinion: seel Sti-. 18. JOINT STOCK COMPANIES. 93 not have these extraordinary powers, unless they are expressly Joint Stock given, or the ordinary nature of the husiness in which it is engaged rights agaim raises a necessary implication of their existence {d). There are ^ thM*^*^^ other acts, mostly of a trifling nature, which every corporation P^^^^^- may do without seal, or even writing. Such, it has frequently been said, is the hiring a common servant, or the appointment of a bailiff to distrain (e) ; yet it is so doubtful what acts are included within this exception, and the authorities are so con- flicting (/), that it is impossible to speak on the subject with confidence. Every exception of this kind stands on the ground of necessity ((7). In general such bodies are liable, not only to actions for debts or obligations, but also for wrongs committed by their command, or for wrongs done (A), or injuries (i) arising from the negligence or misconduct of their servants in the course of their business. Thus companies may be liable for fraudulent repre- sentations made by their servants or agents in the course of their employment (k). A corporation may in certain cases be in- dicted. The imcertainty of the law with respect to contracts by cor- {d) As to authority to accept bills, 306 b ; Smith v. Birmingham Gat Light Atkim V. Wardle, 61 L. T. N. S. 23 ; Co., 1 A. & E. 526. And see Smith v. Bateman v. Mid- Wales By. Co., L. R. 1 Cartwright, 6 Exch. 927 ; Goff v. The C. P. 499 ; South of Ireland Colliery Go. Great Northern Sail. Co., 3 E. & E. V. Waddle, L. R. 3 C. P. 463 ; 4 C. P. 672 ; Browning v. The Great Central 617. See also Lindley, J., in Sunty. Mining Co. of Devon, 5 H. & N. 856; Wimbledon Local Board, 3 C. P. D. at Dr. Gray's case, 32 L. J. Ch. 326. p. 214 ; and sect. 37 of the Companies (/) See Lindley, J., in Sunt v. Act, 1867. The principle on which the Wimbledon Local Board, 3 0. P. D. at exception depends seems to be "eon- p. 214; Lord Blaeiburn in Young v. veniffiwe almost amounting to necessity." Mayor of Leamington, 8 App. Cas. at Per curiam in Church v. Imperial Gas p. 525. Light Co., 6 A. & E. 846, at p. 861 ; (y) See judgment in Beverley v. Wells w. Kingston-uponSull, L. E. 10 Lincoln Gas Light Co., 6 Ad. & E. C. P. 402. See Wimbledon Local Board at pp. 844-5. V. B'ewji, 4C. P. D. 48; TmngY. Mayor (A) Green v. General Omnibus Co., 7 and Corporation of Leamington, 8 App. C. B. N. S. 290 ; Goffy. Great Northern Cas. 617. . Bail. Co., 3 E. & E. 672 ; Abrath v. («) Plowd. 91 ; Vin. Abr. Corp. K. ; North Eastern Rail. Co., 11 App. Cas. Bro. Corp. 47; 3 Lev. 127; 1 Salk. 247; Shaw y. Port Philip GoU Co., 13 191 ; Com. Dig. Franchises, F. 13 ; Q. B. D. 103. R, y. Bigg, supra ; Yarborough v. Bank (» ) Cowley y. Mayor of Sunderland, ofEngUnd, 16 East, 6 ; 4 H. 7, 6 ; 13 6 H. & N. 565. H. 7, 17; 13 H. 8, 12; 1 Saund. (A) Swire v. Jrancw, 3 App. Cas. 106. 94 MEKCANTILE PERSOXS. Joint Stock porations, induced the legislature to make an express proyision righr^^^t as to contracts by registered companies, viz., that contracts t^thM*'^*'*^ which, if made between private persons, would he required to be parties. under seal, may be made under the seal of the company ; if they would be required to be in writing and signed, they may be in writing, signed by any person acting under the express, or implied authority of the company ; and contracts which would be valid if made between private persons, although made by parol only, may be so made by any person acting und.er t^e express or implied authority of the company. Contracts enterjed into in these several ways may, in like manner, be varied or dis- charged {I). Unless empowered by the deed • of settlement or articles rf association, or the consent of the body, individual members {m) or directors have no power to bind the company, and any con- tract they may enter into will not be obligatory upon it. . " AH who have dealings with a joint stock company," said Campbell, L. C, in Burnes v. Peniiell{n), "know that the authori^.to manage the business is conferred upon the directors, and that a shareholder, as such, has no power to contract for the company. For this purpose it is wholly immaterial whether the company is incorporated or unincorporated." The directors, of course, by the regulations, have power to carry on the, business of the com- pany (o) ; but, almost universally, this power must be exercised at a board duly convened, at which a prescribed number are present and concur {p) ; and it has been held that even a deed under the seal of the company, executed at a meeting at which the number so required are not present, wiU not bind the body [q). But a proviso as to the number of directors may be merely directory {r). The mere acceptance, too, of goods by a [l] 30 & 31 Vict. 0. 131, 8. 37. 5 Ch. 288, with Wandsworth Gas Light (m) See as to delegating the powers Co. v. Wright, 22 L. T. N. S. 404. of the directors, Palmer's Company {p) 25 & 26 Vict. c. 89, Sohed. 1, Precedents, 4th ed. 239. Table A, Arts. 66—71. (n) 2H. L. Cas. 497, atp. 621. [q] Kirk v. Sell, 16 Q. B. 290; (o) 25 & 26 Vict. u. 89, Sched. 1, D'Arcy t. The Tamar K. H. $ City. TsibleAiAxt.bb. SeeTotterdellY.Fare- Co., L. R. 2 Ex. 158. ' ham Brick Co., L. R. 1 C. P. 674. (c) Tliams Saven Dock Co.y. Sose,^i Compaxe Me Counftj Life Ass. Co^'L.B,., M. & G. 552; and see Se Sanied^s JOIX'l' S'I'OC K (().\[I'AMi;s. 95 company, and the fact that they have been used by it, will not Joint stock bind it («) ; nor wiU an acknowledgment of the price of them righfaT^^t as a debt by a meeting of the directors, consisting of a less ^ a^d "^^^^ number than that required by the deed or articles to transact P^'^'^'^^. business, enable the person supplying them to maintain an action against the company (t). The liability of a member of an unregistered company («) , not regulated by any Act of Parliament or chartered, wUl, in the absence of any special arrangement, be determined in the same manner as that of an ordinary partner {x). But such a company may be wound up under the provisions in the Companies Act, 1862 (y), when all proceedings by action or suit against the members may, after the presentation of the petition for winding up, be restrained by the Court, and after the order for winding up no action or suit can be commenced or proceeded with against a contributory (z) without the leave of the Court, and the affairs of the company are then wound up in the same manner as a registered company is wound up by the Court. Against registered companies actions or suits may be brought for the recovery of any claims or demands, either by third persons or their own members, and execution may be issued upon judg- ments obtained against them, under which their property may be seized and sold. The only means now afforded to the creditor of procuring satisfaction of his demand, if a registered company has no available effects, are proceedings to wiad it up {a). When and Smicing Co., L. E. 3 Ch. 106; New Exoh. 718. But see Smith v. Sull Sombrero Fhosphate Co. v. Erlanger, 5 Olaaa Co., 8 C. B. 668, as to the onus Ch. D. 73; and Sottomlep's case, 16 of proof. Ch. D. 681. («) See Se Bank of London Ins. Aaso- (s) MidUy v. The Plymouth S. and ciation, L. E. 6 Ch. 421. 2). ff. «nrf .B. Co. (acceptance of lease), {x) Weald of Kent Canal Co. y. SoHn- 2 Exch. 711; Someraham v. TFolver- son, 5 Taunt. 801 ; Kidwelly Canal Co. hampton W. Co., 6 Exch. 137. See v. Saby, 2 Price, 93. Sunt V. Wimbledon local Board, i (y) 25 & 26 Vict. c. 89, ss. 79, 199. C. P. D. 48, at p. 53, per Bramwell, (z) See Lanyon t. Smith, 3 B. & S. L. J. 938. {t) Kingabridge Flour Mill Co. v. The (a) 26 & 26 Vict. o. 89, s. 79. Plymouth S. and J). O. and B. Co., 2 96 MERCANTILE PERSONS. Joint Stock how such proceedings may he adopted, wlio are the person^ righte^against liable to contribute Tinder them, and what is the extent of their f"f V^j"^*^^^ liability, and the mode in which it is enforced, will be shown in to "fciiircl parties. the next seetidn (b). Upon the presentation of a petition for winding up by the Court, and before any order for winding up the Court may stay all actions and suits against the company Ic) • and after an order for winding up by the Court or under its supervision (d), no suit or action against the company may be commenced or proceeded with without the leave of the Court (e). The mode, then, to be adopted by the creditor is to prove his demand, and for this purpose provision is made that all debts and claims, present and future, certain or contingent, ascertained or soundiag in damages (/), may be proved on a just estimate of their value (g-). This proof the creditor must prefer on or before a day fixed by the Court, or he will be excluded from the benefit of any distribution made before proof (h). After payment of all these demands upon the company and the costs of winding up, any surplus that may remain is distributed among the parties entitled thereto (*). By sect. 10 of the Judicature Act, 1875, rules of bankruptcy as to debts and liabilities provable and the valuation of contingent liabilities are applied to the winding .up of any company under the Companies Acts of 1862 and 1867 (k). The liquidators with the sanction of the Court, may, if the winding up is by (b) Post, pp. 97 et seq. Oh. D. 366 ; Sorsei/'s claim, L. E. (c) 25 & 26 Viot. c. 89, ss. 85, 148. 5 Eq. 561 (claim for future rent) ; See He Briton Medical Assurance Asso- Gooch v. London Banking Association, ciation, 32 Oh. D. 503 (proceedings for 32 Oh. D. 41. (g) Me National Firumcial Co., L. E. {d) 25 & 26 Vict. u. 89, ss. 147, 161. 3 Oh. 791. («) Ibid. ss. 87, 151. Whether a (A) 25 & 26 Vict. c. 89, s. 107; Re judgment creditor will be allowed to Kit Sill Tunnel, 16 Oh. D. 690. proceed to execution is a question for (i) 25 & 26 Vict. c. 89, s. 109 ■ the discretion of the Court; InreVron McXewan's case, 6 Ch. D.' 447; s'e Colliery Co., 20 C!h. D. 442 (leave re- Alexandra Falace Co., 23 Ch. D. 297. fused) ; In re Richards § Co., 11 Ch. (k) See Bankruptcy Act 1883 D. 676 (leave granted). s. 37, in Appendix; £e Carriage Co'- (/) 25 & 26 Vict. 0. 89, ». 158. operative /Supply Association, 23 Oh D Chap,mn's case (claim for salary), L. E. 164 ; Gorringe v. Inoell India SuUer 1 Eq. 346 ; and Macdowall's case, 32 TTor/cs, 34 Ch. D. 128. JOINT STOCK COMPANIES. 97 or subject to the supervision of the Court, or with the sanction Joint stock of an extraordinary resolution where the winding up is Tolun- rig^S^ag^Onst tary, compromise any claims (I). ^^^ UabiUtiea to third parties. Section V. — Sow wound up and dissolved. As to the dissolution of a joint stock company, not regulated How wound by the Acts above mentioned, in the deed of settlement of every solved, unregistered company, if it be properly framed, clauses will be foimd providing a mode by which it may be dissolved. What- ever those provisions may be, they must be strictly pursued {in). Resolutions, even of general meetings, to reduce the capital or the number of shares prescribed by the deed, will not bind persons who are absent : and such acts .do not bind the com- pany, but are wholly inoperative and void(»). However well framed provisions of this sort might be, numerous difficulties presented themselves in carrying them out. Recourse to the ordinary tribunals was rendered hopeless, in consequence of the necessity of including every member as a party in a suit for a dissolution. Moreover, individuals who were compelled to pay more than their just proportion of the liabilities, were practically without means of effectual redress. To obviate these inconveniences, various measures were passed for the bankruptcy (o) and winding up (j») of companies ; but these are now superseded by the Companies Act, 1862, which provides a system for winding up and dissolving not only registered companies, to be presently detailed, but also enacts that any unregistered partnership, association or company con- sisting of more than seven members, except a railway company incorporated by Act of Parliament, may be wound up by an order of the Court of Chancery in any one of three events (y). (0 25 & 26 Vict. c. 89, b. 160 ; 25 & 26 Vict. c. 89, ss. 12, 49—54 ; Bath's case, 8 Ch. D. 334; 13 Ch. D. Re South Durham Brewery Co., 31 693 (C. A.). Ch. D. 261. {m) See Wilson v. Butler, 4 Bing. (o) The first of these was 7 & 8 N. C. 748 ; Lyon v. Mayties, 5 M. & Vict. c. HI. G. 504. [p) 11 & 12 Viot. u. 45; 12 & 13 («) Smith V. Goldsworlhy, 4 Q. B. Vict. c. 108 ; 20 & 21 Vict. u. 14. 430 ; Const v. Harris, Turn. & R. 496. (q) As to what are " unregistered In the case of a registered company, companies" within, the meaning of see 30 & 31 Vict. c. 131, ss. 9—20 ; 25 & 26 Viot. o. 89, s. 199, see Family S. — VOL. I. H 98 MERCANTII-E PERSONS. Joint Stock First, wten the company has dissolved or has ceased to carry how^^^T on business, or is carrying on business only for the purpose of up and dis- solved. •winding up its afEairs. Secondly, whenever the company is unable to pay its debts. The Act declares that a company shaU be deemed unable to pay its debts under the following circumstances :— (i.) Whenever a creditor to whom a sum exceeding 50/. is then due, has, by leaving at the principal place of business or by delivering to the secretary, or some director, or principal officer, or otherwise as the Court may direct, served a demand under his hand for payment, and the company has neglected for three weeks to pay or to secure or compound for the same to the satisfaction of the creditor, (ii.) Whenever an action or ether proceeding has been instituted against a member, for a debt due from the' com- pany or from him in his character of member, and notice in writing thereof has been served on the company in the manner last mentioned, and the company has not within ten days secured or compounded for such debt or demand, caused the action, &c., to be stayed, or indemnified the defendant to his reasonable satisfaction against the action, &c. and costs, (iii.) Whenever execution or other process on a judgment, &c., obtained by a creditor against the company, or a member as such, or any person authorized to be sued as nominal defendant on behalf of the company, is returned unsatisfied, (iv.) When- ever a customary decree or order absolute for the sale of the machinery, &c. of a mine has been made in a creditor's suit in the Stannary Court, (v.) And lastly, whenever it is otherwise proved to the satisfaction of the Court that the company is unable to pay its debts (r). Thirdly, whenever the Court thinks it just and equitable that the company should be wound up. The course of proceeding and the powers of the Court are the same as those applicable to registered companies wound up by the Court, presently described ; but an unregistered company; unless specially registered (s), as it may be for the purposes of L. R. 10 Ch. 542 ; 3 Ch. D. 522. ()•) 25 & 26 Vict. c. 89, s. 199. (s) Bowes V. Hope, ^-o. Inswanee Society, 11 H. L. Cas. 389. V, L. E. 5 Ch. 118 ; In re Zondon India Rubber Co., L. K. 1 Ch. 329, and oases there referred to ; In re Arthtir Avn-age Ass., JOINT STOCK COMPANIKS. 99 ■winding up, cannot be wound up under the clauses enabling Joint Stock companies to wind up voluntarily, or under the supervision of howComd" the Court {t). For the purpose of determining the Court having ^^^^^ ^' jurisdiction in the winding-up of an unregistered company, the company shall be deemed to be registered in that part of the United Kingdom where its principal place of business is situated {u). In such a winding-up, every one who is liable at law or in equity to pay or contribute (a?) to the debts or liabilities of the company, to the adjustment of the rights of the members, or the costs of the winding-up, is a contributory to the extent of such liability ; and in the event of the death or bankruptcy of any contributory, or the marriage of a female contributory, the personal representatives, heirs, devisees, trustees or husband, as the case may be, are liable, as in the instance of a registered company (y). The Court, upon the application of any creditor, may, after the presentation of the petition and before making an order for winding up the company, stay any legal proceedings against a contributory or the company (s) ; and after an order for winding- up has been made, no such proceedings for a debt of the com- pany can be commenced, or proceeded with, against a contribu- tory without the leave of the Court [ri) . The Court may, by the original, or by a subsequent order, direct that all the pro- perty and things in action of the company shall vest in the ofEcial liquidators, who may then, giving such indemnity as the Court directs, bring and defend in their official names all legal proceedings necessary for winding up the company and recover- ing its property {b). These provisions for winding up unregis- tered companies are expressly declared to be in addition to, and (i) 25 & 26 Vict. o. 89, ss. 199, 204. Great Ship Co., 33 L. J. Oh. 245. (m) Ibid. 8. 199. (a) 26 & 26 Vict. c. 89, s. 202. See {x) Re European Arbitration ; Ex Gray v. Raper, L. R. 1 C. P. 694 ; parte British National Association, 8 International Fulp Co., 3 Ch. D. 694 ; Ch. D. 679. Lmgdendale Cotton Co., 8 Ch. D. 150, (y) 25 & 26 Vict. c. 89, s. 200. Moore (b) 25 & 26 Viet. o. 89, s. 203. Tur- $J)e La Torre's case, L. R. 18 Eq. 6G1. quand v. Marshall, L. R. 6 Eq. 112 ; (a) 25 & 26 Vict. o. 89, ». 201. Re 4 Ch. 376, h2 100 MERCANTILE PERSONS. Joint Stock Companies — how wound up and dis- solved. not in restriction of, the powers conferred on the Court and the official liquidator in the winding up of registered companies, aU of which may be exercised in the winding up of unregistered companies (c). Under these provisions, when the affairs of the company have been completely wound up, the Court is to make an order that the company be dissolved (d). Registered companies may be wound up in one of three modes, viz., by the Court; or voluntarily by the company; or by a voluntary winding-up, continued under the supervision of the Court. The Court invested with this jurisdiction is the Chancery Division of the High Court of Justice, or if the com- pany be a mining company subject to the jurisdiction of the Court of the Yice- Warden of the Stannaries, that Court, unless the Vice-Warden certifies that the company may be more advantageously wound up in Chancery (e). A judge in cham- bers may exercise aU the powers of the Court (/) ; but after an order for winding-up has been made, the Court may direct that all the subsequent proceedings shall be conducted in the Court of Bankruptcy for the district within which the registered office of the company was situate [g), or a county court (A). The circumstances under which a registered company may be wound up by the Court are (») — 1. Whenever the company, in general meetings has passed &. special resolution, requiring the company to be wound up by the Court (A). 2. Whenever the company does not commence its business within a year from its incorporation, or suspends its business for the space of a whole year {I). 3. Whenever the members are reduced in number to less than seven (m). (c) 25 & 26 Vict. c. 89, s. 204. (d) Ibid. M. HI. \e) Ibid. s. 81. (/) Ibid. s. 83. is) Ibid. s. 81. \h) 30 & 31 Viot. 0. 131, ss. 41 to 46. {«) 25 & 26 Viot. 0. 89, g. 79. (*) Ibid. 8. 79 (1). Langhmn Skating Mink, 6 Ch. D. 669. (Z) 26 & 26 Viot. 0. 89, s. 79 (2). In re Tumaeacori M. Co., L. E. 17 Eq. 634. But see N'ew Gas Generator Co., 4 Ch. D. 874 ; Middlesioro' Assembly Sooms Co., 14 Ch. D. 104 ; Inre Capital Fire Insurance Association, 21 Ch. D. 209. (m) 26 & 26 Viot. u. 89, s. 79 (3). Hertfordshire Brewery Co., 43 L. J. Ch. 358. JOINT STOCK COMPANIES. 101 4. Whenever the company is unable to pay its debts (/*). Joint stock 5. Whenever the Court is of opinion that it is just and equit- how^ound able (o) that the company should be wound up. 3v^d! ^' The fourth of these events is defined to be, (i) whenever a " creditor, to whom a sum exceeding 50^. is due at law or in equity by the company, has served on the company, by leaving at their registered oflGlce, a demand under his hand requiring payment, and they have, for three weeks, neglected (^p) to pay the sum, or secure or compound for it to the satisfaction of the creditor ; or (ii) whenever execution issued on a judgment, decree or order obtained in any Court by a creditor in any proceeding instituted by him against the company, is returned unsatisfied in whole or in part ; or (iii) whenever it is proved to the satisfac- tion of the Court that the company is unable to pay its debts (q). The course of proceeding is by a petition (r), which may be presented by the company, or by one or more of the creditors, or contributories, or by these or any of them jointly or separately. Every order which may be made on any such petition operates in favour of all the creditors and all the contributories, in the same manner as if it had been made on the joint petition of a creditor and a contributory (r). Over this petition the Court has complete control ; the Court may dismiss it with or without costs, or adjourn the hearing, and make any interim or other order which is thought just (s). The Court has a discretion in the matter ; any unpaid creditor is not entitled to an order ex dehitojusfitice, and it will not be made if the winding-up would be inexpedient and opposed to the general wishes of the credi- tors (^). The winding-up is deemed to commence upon the presentation of the petition (««). In the interval between this («) 26 & 26 Vict. 0. 89, s. 79 (4). (?) 25 & 26 Vict. c. 89, s. 80. In (o) Ibid. a. 79 (S) ; In re Suburban re Western of Canada Oil, Lands, % W. Hotel Co., L. E. 2 Ch. 737 ; Eiea Gold Co., L. R. 17 Eq. I. Co., 11 Ch. D. 36 ; In re German Date [r) 25 & 26 Vict. u. 89, a. 82. Cofee Co., 20 Ch. D. 169 ; /;; re Haven (s) Ibid. s. 86. See Re Brighton GoU Mining Co., 20 Ch. D. 151. Hotel Co., L. E. 6 Eq. 339; In re (p) Not "omitted." BeelnreLon- Western of Canada Oil, ^-c, Co., ubi don and Paris Banking Corporation, L. sup. E. 19 Eq. 444; Cadiz Waterworks Co. {t) In re Chapel House Colliery Co., V. Barnett, L. E. 19 Eq. 182. 24 Ch. D. 259. (m) 25 & 26 Vict. c. 89, a. 84. 102 MEKCANTILE PERSONS. Joint Stock Companies- how ■wound up and dis- solved. commencement and the making of the order, all dispositions of the company's property (v) and transfers of shares (x) in it are void, unless the Court otherwise orders (y) ; and the Court may restrain further proceedings in any action or suit against the company upon terms (s), and, pending the appointment of liqui- dators, appoint provisionally an official liquidator {a). When the order for winding up has been made, no proceeding against the company can be commenced or prosecuted (b) without leave of the Court, and subject to such terms as it may prescribe; and (c) when a company is being wound up by the Court, or subject to its supervision, any distress, sequestration, or execution ((^), &c. put in force against its effects, after the commencement of the winding-up, shall be void (e). But under the prior section the Court will give effect to it to such an extent and upon such terms as it thinks meet (/). The Court may stay the winding-up on the motion of a con- tributory or creditor (g), and in all matters may and wUl regard (■n) Se Wiltshire Iron Company, L. R. 3 Ch. 443 ; Gibis and West's case, L. E. 10 Eq. 312 ; In re Liverpool Civil Service Asuoeiation, L. R. 9 Ch. 511 ; In re Barned's Banking Co., L. R. 3 Ch. 105 ; Solognesi's case, L, R. 5 Ch. 567 ; In re Capital Fire Insurance Ass,, 24 Ch. D. 408. (x) But contracts for the sale of them are valid : Chapman v. Shepherd, L. R. 2 C. P. 228 ; liudge v. Bowman, L. R. 3 Q. B. 689 ; Etnmerson's case, li. R. 2 Eq. 231; 1 Ch. 433. See, also, Mitchell's case, 4 App. Gas. 548 ; Tennent v. City of Glasgow Bank, ih. 615; Mitchell v. City of Glasgow Bank, ib. 626, as to refusal of directors to transfer after insolvency is known. {}/) 25 & 26 Vict. 0. 89, s. 153. (z) In re Great Ship Co., 4 D. J. & S. 63; In re Vron Colliery Co., 20 Ch. D. 442. As to distress for rent, see In re Coal Conszuners' Association, 4 Ch. D. 625; In re Oak Fits Colliery Co., 21 Ch. D. 322; General Co. v. Weiley Brick Co., 20 Oh. D. 260. {«) 25 & 26 Vict. fc. 89, s. 85. As to the practice under this section since the Judicature Acts, see Artistic print- ing Co., 14 Ch. D. 502. As to restrain- ing proceedings for penalties in police court, see Ee Briton Medical Assurance Association, 32 Ch. D. 603. (J) 26 & 26 Vict. c. 89, ». 87. The Statute of Limitations, therefore, will not run against a creditor not barred before the winding-up order. In re General Soiling Stock Co., L. R. 7 Ch. 646. (c) 25 & 26 Vict. c. 89, s. 163. [d) In re Australian Direct S. Nav. Co., L. R. 20 Eq. 325. («) In re Oak Pits Colliery Co., 21 Ch. D. 322. (/) Se Great Ship Company, 33 L. J. Ch. 245; He Bastow ^ Co., L. R. 4 Eq. 681; smdiSes Re Bank of Hindustan, L. R. 5 Eq. 69 ; In re Universal Bis- infector Co., L. R. 20 Eq. 162; He Withernsea Brickworks, 16 Ch. D. 337 ; Vron Colliery Co., 20 Ch. D. 442. [g) 25 & 26 Vict, c. 89, s. 89. JOINT STOCK COMPANIES. 103 the "wishes of the creditors and contributories (Ji), which it may Joint Stock (•1 • I. p.i /.\ Companies — ■ ascertain by summoning meetmgs ot them {i). how wound In order to conduct the process of winding up, the Court ^^y^^^" appoints one or more " official liquidators," either provisionally or otherwise, and determines what security they are to give, and their remuneration. It may reinore (Jc) them and supply vacan- cies, and, where there are several liquidators, declare whether they are to act jointly or alone {I). These officers are descrihed, not by their names, but as the official liquidators of the company, and they are to take into their custody all its property, and per- form such duties as the Court imposes {m). With the sanction of the Court, they may (w) compromise any claims or demands by or against the company ; bring and defend legal proceedings in its name and on its behalf ; carry on the business, so far as may be necessary for beneficially winding it up ; sell its property (o) ; do all acts, and execute all necessary documents in the name of the company, and use its seal ; in the case of the bankruptcy of a contributory, prove for any balance as a separate debt, and receive the dividends ; draw, accept, make and indorse bills or notes which will bind the company ; raise money on the security of its assets ; in their official name take out letters of administra- tion to a deceased contributory, and take any other step necessary for obtaining the moneys due from a contributory or his estate ; and do all other things necessary for winding up the company's affairs and distributing its assets (j)). The Court may order that they may exercise any of the above powers without its intervention, and, where an official liquidator is provisionally appointed, may limit his powers {q). With the approval of the Court the liquidators may appoint a solicitor to assist them (r). The most important step in the winding-up is to settle who (A) In re Brighton Hotel Co., L. R. [t) 25 & 26 Vict. o. 89, ss. 92, 93. 6 Eq. 339 ; In re Frofessiaml C. i- I. {in) Ibid. a. 94. Benefit Building Society, L. E. 6 Ch. («) Pearson's ease, L. R. 7 Ch. 309. 866 ; In re Langley Mill S. # /. Co., (o) The assignees of things in ac- L. R. 12 Eq. 26. tion of the company may sue in their (») 25 & 26 Vict. 0. 89, s. 91. own names: 25 & 26 Vict. o. 89, ». 157. \h) In re Marseilles Extension S.^Z. [p) Ibid. s. 95. Turquand v. Marr Co., L. R. 4 Eq. 692; In re British shall, L. R. 4 Ch. 376. Nation L. A. Ass., L. E. 14 Eq. (?) 25 & 26 Vict. o. 89, s. 96. 492. (r) Ibid. s. 97. 104 MERCANTILE PERSONS. Joint Stock are liatle to contribute the funds for the satisfaction of the how^ound" claims on the company and costs of the proceedings. These eSved^^' persons are called " contributories," and in aU proceedings, until it is finally determined who they are, this term includes everybody alleged to be liable to contribute (s). As soon as may be after the order for winding up has been made, the Court settles a list of the persons who are to become the real contributories {t) ; and in doing this, it distinguishes those who are such in their own right from those who are contributories as representatives, or liable for the debts of others (m). Upon this list everybody wiU be placed whose name appears, with his consent, upon the register of shareholders, even though, if there be creditors, he may have been induced to take shares by the fraud of the company, or its directors («). But in settling it the Court is empowered to rectify the register {y), either before or after the winding-up order, if the name of any person has been put or retained upon it improperly, e.g., because he is an infant, and therefore incompetent (s), or because he had not finally (a) agreed to take shares (6), or had agreed to take them on a condition, or subject to terms which have not been fulfilled (c), or the memorandum materially differed from the prospectus on the faith of which he had consented to take shares {d), and he had immediately (e) taken measures to have (5) 25 & 26 Vict. c. 89, s. 74. L. E. 3 Ch. 592 ; Baker's erne, ubi (t) rbid. 8. 98. supra. («) Ibid. s. 99. (i) Somernlle's case, L. R. 6 Ch. (x) Oahes v. Tm•q^umd, L. B. 2 H. 266. L. 325 ; and see Pentelow's case, L. E. (c) Fellati's case, L. E. 2 Ch. 527 ; i Oh. 178; Askew's ease, L. E. 9 Alabaster's case, li. E. 7 Eq. 273; Ch. 664 ; Say's case, L. E. 10 Ch. Wood's case, L. E. 15 Eq. 236 ; Simp- 693. son's case, L. E. 4 Ch. 184. But see {y) 25 & 26 Vict. c. 89, ss.38 and 98. ElMngton's case, L. E. 2 Ch. 511 ; and (z) Ourtis's case, L. E. 6 Eq. 455 ; Sandy's case, 42 Oh. D. 78. Capper's ease, L. E. 3 Ch. 458 ; taker's ( parte Matcher, 12 Ch. D. Levi v. Aijrcs, 3 App. Cas. 842. 284 ; Dawes' case, 38 L. J. Oh. 612 ; Me (e) In re Mercantile Insurance Asso- Milan Tramways Co., 22 Ch. D. 122. elation, 2d Ch. D. 415. (a) See s. 23 of the Bankruptcy Act, (/) 25 & 26 Viot. c. 89, bb. 90, 134. 1883. Iff) Ibid. s. 78. In re West of England [b) 25 & 26 Viot. o. 89, s. 75. Se Sank, Ex parte Hatcher, 12 Ch. D. dickering, L. R. 4 Ch. 58 ; McEwen's 284. As to marriagea after 1st Jan. case, L. E. 6 Ch. 582 ; Ex parte Mar- 1883, see 45 & 46 Viot. c. 75, ss. 13, 14, shall, L. R. 7 Ch. 324. 15, 17. [e) 25 & 26 Viot. o. 89, s. 77. (A) 25 & 26 Viot. o. 89, s. 38 (7). {d) West of England Bank, Ex parte Re Leicester Club, 30 Ch. D. 629. Sudden, 12 Ch. D. 288. See, also, (i) 25 & 26 Viot. o. 89, s. 100. 108 MERCANTILE PERSONS. Joint Stock them to the company exclusive of calls ; the Court allowing, LowCOTtniT where the company is unlimited, any set-off, except in respect of ^\y^ ^' ^■^dends or profits, and, if the creditors are paid, allowing any set-off, whether the company is limited or unlimited (i). Calls may he made hy the Court on settled contributories to the extent of their liahility, in order to raise the necessary funds for the payment of the debts of the company, the costs of wind- ing up (/c), and the settlement of the rights of the contribu- tories (/). The Court adjusts the rights of the contributories amongst themselves (ot), and makes such order as to priority of payment of the expenses of winding up out of the estate, as it thinks just («) . Orders for payment of moneys, unless appealed against, are conclusive that such moneys are due, and the matters stated therein are truly stated, against aU persons, and in all pro- ceedings, except those taken to charge the real estate of a deceased contributory, whose heirs or devisees are not themselves on the list of contributories, in which case they are prima facie evidence only (o). The Court may appoint a day before which the credi- tors shall prove their debts, or be excluded from any distribution made before they have proved (p). The powers given by this Act are in addition to, and not ia restriction of, any other powers at law or in equity of recovering calls and other moneys (q). There may be rehearings of and appeals from any order (r) . Orders of the Court may be enforced in Scotland and Ireland (s). Judicial notice is to be taken of the signatures of the officers, and of the seal or stamp of the officers appended to, and of official copies of, documents issued in the winding-up by the Court {t) ; and provision is made for com- pelling the attendance of witnesses, the taking of • evidence on («) 25 & 26 Vict. u. 89, s. 101; GrisseWs case, L. K. 1 Ch. 528 ; In re WhUehouae, 9 Ch. D. 695; Blaek ^ Co.'s. ease, L. R. 8 Ch. 254 ; Lindley on Company Law, 5th ed. 742 et seq. (A) As to past members, see Sreit's erne, L. E. 6 Ch. 800; 8 Ch. 800; Morris's case, lb. {I) 26 & 26 Vict. 0. 89, s. 102. (m) Ibid. o. 109. Se AUxandra Palace Co., 23 Ch. D. 297. [n) 25 & 26 Vict. c. 89, s. 110. (o) Ibid, s. 106. (p) Ibid. B. 107. In re Kit Sill Tunnel, 16 Ch. D. 590 ; Bieks v. May, 13 Ch. D. 236. [q) 25 & 26 Vict. c. 89, B. 119. (»•) Ibid. s. 124. See BreWs case, 8 Ch. 800 ; Craig v. Phillips, 7 Ch. D. 249. (s) 25 & 26 Viet. o. 89, s. 122. In re International Pulp Co., 3 Ch. D. 694 ; and see In re Olasgow Bank, 14 Ch. D. 628. {t) 25 & 26 Vict. c. 89, s. 125. JOINT STOCK COMPANIES. 109 oath, orally or ty interrogatories, and tlie answers of such, per- Joint stock sons may be reduced into writiag and be required to be signed howw^ouS" by them (m). Provision is also made for the taking of evidence ^^^^^^ ^^' by commissioners («). In certain cases power is given to arrest contributories and seize their papers (y). Finally, the Court orders the dissolution of the company (2), which order is reported by the oflScial liquidator to the registrar, and by him minuted, and the company is dissolved from the date of the order («). The second mode of winding up and dissolving a company provided by the Act, viz., voluntarily, may be adopted in three events : 1. Whenever the period fixed for the duration of the company by the articles of association expires, or the event happens, upon the occurrence of which it is provided by the articles that the company is to be dissolved, and the company in general meeting has resolved that it shall be wound up volun- tarily. 2. Whenever the company has passed a special resolu- tion (S) to wind it up voluntarily. 3. Whenever the company has passed an extraordinary resolution (c) that the company cannot, by reason of its liabilities, continue its business, and that it is advisable to wind it up(c^). The passing of such a resolution, that is, the second or confirmatory resolution, is declared to be the commencement of the voluntary winding- up {e). Sect. 7 of the Companies Act, 1880 (43 Yict. c. 19), mentions a fourth event. When the Eegistrar of Joint Stock Companies is satisfied that a company is not carrying on business or in operation, he may call on the company to show cause why it should not be struck off the register and dissolved. The company thus to be wound up must cease to carry on its (u) Ibid. 8S. 115, 117. of which notice has been duly given, (x) Ibid. 88. 126, 127. and held at an interval of not less than [y) Ibid. o. 118. In re Imperial Mer- fourteen days, or more than a month cantile Credit Co., L. K. 5 Eq. 264. from the date of the first meeting. (2) 26 & 26 Viot. 0. 89, s. 111. Ibid. s. 51. See He Miller's Dale, ^c. [a) Ibid. S8. Ill, 112. Co., 31 Ch. D. 211. (4) Ibid. 8. 6. A "special reso- (c) A resolution is extraordinary, lution" is a resolution by three- which would be a special resolution fourths of the members of the com- if duly confirmed. Se Bridport Old pany entitled to vote at a general Brewery Co., L. R. 2 Ch. 191 ; Stone meeting, where notice to propose such v. City and County Bank, 3 C. P. D. 282. resolution has been duly given, and (d) 2.5 & 26 Vict. c. 89, a. 129. confirmed by a majority of such mem- (e) Ibid. s. 130. Dawes' erne, L. R. bers at a subsequent general meeting, 6 Eq. 232. 110 MERCANTILE PERSONS. Joint Stock business, except so far as may be necessary for beneficially wind- how^ouud" ing it up, and aU transfers of shares made after the commence- srfv^d^ ^^^' ™ent of the winding-up, -without the sanction of the liquidators, are void, but it retains its corporate state until the affairs are finally settled (/). The resolution to wind up must be notified in the " Gazette " (g), and the property of the company is to be applied in satisfaction of its liabilities, and subject thereto, and unless otherwise provided, distributed among the shareholders in proportion to their shares (/?). One or more liquidators are to be appointed, and their remimeration is fixed by a general meeting; where several are appointed, any two may act; vacancies (subject to any arrangement with the creditors, pre- sently referred to) may be filled up by a general meeting («) ; and the Court, where there is no liquidator, on the motion of a contributory, may appoint one ; it may also remove a liquidator for due cause and appoint another (A). The company may, by extraordinary resolution, delegate to its creditors, or a com- mittee of them, the power of appointing liqiiidators and supply- ing vacancies and arranging as to their powers (/). Upon the appointment of the liquidators, the powers of the directors cease, except so far as a general meeting or the liquidators sanction their continuance. The liquidators settle the list of contribu- tories, which, when so settled, is primd facie evidence of the liability of the persons named in it ; and they make such calls on the contributories as they deem necessary ; pay the debts of the company, and adjust the rights of the contributories inter se (m). The costs, charges, and expenses of a voluntary wind- ing-up, including the remuneration of the liquidators (n), are payable out of the assets of the company in priority to any other claims (o). Any arrangement sanctioned by an extra- (/) 25 & 26 Vict. u. 89, a. 131. & S. 321 ; 6 B. & S. 326; Briahton iff) Ibid. s. 132. Arcade Co. v. Bowling, L. R. 3 0. P. [h) Ibid. s. 133. 175 ; Blaclc # Co.U case, L. R. 8 Ch. (i) Ibid. o. 140. , 254 ; In re Alliance Co., 28 Ch. D. 669. (A) Ibid. s. 141. In re British Nation («) In re BronfieU Co. (No. 2), 23 Life Ass. Ass., L. R. 14 Eq. 492 ; ^x Ch. D. 511. parte Sheard, 16 Oh. D. 107. (o) 25 & 26 Vict. o. 89, 8. 144. Some (l) 25 & 26 Vict. 0. 89, s. 135. Investment Society, 14 Ch. D. 167; see (m) Ibid. s. 133. As to set-o£E, see In re Dominion of Canada Plumbago Co., ante, p. 108. As to the right of plead- 27 Ch. D. 33 ; Batten y. Wedgwood Coal ing H, set-off to such calls, see The and Iron Co., 28 Ch. D. 317. Garnet S; M. 0. M. Co. v. Sntton, 3 B. JOINT STOCK COMPANIES. Ill ordinary resolution will bind the ciompany, and also the credi- Joint stock tors, if acceded to by three-fourths in number and value of ho™ wound them(/)), subject to the right of any creditor or contributory "^^^^^"" to appeal to the Court within three weeks from the date of the completion of the arrangement {q). By the Joint Stock Com- panies Arrangement Act, 1870 (33 & 34 Vict. c. 104), s. 2, the Court may order a meeting of creditors to be summoned ; and if a majority in number representing three-fourths in value of creditors present in person or by proxy agree to any arrange- ment or compromise, if sanctioned by the Court, it is binding on the creditors, liquidators, and contributories of the company. If applied to by the liquidators or a contributory, the Court may determine any question, or exercise the powers as to enforcing calls or any other matter (r), which it might exercise if the company were being wound up by the Court (s). The liquidators are empowered {t), with the sanction of an extraordinary resolution of the company, to make compromises with creditors, or persons claiming to be creditors, or having claims (m) ; and to compromise calls, liability to calls, debts and claims between the company and contributories or other persona apprehending liability to the company, and any question re- lating to the assets {x). If it be proposed that the whole or a portion of its business or property shall be transferred or sold to another company (y), the Hquidators, when authorised by special resolution, may enter iato an arrangement that the members may receive shares or a right to participate in the profits, or any other benefit from the pui'chasing company in lieu of cash (s). Opportunity, however, is afforded to any member dissenting from such arrangement to compel the purchase of his share by {^p) 26 & 26 Vict. c. 89, s. 136. (y) Bird v, Bircfs Fatent D. Com- (j) Ibid. B. 137. Union Bank of pany, L. E. 9 Ch. 358; and thus an Kingaton-uponSuU, 13 Ch. D. 808. arrangement for an amalgamation (r) In re Poole Firebrick and Clay Co., with another company, or for the sale L. R. 17 Eq. 268 ; In re Gold Co., 12 of the business of a company not em- Ch. D. 77 ; Eeiron's case, 15 Ch. D. powered to sell its business, may be 139. carried out. Southall v. British M. L. (s) 26 & 26 Viot. 0. 89, s. 138. Ee # A. Ass., L. E. 6 Ch. 614. Lama Coal Co., L. R. 2 Ch. 692. («) 26 & 26 Viot. o. 89, s. 161. See (<) Pearson's case, L. R. 7 Ch. 309. Southall v. British Mutual Life Ass., («) 25 & 26 Vict. c. 89, s. 159. supra ; City and County Investment Co., \x) Ibid. s. 160. 13 Ch. D. 475, 112 MEBCANTILE PERSONS. Joint Stock the company at a price to be agreed upon, or in default of how waand" agreement, to be fixed by arbitration (z). The liquidators may "di *d^ ^"" summon general meetings, and must at the end of each year, if the winding-up continue so long, lay before a general meeting an account of their acts and dealings during the preceding year (a) ; and at the conclusion of the winding-up render an account showing the manner in which the winding-up has been conducted, and the property of the company disposed of, to a general meeting, at least one month's notice of which, and of its object, must be given in the " Gazette" (6). The liquidators must also make a return of this meeting to the registrar, and three months after the date of the return the company is deemed to be dissolved (c). The voluntary winding-up is no bar to the right of a creditor to have the company wound up by the Court, either compulsorily or under supervision {d). The Court, however, will not, as a rule, make an order for winding up compulsorily or under supervision after a resolution for voluntary winding-up, unless the Court thinks that the resolution was passed fraudulently or creditors support the petition (e). The Court may provide for the adoption in the winding-up of any of the proceedings taken in the voluntary winding-up (/). Hence arises the third mode of winding-up above alluded to, viz., voluntary, subject to the supervision of the Court, the statute providing that when a resolution to wind up voluntarily has been passed, the Coilrt may, upon petition, make an order that it shaU continue, subject to such supervision {g). The making of such an order is purely discretionary on the part of the Court, who will not, without some good reason, interfere with the management by the shareholders of their own affairs {h). In all (a) 25 & 26 Vict. o. 89, ss. 162, 163. (e) In re Gold Co., 11 Ch. D. 701 ; Bx parte Fox, L. E. 6 Ch. 176. See In re London $ Caledonian Mar. Ins. sect. 73, as to settlement of disputes Co., supra, between the company and a stranger. (/) 26 & 26 Vict. u. 89, s. 146. («) 25 & 26 Vict. c. 89, s, 139. (g) Ibid. «. 147. (J) Ibid. s. 142. (A) He Beaujolais Wine Co., L. R. 3 ■(c) Ibid. s. 143. See In re London Ch. 15 ; Bank of Gibraltar and Malta, and Caledonian Mar. Ins. Co., 11 Ch. L. E. 1 Ch. at p. 72; In re Gold Co., D. 140. . 11 Ch. D. 701. (rf) 25 & 26 Vict. r. 89, a. 145. JOINI' STOCIK COMPANIKS. 113 matters relating to ■winding up under its supervision, the Court Joint stock may have regard to the wishes of the creditors or contribu- how wound tories («), which it may ascertain hy summoning meetings of g^^^^_ them. Subject to any restrictions imposed hy the Court, the liquidators exercise aU their powers as if the winding-up were simply voluntary {j), and therefore, under sect. 159, may make compromises (/c), and imder sect. 161 arrangements (/), subject to the supervision of the Court {m). In other respects, includ- ing the staying of actions and other proceedings, such an order for wiading-up has the same effect as an order for winding-up by the Court (w). If the winding-up under supervision be superseded by an order directing the company to he wound up compulsorily, the voluntary liquidators, or any of them, either alone or with others, may he appointed the official liquidators (o). Where in the course of a winding-up it appears that any past or present director, manager, liquidator, or officer of the company has misapplied any moneys of the company, or been guilty of misfeasance or breach of trust in relation to the com- pany, the Court may, notwithstanding that the offence is one for which the offender is criminally responsible, examine into the conduct of such director or other officer, and compel him to repay such moneys with interest, or make compensation (^). Below are references to some of the chief cases decided under this section. The view taken hy the Courts of their jurisdiction under it may be gathered from Coventry and Dixon's case{q). {») 25 & 26 Viot. 0. 89, s. 149. Se try and Dixon's case, 14 Ch. D. 660 ; Zoedone Co., 53 L. J. Ch. 465. In re British Guardian Life Assurance (j) 25 & 26 Vict. 0. 89, s. 151. Co., ib. 335 ; In re Forest of Dean Coal \k) James v. May, L. R. 6 H. L. Minimg Co., 10 Ch. D. 450; Caerphilly 328 ; Ex parte Foole's Executors, L. R. Colliery Co., 6 Ch. D. 336 ; Marzetti's 8 Ch. 702. case, 42 L. T. 206 ; Wedgwood Coal and (1) In re Imperial Merc. Credit Ass., Iron Co., 47 L. T. 612 ; Fliteroft's case L. R. 12 Eq. 604 ; City and County (ordered to repay dividends paid out Investment Co., 13 Ch. D. 475. of the capital), 21 Ch. D. 519 ; Ex [m) See the Joint Stock Companies parte Wilson, L. R. 8 Ch. 45 ; Ranee's Arrangement Act, 1870, supra, p. 111. c«««, L. R. 6 Ch. 104 ; Oxford Suilding (h) 25 & 26 Viot. c. 89, s. 151. Society, 35 Ch. D. 502 ; Faiirc Electric (o) Ibid. o. 152i Accumulator Co. (payment of commis- (p) Ibid. 8. 166. In re National Funds sion to a broker out of capital), 40 Ch. Assurance Co., 10 Ch. D. 118;. Coven- D. 141. (?) 14 Ch. D. 660. S. — VOL. I. 1 114 MERCANTILE PEKSONS, Joint Stock Certain persons had acted as directors without qualifications. wC^^d" This conduct Jes&d, M. E., held to be " misfeasance." This, sSv^^ '^^" however, was overruled in the Court of Appeal. James, L. J., ""'" "^ said, " I am of opinion that the word ' misfeasance' means mis- feasance in the nature of a breach of trust ; that is to say, it refers to something which the officer of such company has done wrongly by misapplying or retaining in his own hands any moneys of the company, or by which the company's property has been wasted, or the company's credit improperly pledged. It must be some act resulting in some actual loss to the com- pany." Mutilation of, or making false entries in, the books, &c., is a misdemeanour, punishable by two years' imprison- ment (f) ; and the Court may, on application of any person, direct the liquidators to institute a prosecution for any criminal offence committed by any past or present officer or member in relation to the company, and pay the costs out of the assets («), or, if the company is being wound up volimtarily, the Hqui- dators may so prosecute with the sanction of the Court if). On the dissolution of the company, its books, &o., when the company has been wound up by or subject to the supervision of the Coui't, are disposed of as the Court directs ; when the winding-up has been voluntary, as the company directs. After five years all responsibility of the company or liquidators, by reason that the books, &o. are not forthcoming, ceases (m). The Lord Chancellor, with the Master of the EoUs and a Vice-Chancellor, is empowered to make («) general orders and rules, which have accordingly been made {%j), containing full and minute regulations for the conduct of these proceedings. (r) 25 & 26 Vict. o. 89, s. 166. (x) Ibid. s. 170 ; also sect. 20 of 30 (») Ibid. B. 167. & 31 Vict. .;. 131. (<) Ibid. s. 168. {y) Reg. G., Mioh.T. 1862; General («) Ibid. s. 166. Order and Rules, 21st March, 1868. 115 CHAPTEE IV. PRINCIPAL AND AGENT. Sect. 1. Definition and Character of Agent. 2. nights of Principal against Agent. 3. Rights of Agent against Principal and Sub-Agent. 4. Mights of Third Parties against Principal. 5. Mights of Principal against Third Parties. 6. Rights of Agent against Third Particx. 7. Rights of Third Parties against Agent. Section I. — Definition and Character of Agent. An agent is a person authorized to do some act or acts in the Definition and on fl.Tftf*^pr ox name of another, who is called his principal (a) . Whatever a agent, man has power to do in his own right, he may (except in one or two very peculiar oases {b) ) appoint an agent to do for him. I say in his own right, for one agent cannot nominate another to (o) It may be objected that this ingaton, L. E. 5 H. L. 395 ; and definition does not include the limited Cassaboglou v. Gibbs, 9 Q. B. D. 221 ; class of "agents" by necessity (see 11 Q. B. D. 797. infra], and those who, though not [b) See 9 G-eo. 4, u. 14, ss. 5, 6; authomed, are regarded as agents if Srnft v. Jewsbury, L. E. 9 Q. B. 301 : their acts are ratified. See James, Beer v. London Hotel Co., L. E. 20 Eq. L. J.'s remarks in Mx parte White, 412. Nor could a devise be executed L.E. 6 Ch. 397, at p. 399, as to the loose by an agent, the Statute of Frauds use of "agency," and contrast them expressly requiring the signature of with the remarks of Jessel, M. E., in the testator; but now see 7 Will. 4 & Ex parte Bright, 10 Ch. D. 566, at p. 1 Vict. o. 26, s. 9. 570; Blackburn, J., in Ireland v. Liv- l2 116 MEROANTTLK PERSONS. Definition and perform the sutject of his agency ; vicarius non hahet vicarium ; agent. delegatus non potest dekgare (d). It is true that, when from the nature of his trust or custom of the business or employment, it cannot be expected that he should accomplish it all by his own personal exertions, he will be allowed to employ others to assist him. The above principle is subject to many exceptions. It means that an agent cannot delegate to others duties which he has undertaken expressly or impliedly to perform himself, which is not the case as to many mercantile agencies. As was said in Be Bussche \. Alt (e) — " The exigencies of business do from time to time render neces- sary the carrying out of the instructions of a principal by a person other than the agent originally instructed for the purpose, and when that is the case, the reason of the thing requires that the rule should be relaxed, so as, on the one hand, to enable the agent to appoint what has been termed a ' sub-agent ' or ' substitute ' ; and on the other hand, to constitute in the interests and for the protec- tion of the principal a direct privity of contract between him and such substitute. And we are of opinion that an authority to the effect referred to may and should be implied where, from the conduct of the parties to the original contract of agency, the usage of trade, or the nature of the particular business which is the subject of the agency, it may reasonably be presumed that the parties to the contract of agency originally intended that such authority should exist, or where in the course of the employment imforeseen emergencies arise, which impose upon the agent the necessity of employing a substitute " (/). (d) RoU. Abr. 330; 9 Co. 76 b Schmaling v. Thomlinson, 6 Taunt. 147 Catlin T. Bell, i Camp. 183; Doe A. Rhodes v. Robinson, 3 Bing. N. C. 677 Ess V. Truscott, 2 M. & "W. 385 it is generally used in English law. (e) 8 Ch. D. at p. 310. (/) Neither in the Court below, nor in the Court of Appeal, was it very clearly explained in tljis case on what Cahill \. Dawson, 3 C. B. N. S. 106. ground the principal might sue the This maxim, borrowed from Eoman sub-agent. £a«,"V.-C., in dealing with law, has been misunderstood. In re- the point, refers to Story on Agency, gard to mercantile agencies, delegatus sects. 201, 217a, who cites no autho- potest delegare is nearer the truth. The rity. The case is, so far, difficult to maxim is quoted as if a maxim of reconcile with New Zealand Land Co. v. Eoman law. But there it had a Watson, 7 Q. B. D. 374. See also meaning different from that in which Kaltenhach v. Lewis, 10 App. Gas. PHlNCirAI, AND AGENT. 117 Where tlie guardians of the poor of Witney Union employed Definition and Kempthome to draw a specification for a workhouse, and Kemp- agent, thorne employed Moon to make calculations, the Court of Common Pleas decided that Moon, though he had no communication with the guardians, might sue them for a compensation, having first proved that Kempthome, in employing him, had acted iu accordance with the custom of his trade of an architect; for, said Tindal, 0. J., " in contractibus taciti insunt quce sunt moris et consueiudinis" (g). In these cases, the agent does not so much delegate his agency as exercise a power impliedly contained in his appointment ; in doing which, he must act with precaution, and not exceed what is proper under the circiunstances of the case, and warranted hy the usage of trade. Some persons may he agents for others who could not act in their own capacity. An infant or feme covert may hecome an agent, the latter even for her own hushand (h). But it has heen decided that one of two contracting parties cannot he agent for the other, even with that other's consent, so as to bind him by a writing within the Statute of Frauds («). An agent may in general be appointed by bare words, or such appointment may be inferred from the conduct of his supposed principal respecting him, or ordinary course of dealing (/). There are, however, cases in which the nomination must be in writing, or even by deed (/c). The appointment of an agent for the purposes specified by the 1st, 2nd, and 3rd sections of the Statute of Frauds must be by writing (l) ; and it is a general rule that an agent who is to execute a deed(m), or to take or give livery of seisin (m), must be appointed by deed for that 617. See Maekersy v. Ramsays, 9 (h) Co. Litt. 52ai Wright \. Leonard, CI. & F. 818; Meyerttein v. Eastern 11 C. B. N. S. 258. Agency Co., 1 Times Law Reports, (t) Sharman-v.Brandt,'L.'R.6Ql.'B. 595. 720. (y) Moon y . Guardians of Witney (J) See post, sect. 4. Union, 3 Bing. N. C. 814, at p. 818 ; (4) Bac. Abr. Authority, A. Mw Zealand Land Co. v. Watson, L. R. [1) 29 Car. 3, c. 3. 7 Q. B. D. 374 ; and in particular De [m) Sarrisony. Jackson, 7 T. R. 207. Bmache v. Alt, ubi supra; Black t. (m) 2 Roll. Abr. tit. Feoffment (R.), Cornelius, 6 So. Sess. Gas. 4th Series, pi. 3, 4. 581. 118 MERCANTILE PERSONS. Definition and purpose. Moreover, as a corporation aggregate can in general agent? ^'° act only by deed, its agent must likewise be so appointed (o), ' thougb some trifling agencies, even for corporations, may be created witbout one ; and trading companies may in general do aU acts witbout a deed {p) . Tbougb an agent cannot biad bis principal by deed unless appointed by deed, tbe deed executed by tbe agent may bind tbe principal as a writing {q). Tbere are two extensive classes of mercantile agents, viz., factors, wbo are entrusted witb tbe possession as well as the disposal of property, and brokers, wbo are employed to con- tract about it, witbout beiag put in possession {r). Tbougb brokers are usually employed in tbe manner just stated, yet every person so employed is not a broker. Tbus it would seem tbat neitber auctioneers («), nor mercbants acting by commission from correspondents abroad {t), can properly be caUed broken. It is, perbaps, strange tbat tbe meaning of tbe word sbould not be better ascertained, for, until tbe passing of tbe London Brokers Relief Act, 1870 (m), and tbe London Brokers Eelief Act, 1884 («), it was required by stat. 6 Anne, c. 16, and 57 Geo. 3, c. 60, tbat brokers in London must be admitted by tbe mayor and aldermen, paying 61. on admission, and a like sum annually. Since tbe 29tb September, 1886, tbe necessity of admission by tbe court of tbe mayor and aldermen, and tbe obligation to pay tbis sum, are abolisbed {x). Tbe penalty imposed by tbe 67 Geo. 3, o. 60, is also abolisbed ; and a stockbroker wbo has (o) 9 Edw. 4, pi. 59 ; Bro. Coit. 24, 25 Ch. D. 31, at p. 34. See per 34; 1 Eoll. Abr., tit. Corporations Bannen, J., in Wollett v. MoUmm, (K), 1 ; Home v. Ivy, 1 Hod. 18 ; L. E. 7 0. P. 84, at p. 97; and below, Arnold -7. Mayor of Foole, 4 M. & Gr. p_ ig7_ (s) Wilkes V. Ellis, 2 H. Bl. 555. 860. {p) Plowd. 91 ; Viu. Abr. Corp. (<) janssm v. Green, 4 Burr. 2103. See ante, pp. 92, 93. As to who are brokers, see MilfordT. (q) Sunter v. Parker, 7 M. & W. Sughea, 16 M. & W. 174; a;D.& Ex parte 322 ; In re WhitUy Partners, 32 Ch. Dixon, supra. D. at p. 340, per Cotton, L. J. („) 33 & 34 viot. 0. 60. (>■) Quoted by Brett, L. J., in Ex («) 47 Viot. 0. 3. parte Dixon, 4 Ch. D. 133, at p. 137.; \x) Ibid. s. 2. and Chitty, J., in Stevens v. filler, PRINCIPAL AND AGENT. 119 not been admitted may not only carry on business without lia- Definition and ,...,, character of Dility to a penalty, but recover his commission {y). agent. Section II. — Rights of Principal against Agent and Sub- Agent. The duties of the agent to his principal must of course Eights of depend on the instructions contained, either expressly or im- ^^^^g^ent pliedly, in his appointment ; for, be those what they may, his — ' duty is to carry them into effect, if possible, to the letter (s) ; unless, indeed, his 6bedience would involve a fraud on or wrong against third persons, for no contract can oblige a man to make himself the instrument of fraud («). The appoint- ment is his only authority : it may be general, to act in all his principal's affairs, or special, concerning some particular object ; it may be limited, by certaia instructions as to the conduct he is to pursue, or unlimited, i.e., leaving his conduct to his own discretion {b) ; but this discretion should not be exercised at random, for, in the absence of specific instructions, it is his duty to pursue the accustomed course of that business in which he is employed (c). A stockbroker employed to buy or sell on the Stock Exchange may bind his principal by the rales of the Stock Exchange {d) ; but the principal will not be bound by rules of a market or trade, if they are unreason- {y) As to the former state of the law, Foster y. Pearson, 1 0. M. & E. 849; see Cope v. Rowlands, 2 M. & W. 149 ; Seisoh v. Carrington, 5 C. & P. 471. and Smith v. Undo, i 0. B. N. S. 395. [d) Sutton v. Tatham, 10 A. & E. 27 ; («) Ouerreiro v. Feilc, 3 B. & Aid. Bayliffe v. Sutterworth, 1 Exoh. 425 ; 616. But if the instructions fairly Boivring v. Shepherd, L. E. 6 Q. B. admit of two interpretations, act- 309 ; PolhcJc v. Stables, 12 Q. B. 765 ; ing bon& fide he may adopt either. Grissellv. Bristoive, L. E. 3 C. P. 112 ; Ireland V. Livingston, L. E. 5 H. L. 4 C. P. 36 ; Coles v. Bristowe, L. E. 6 395 ; Loring v. Davis, 32 Ch. D. Eq. 149 ; 4 Ch. S ; Maxled v. Paine, 625 ; Pole v. Lernk, 28 Beav. 662. L. E. 4 Ex. 81 ; Nickalls v. Merry, (a) Bexwell r. Christie, Cowp. 395. L. E. 7 H. L. 530 ; Sartos t. Bubens, (i) Smart v. Sandars, 3 C. B. 380. 22 Q. B. D. 254 ; and, in certain There may be, though rarely there is, trades, a factor or broker may by an universal agency. custom sell in his own name : Johnston {c) Eussell V. Palmer, 2 Wils. 325 ; v. Vsborne, 11 A. & E. 549 ; Zienardv. Smith y. Colagan, 2 T. E. 188, in notis ; fresslar, 3F. & F. 212 ; and buy in his Russell V. Sanhey, 6 T. E. 12; War- own name; Bostock v. Jardine, 3 H. wicke V. Noakes, Peake, 68 ; Ireland & 0. 700 ; Cropper v. Cook, L. E. 3 V. Livingston, L. E. 5 H. L. 396. See C. P. 194. 120 MERCANTILE PERSONS. Eights of able or illegal, and he is not aware of them {dd) . The agent, if agS^agent. prevented by some unforeseen obstruction from pursuing the accustomed course, should give due notice to his principal (e). He must possess a competent degree of skill, in order to enable bim to do so ; if he engage without such skill he is a deceiver, and wOl be justly liable for the consequences of his iacapa- city (/). He is, moreover, responsible not only for himseU, but for those whom he may employ under him {g), unless he is authorized to employ others ; in which case he wiU be answerable only for negligence or want of skill in choosing them (A). The most satisfactory mode of determining whether he has exercised such skill is, to show by evidence whether a majority, or even a moiety, out of a given number of skUful and experienced per- sons, would have acted as he has done (i). Of whatever descrip- tion his authority may be, if he exceed it and any loss ensue, that loss will fall on him IJ) ; though, if a benefit result, he will not be allowed to share it, but must account for it to his employer (/c). However, if his principal subsequently recognize his departure from the letter of his instructions, he is exonerated; for minis ratihabitio retrotrahitur et mandato priori mquiparatur (/). An.d such a recognition may be inferred from the employer's conduct. Thus, the receipt of interest on a sum lent by the agent recognizes the loan [m) . It has been already said, in the chapter on Partnership, that from a person standing in a situation of confidence with regard to another the strictest good faith is required. This maxim [dd) Boiinsonr. Mollett,'L.'R.TH..li. (j) Catlin v. Bell, i Camp. 183; 802; Mead V. Anderson, 13 Q. B. D. Barron y. Fitsgierald, 6 Biag.'S.C. 201. 779 ; Seymour v. Bridge, 14 Q. B. D. As to the measure of damages, Casaa- 460; Ferry v. Barnett, ib. 467; 15 boglou v. Gihis, 9 Q. B. D. 220; 11 Q. B. D. 388 (C. A.). Q. B. D. 797. («) Callmder t. Oelrichs, 5 Bing. N. {k) Russell v. Palmer, 2 'Wils. 325, C. 58. and post, p. 123. {f) Earmery. Cornelius, SC.B.TS.B. [l) Secretary of State for India v. 236 ; Beys v. Tindall, 1 B. & S. 296 Kamachee Boye Sahaha, 13 Moore, P. (house agent). C. Ca. 22, and infra. (y) Lord North's case, Dy. 161a; (m) Clarke v. Pct-W«»-, 2 Freem. 48; Machersy-y. Mamsays, 9 CI. & F. 818. Frince v. CUrk, 1 B. &: C. 186; and (A) Evans on Principal and Agent; see Fitngerald v. Dressier, 7 C. B. N. S. 2nd ed. 255. 374 ; Sentance v. SoAjoley, 1 3 0. B. N. S. (i) Chapman v. Walton, 10 Bing. at 468 ; and infra, p. 140. p. 63. riUNClPAL ANU AGENT. 121 applies in full force to agents («), of whose morals the law is so Rights of careful that it will not suffer them even to incur temptation. agrS^agent. Thus, an agent is bound to disclose the fact that he is acting for ' both parties in a contract of purchase and sale [o). So, too, an agent employed to sell is not allowed to be the purchaser, at least not unless he make known that he intends to become such, and furnish his employer with all the knowledge he himself possesses (p), or unless the Court, perceiving that the principal would lose by a re-sale, think fit on that account to uphold the transaction {q). So, neither can an agent employed to purchase be himself the seller, unless there was a plain understanding between him and his principal, and a full disclosure of his interest (r). No usage to that effect will be binding upon the principal. It matters not that he has not been injured; the Court will inflexibly adhere to the rule that no profit can be made by the agent in the course of his agency without the consent of the principal (s). It is important to bear in mind that a contract which has been entered into by an agent who has secretly stipulated for gain to himself is voidable by his princi23al. " When a bribe is given, or a promise of a bribe is made," said Cockburn, C. J., in Jlarrington v. Victoria Crntcimj Dock Co. {(), " to a person in the employ of another by some one who has contracted, or is about to contract, with the employer, with a view to inducing the person employed to act otherwise (m) Hugueniny.Baaeley, 14Ve8. 273. Barkery. Sarrison, 2 Coll. 546. (o) McDevitt v. Connolly, 16 L. E. {r) Masacy v. Davies, 2 Ves. jun. (Ir.J Ch. D. 500. 317 ; Eimba- v. JBarber, L. R. 8 Ch. {p) Lowther v. lowther, 13 Yes. at 56 ; jRobinaon t. Mollett, L. R. 7 H. L. p. 103; Charter v. Trevelyan, 11 CI. 802; Dunne v. Engliah, L. R. 18 Eq. & F. 714; Lewia v. Sillman, 3 H. 524; Bentley v. Craven, 18 BeaT. 75; L. Ca. 607 ; Moriaon v. Thompaon, G. W. Jnaurance Co. v. Cunliffe, L. R. 9 L. R. 9 Q. B. 480; WilUamaon v. Ch. 525; Williamaon v. Barbour, 9 Barbour, 9 Ch. D. 529 ; Emma Silver Ch. D. 629 ; In re Cape Breton Co., Mining Co. t. Grant, 11 Ch. D. 918 ; 29 Ch. D. 795 ; Cavendiah Bentinch v. Ee Cape Breton Co., 26 Ch. D. 221 ; 29 Fmn, 12 App. Ca. 652. Ch. D. 795. (s) Farlcer v. McEenna, L. R. 10 (y) Lowther v. Lowther, ubi sup. Lord Bardioicke V. Vernon, 4 Ves. 411 Whitcomb v. Minchin, 5 Madd. 91 Ch. 96. {t) 3 Q. B. D. 549, p. 551 ; Smith V. Sorby, 3 Q. B. D. 552, n. ; Jamea, O/iuwv. CoMri, Dan. 301; S.C, 8 Price, L. J., in Panama, fc. Co. v. India 127; and if he have sold again for a Subber, ^c. Co., L. R. 10 Ch. 516, at profit, the Court will consider him a p. 526. trustee to that extent for his employer : 122 MEaCANTIl.E PERSONS. Eights of than with loyalty and fidelity to his employer, the agreement is a agXTttgent. Corrupt one, and is not enforceable at law, whatever the actual effect produced on the mind of the person bribed maybe." And if an agent, who is employed to purchase, piirchase for himself, he wiU be considered a trustee for his principal (t). This is in accordance with the rule of the Civilians : Tutor rem pupilli emere non potest : Idemque porrigendum est. ad similia, id est, ad euro- tores, procuratores, et qui negotia aliena gerunt{u). The Legis- lature has, in one instance, enforced these doctrines, by prohibit* ing agents, employed to buy or sell cattle in London, from buying or selling on their own account {x) ; and it has, as we have seen, been held that one contracting party cannot act as the agent of the other, even with that other's consent, so as to bind him by writing within the Statute of Frauds. An agent wiE not be allowed to dispute the title of his principal to the subject-matter of the agency {y). Thus, a wharfinger who has acknowledged that he holds goods for a particular transferee cannot afterwards refuse to deliver them to him, and, if he do refuse, is liable in trover. Nor can an agent who occupies a confidential position set up in his favour against the principal or personal representatives the Statute of Limitations ia an action for an account. To what class of agents this applies is not very clear ; it is conceived that the statute does not protect persons occupying a confidential position as agents (s) . It is a very essential part of the good faith reqtured from an agent that he should keep a clear account, and communicate the result from time to time to his employer (a). The agent's [t) Leee v. Nuttall, 2 M. & K. 819 ; this rule does not apply : Sardmam v. Sank of London t. Tyrrell, 27 Beav. Wileoch, 9 Bing. 382 ; for no man is 273 ; 10 H. L. Ca. 26 ; Be Bttmche v. bound to make himself the instrument Alt, L. E. 8 Ch. D. 286 (where tlie of a fraud. Be& Crawshay y . Thornton, question of acquiescence ia considered) ; 2 My. & Cr. 1. So if the bailment Karris y. Truman, 9 Q. B. D. 264. has been determined by what is equiva- (m) Dig. 18, 1, 34, § 7 ; Williaim v. lent to an eviction by title paramount : ■, L. E. 1 P. C. 352 ; Fisani v. BiddU v. Sond, 6 B. & S. 226. Att.-Gen. of Gibraltar, L. E. 5 P. 0. (z) Burdiclc v. Garrick, L. E. 5 Ch. 616. 233 ; Be Bell, 66 L. T. 767 ; Zyell v. {x) Stat. 31 Geo. 2, o. 40, s, 11. Kennedy, 14 App. Cas. pp. 459 et seq. (y) Soil V. Griffin, 10 Bing. 246. («) Fearsey. Green, iJaa. &'W. HO. However, if the property in the agent's See Turner v. Burkinshaw, L. E. 2 Ch. hands have been fraudulently obtained 488, at p. 491. by the principal from third persons, PRINCIPAL AND A(iE>J'. 123 duty is to be constantly ready with his accounts. " I should Rights of say that if the accounts show that he has money which he ought agaiiift*affent. to pay over, he ought also to he constantly ready to pay " (b). ' " In stating this account, the principal will, in the absence of his own express or implied agreement to the contrary (c), be entitled to all profits and advantages made by the agent in (d) the business beyond his ordinary remuneration, and also to every increase made from his own property (e). Thus, an agent who has made interest upon his principal's money will, in general, be obliged to account for it(/). But a mere stake- holder, such as an auctioneer receiving a deposit, will be ex- cused (.9) ; and no interest is due for money which has laid dead in the agent's hands, unless his employment was of such a nature as to render it his duty to invest it (A). It is on this principle that the employer has a right to every increase made from his own property. If he engage a servant or agent, stipulating for his whole time and labour, ex. gr., the master of a ship, and that servant imdertake another agency, the first employer will be entitled to retain against the servant any remuneration earned by him in his second occupation (i). The agent will also be charged with all payments actually made to him, and with aU losses incurred by his own negligence, or even through the imposition of a forger; for when an agent is called on to transfer his employer's property, by virtue of (b) Lord Eaher, M. R., in Harsant v. [e] Brown v. Littmi, 1 P. Wms. 141 ; Jjlaine, 66 L. J. Q. B. p. 613. Mmam/ v. Davies, 2 Ves. jun. 317 ; (c) lord Chedwovth v. Edwards, 8 v. Jolland, 8 Ves. 72 ; Docker v. Ves. 48; Beaumont \. BouUhee, 11 Ves. Somes, 2 My. & K. 655; Shalleroesv. atp. 360. See Shepherd \.Mriidsione,10 Oldham, 2 J. & H. 609. See Taylorv. Mod. 144 ; Holden v. Webber, 29 Beav. Flumer, 3 M. & S. 562. 117. (/) See Sogers v. Boehm, 2 Esp. {d) DipUck V. Blackbum, 3 Camp. 704. 43; Morison v. Thompson, L. R. 9 (ff) Saringion v. Hoggart, 1 B. & Q. B. 480 ; Liquidators of Imperial Ad. 577. Merc. C. Go. v. Coleman, L. R. 6 H. L. (A) t. Jolland, 8 Ves. 72 ; Rogers 189 ; Dunne v. English, L. R. 18 Eq. v. Boehm, see supra. 624. Of oouise, the rule stated in the (i) Thomson v. Savelocli, 1 Camp, text will not apply if the principal is 527 ; Lidgeit v. Williams, 4 Hare, 462; aware that the agent is remunerated Diplock v. Blackburn, 3 Camp. 43 ; by some allowance from other parties : Abb. on Ship. 12th ed. p. 123; Mao- Oreat Western Insurance Co. v. Cunliffe, donell on Master and Servant, p. 220. L. R. 9 Ch. 025. See Patmorey. Colburn, 1 C. M. & R. 65. 124 MEKCANTILE PEKSO.NS. Bights of an authority given to a stranger, he must examiae into its agS agent, validity at his peril (j). But he will not be chargeable with any loss incurred by him, without default or neghgence, while he is engaged in the prudent exercise of his discretion, and in pursuance of the regular and accustomed course of trade {k). If he place his priuoipal's money to his own account at his bankers, without any mark distiuguishing it from his own, he will be answerable for it if the tanker fail ; for other- wise he might treat it as his own if the banker's solvency con- tinued, and as his principal's in case of failure (1). " Wherever a specific chattel is iatrusted by one man to another, either for the purposes of safe custody or for the purpose of being disposed of for the benefit of the person intrusting the chattel, then, either the chattel itself, or the proceeds of the chattel, whether the chattel has been rightfully or wrongfully disposed of, may he followed at any time, although either the chattel itself, or the money constituting the proceeds of that chattel, may have been mixed and confounded in a mass of the like material " (m). The accounts between an agent and his principal might always have been investigated in a court of law by an action of account (w), the foundation of which, according to Gibbs, 0. J.j was that the party wanted an account and was not able to prove his items without it, or if the principal could prove the items, he might sue in indebitatus assumpsit (o) . But if the agent had refused or neglected to account, the principal might maintain a (j) Forsterf. Clements, 2 Camp. 17. the existence of the rule there is no See Smith v. Mercer, 6 Taunt. 76 ; doubt. See, as to the limitations of Sogers \. Kelly, 2 Camp. 123; Wilkin- the principle, In re Eallett's Estate, ion V. Johnson, 3 B. & C. 428 ; Innesv. 13 Ch. D. 696 ; Sancoch v. Smith, 41 Stephenson, 1 M. & Eob. 145 ; Eobarts Ch. D. 4S6. V. Tucker, 16 Q. B. (560 ; The British (m) Thesiger, L. J., in Re Eallett's Linen Co. t. Caledonian Ins. Co., 4 Estate, 13 Ch. D. at p. 723. Macq. 107. But see Bills of Exchange {n) Scott y. M'Intosh, 2 Camp. 23i. Act, SB. 60, 80, and 82. (o) Tomkins v. Willshear, 6 Taunt. (k) Zwilchenbart v. Alexander, 1 B. & 431 ; Arnold v. Webh, 6 Taunt. 432, n. S. 234 ; Bank of Canada v. Bradshaw, This is the usual course, and if the L. E. 1 P. C. 479. items be disputed a judge -will refer it: (/) See Wren-nr. Eirton, 11 Ves. 377; See Com. Law Procedure Act, 1854; Massey v. Banner, 1 J. & W. 241 ; 4 Supreme Court of Judicature Act, Madd. 413; Fletchers. Walker, 3 Madd. 1873, ss. 56, 57 ; Sup. Court of Judi- 73 ; Darke v. Martyn, 1 Beay. 625. cature Aot, 1884, ss. 9, 10. The reason given is unsatisfactory ; of PRINCIPAL AND AGENT. 125 special action against him, for his breach of duty in refusing to Eights of account (p), or sue in equity {q). Now in an action a principal against agent, may assert any of these claims, and may have a discovery of books and papers, and the benefit of the defendant's oath (r). A few instances of fraudulent omissions or insertions in accounts between principals and agents wiU warrant the re-opening of accounts which have been long closed (s). As mercantile agents are generally employed in sales or pur- chases, let us examine somewhat more particularly their duties with reference to those contracts. Factor's Duties. — ^A factor is bound to keep the goods en- trusted to him for sale with the same care that a prudent man would keep his own {t). He is not liable in case of robbery, fire, or other accidental damage happening without his de- fault (?<), unless previous to such damage he had committed some improper act, had it not been for which the property might have escaped; for then he wiU be answerable («), and will not be allowed to say, that perhaps it might not have {p) WUkyna or Wilkin v. Id., Carth. 89 ; Salk. 9. [q] Mackenzie v. Johnston, 4 Madd. 373. See Scott v. Surmm, WiUes, 404 ; £rmalinger\. Gugy, 5 Moore, P. C. Ca. 1 ; Padwick v. Stanley, 22 L. J. Ch. 184. (r) 36 & 37 Viot. o. 66, s. 34 ; Ord. XV. 1. 1. (s) Williamson v. Sarbour, L. E. 9 Ch. D. 629. (<) Coffga V. Bernard, 2 Ld. Eaym. at p. 918 ; 1 Sm. Leading Cases, 9th ed. 201; Verev. Smith, 1 Vent. 121. («) Co. Litt. 89 a ; Anon., 2 Mod. 100; Vere v. Smith, 1 Vent. 121. The liability of carriers and inn- keepers is more extensive. As to the former, see Book III., Ch. II., Con- tracts with Carriers. As to innkeepers, they are bound to keep their guests' property safe from thieves : Cah/e'a case, 8 Kep. 33 a ; Richmond v. Smith, 8 B. & C. 9 ; Kent v. Shmkard, 2 B. & Ad. 803 ; Jones v. Tyler, 1 A. & E. 522 ; farnworth v. Fachwood, 1 Stark. N. P. C. 251, et in notis ; unless, indeed, the loss would not have happened if the finest had used the ordinary care of a prudent man : Burgess v. Clements, 4 M. & S. 306 ; Armistead y. Wilde, 17 Q. B. 261 ; Cashillv. Wright, 6 E. & B. 891 ; Oppenheim v. The White Lion H. Co., L. E. 6 C. P. 615 ; Serbert t. Markwell, 45 L. T. N. S. 649; affirmed, W. N. 1882, p. 112 ; Walker v. Mid- landSail. Co., 65L.T. N.S.489; orthe thieves were his own companions or servants : Calye's case, 8 Co. 32. The innkeeper is also liable for any loss or injury arising "pro defeotu hospita- toris vel servientium suorum," and the loss or injury will be presumptive evi- dence of negligence : Dawson v. Cham- ney, 6 Q. B. 164. His liability, how- ever, is now limited to 30/., unless the loss has arisen from wilful neglect, &c., of himself or his servants, or the goods have been deposited for safe custody: 26 & 27 Vict. o. 41, s. 1. This liability of the carrier and inn- keeper is on account of the peculiar nature of their respective employments : Coggs\. Bei-nard, 2 Iji. Eaym. at p. 918. {x) Caffrey v. Darby, 6 Ves. 496 ; but see Tobin v. Murison, 5 Moore, P. C. Ca. at p. 128. 126 MERCANTILE PERSONS. Eights of escaped even had he acted rightly, for it is a rule of law thai m principal against agent, man shall qualify his oion wrong (y) . Where goods are consigned to a factor it is his duty to insure them, or at least to make every usual exertion to insure them, at the request of his principal, if in the course of their previous dealings he have been used to do so, or even though he may not have been used, if he have effects in hand enough to cover the expenses of insurance, or if the bill of lading contain a requisi- tion to insure, or if it be sent with an order to that effect, for by accepting the goods under it he agrees to such requisi- tion. In any of these cases, if he neglect to make the fit insurance, he will be responsible for damage which would have been covered thereby (z). And where it is the duty of an agent to insure, it is his duty also to give notice to his principal in case of his being unable to effect an insurance {a). He may be answerable to his principal for the acts of a sub-agent. M. employed E.. & Co., bankers in Edinburgh, to obtain payment of a biU drawn by him upon W. C. at Calcutta. E. & Co. accepted the employment, transmitted the bill to 0. & Co., of London, who transmitted it to P. & Co., their correspondents in Calcutta, to whom the bill was duly paid. P. & Co. failed. This was held to be no answer to M.'s claim against E. & Co. ; with P. & Co. M. had no privity (b). If the price be limited by the agent's instructions, he must sell for that, and he will not he justified in deviating from his instructions by the circumstance that, after receiving the goods, he has made advances to his principal, of which he has required payment, and informed him of his intention to sell; for although advances made by a factor confer a lien (c) on the goods in his favour, they do not create a pledge. Hence, too, if a factor holding goods with an authority to sell on certaia terms, make advances to his principal, the failure of the principal to repay (y) J)avis v. Garrett, 6 Bing. at pp. (a) Callander v. Oelrichs, 5 Bing. N. 723, 724. 0. 58. {z) Smith V. Zaseelles, 2 T. R. 189; (*) Macleersy v. Rammys, 9 01. &F. Smith Y. Coloyan, 2 T. R. 188, n. ; 818 ; Skinner v. Weguelin ^ Co., 1 Cab. Wallace V. Tell/air, ibid.; Tickel y. & El. 12. &e6 llxchange National Bank Short, 2 Ves. sen. 239 ; Smith v. Price, v. Third National Bank, 5 Davis, TJ. S. 2 F. & F. 748. Supreme Court, p. 290. («) He Witt, 2 Ch. D. 489. PRINCIPAL AND AGENT. 127 them within a reasonable time after demand does not render Eights of principal that authority to sell irrevocable, but the principal retaias his against agent. right, in the absence of any express agreement or custom, to dictate and vary from time to time the terms of sale. The factor, therefore, mil not be justified in effecting a sale on the original, or on any other terms, in defiance of subsequent instruc- tions, even though, in the exercise of a sound discretion, he may think those terms, and in fact prove them, to be most advantageous to the principal (d). Whether he will be enti- tled to give a warranty will depend upon what is usual in the particular trade or business (e). ,If no price be limited, he must sell for what the goods are fairly worth. If the property be of a description commonly sold for ready money only, he must not sell upon credit or barter the goods (/) ; for an agent employed generally to do any act is authorized to do it only in the usual way of business {g). But if he be factor in a sort of dealing or trade where the usage is to sell upon credit, then if he sell to a person of good credit at the time, he is discharged, and will be entitled to his commis- sion, though such vendee may afterwards become insolvent {h) ; provided that the credit which he gave was reasonable and usual, and that his principal was made acquainted with the transaction within a reasonable and usual space of time. However, as some merchants do not choose to run this risk, and to trust so imph- citly to the discretion of their factors, an agreement called del credere has been invented, the name of which is taken from an Italian mercantile phrase, signifying guarantee, and by which the factor, for an additional premium beyond the usual commis- sion, when he sells goods on credit, becomes bound to warrant the solvency of the purchaser («). It was at one time thought (d) Smart V. Sandars, 3 C. B. 380; &rl of Ferrers v. SoUns, 2 C. M. & 5 0. B. 895. E. 152; Sykes v. GiUs, 5 M. & "W. (e) Benjamin on Sale, 3rd ed. pp. 645. See Boden v. French, 10 C. B. 616, 617 ; Pickering v. Smk, 15 East, 886 ; Boormm v. Brown, 3 Q. B. 511. p. 45 ; as to a factor's authority to {h) Anon., 12 Mod. 614; Scoit y. insure, see Lucena v. Crauford, 2 B. & Surman, WiUes, 406. See Jtussell v. P. N. R. 269. Hankey, 6 T. R. 12 ; Knight r. Fhj' {/) Guerrem v. Feile, 3 B. & Aid. mouth, 3 Atk. 480. 616. (») See Mackenzie v. Scott, 6 Bro. P. {g) Wiltshire v. Sims, 1 Camp. 258 ; C. 280, Tomlins' edit. ; Shaw v. Wood- 128 MEKCANTILE PEESOXS. -Eights of that an agent acting under a del credere commission -was not a^Snfttgent. merely in the same position as a surety, responsible only in the case of the default of the purchaser, hut that he was Hahle to his principal in the first instance {k) ; hut that doctrine has been overturned by subsequent authorities {I), which have settled that he is but in the position of a surety {m). Accordingly, a con- signee who is free to sell at any price, and at any time he Ukes, is not a del credere agent (w). If indeed a factor, after the sale, remit his own note or acceptance to his principal for the amount of the proceeds, he will be liable on that, whether employed under a del credere commission or not, and whether the vendee be or be not solvent. For, by giving such an instnunent, he lulls all the suspicions of his employer, and causes him to dismiss all care about the solvency of the purchaser (o). With respect to Purchases. — As no agent can lawfully exceed his orders or authority, it follows that, if he do so, his principal, though he may perhaps insist upon keeping them if he think it for his advantage [p), has a right to refuse the goods impro- perly purchased [q). It has been said that, in such case, i£ he have advanced money on them, he may, instead of returning, take upon himself to dispose of them, as factor for the agent who transgressed his orders (r). But then he must repudiate the transaction, and give notice of his disagreement to the agent within a reasonable time, else he will be taken to have adopted coeh, 7 B. & C. 73 ; Ex parte White, 478. L. E. 6 Ch. 397, at p. 403, per MelUsh, («) Ex parte White, L. R. 6 Ch. 397. L. J. (o) Lefevre v. Lloyd, 6 Taunt. 749 ; (A) Gfrove v. Dubois, 1 T. E. 112 ; Simpson v. Swan, 3 Camp. 291 ; Goupy Size V. Dickason, 1 T. E. 285; WienhoU \. Sarden, 7 Taunt. 159. V. Roberts, 2 Camp. 586 ; Beclcwith t. {p) Taylor r. Flumer, 3 M. & S. 662. Eullen, 8 E. & B. 683. (q) Ireland v. Livingston, L. E. 6 Q. {I) Morris v. Cleanly, 4 M. & S. 566 ; B. 616 ; 5 H. L. 395. A question Hornby v. Lacy, 6 M. & S. 166 ; Cum- sometimes arises whether, when the miMg V. Forester, 1 M. & S. 494 ; Baier agent is ordered to purchase a given V. Langhorn, 6 Taunt. 519 ; Ex parte quantity, he can purchase hy parcels: White, ubi sup. see Ireland v. Livingston, L. E. 2 Q. B. (m) Strictly speaking, he is not a 99 ; /oAms) 14 Q. B. D. 460. But qucere. claim), L. R. 8 Ch. 921 ; Cruse v. Paine, See also Bridger v. Savage, 15 Q. B. L. E. 6 Eq. 641. 363 ; and ffallandv. Hall, i Times Law {p) Laoeyir. Sill, L. R. 18 Eq. 182 ; Reports, 761. Duncan v. Hill, L. R. 6 Ex. 255 ; 8 Ex. (») Perry v. JSameit, 15 Q. B. D. 242. 388 ; Colet v. Sristoioe, L. R. 4 Ch. 3 ; [q) Belts v. Gilhim, 2 A. & E. 57 ; and compare Pearson v. Scott, 9 Ch. D. Dugdale v. Lowering, L. R. 10 G. P. 198. 196 ; Collins v. Evans, per Tindal, C. J., (o) Robinson v. Mollett, L. R. 7 H. L. 5 Q. B. at p. 830 ; Dixon v. Stansfield, 802 ; Neilsm v. Jamas, 9 Q. B. D. 646 ; 10 C. B. 394 ; In re Famous, 3 Ch. D. Perry v. Bamett, 15 Q. B. D. 388; 795; Pavy's Patent Felted Fabric Co., 1 Zacey v. Hill {Crowley's claim), L. E. Ch. D. 631. 18 Eq. 182 ; Laoey v. Hill {Scrimyeour' s 136 MERCANTILE PERSONS. Riffhts of As far as the agent's authority extends, he has a right to hind ^^Bt^^! tis principal to third persons. Now his authority may, as we "'P"^- have seen, be either expressly given or inferred from the acts of his supposed principal. When it is expressly given there can he no douht as to its extent, except from the uncertainty of words employed in delegating it (r), or as to the implied powers intended to accompany those expressly given (s). "When, how- ever, it is to be inferred from the conduct of the principal, that conduct furnishes the only evidence of its extent as well as of its existence ; and, in solving all questions on this subject, the general rule is, that the extent of the agent's authority is (as be- ticeen his principal and third parties) to be measured by the extent of his usual employment ; for he who accredits another by em- ploying him, must abide by the effects of that credit, and will be bound by contracts made with innocent third persons in the seeming course of that employment, and on the faith of that credit, whether the employer intended to authorise them or not (t). Since, where one of two innocent persons must suffer by the fraud of a third, he who enabled that third person to commit the fraud should be the sufferer (u). On this principle it is, as we have seen in the first chapter, that one partner can bind another to contracts within the scope of the partnership business. The same principle is well illustrated by Salt, C. J. (x), who says, " If a man send his servant with ready money to buy goods, and the servant buy upon credit, the master is not chargeable. But if the servant usually buy for the master upon tick, and the servant buy some things without the master's order. (»■) See Msdaile v. La Nauze, 1 Y. & ita etiam obligari nos ex oontractibus C. 394. ipsoram : Dig. lib. 14, tit. 3. Qui non («) See Pole y. Leash, 29 L. J. Ch. prohibet pro se intervenire mandare 888. oreditur: Dig. lib. 50, tit. 17. The (<) See Fickering v. Busk, 15 East, modem authorities usually put the 38 (as explained in Johnson v. Credit liability on the ground of estoppel in Lj/onnais, L. R. 3 0. P. D. 32) ; Smithy. pais. M'Guire, 3 H. & N. 654 ; Dingle v. [x) Shower, 95 ; Waylemd's ease, 3 Sare, 7 0. B. N. S. 145 ; Edmunds v. Salk. 234 ; Susby v. Scarlett, 5 Esp. Sushell,!!. E. 1 Q. B. 97; Miles v. 76; a,-ni£t/les, J., inSotvardv. Stewart, McHwraith, 8 App. Ca. 120. L. R. 2 C. P. at p. 152. See, too, {«) iEquum prsetori -visum est siout Fickard v. Sears, 6 A. & E. at p. 474. oommoda sentimus ex aotu institorum, PRINCIPAL AND AGENT. 137 yet, if the master were trusted by the trader, the master is Rights of chargeable." The same principle is applied to cases respecting against prin- notes or bills, which, if drawn, endorsed, or accepted by a clerk °'P"" who has been previously allowed to do so, bind the master, though the money never come to his use (y). It is applied to sales (z), guarantees (a), and insurances (b); in a word, to every species of mercantile transaction, and whether the agent have or have not been dismissed from his employer's service, pro- vided that the third party had no reason to be aware of the determination of his employment (c). Nor can the principal relieve himself by agreeing with his agent that the latter shall take the liability on his own shoulders, for strangers not cogni- zant of such an agreement are not bound by ii{d). The nature of the authority to be inferred, and the sufficiency of the principal's acts to raise the inference, must of course depend on the special circumstances of each case, and generally involve questions fit for the consideration of a jury (e). There is one instance in which the recognition of a single pur- chase made by his servant upon credit was held to bind the piinoipal to a succeeding one (/). However, as the employment is the measure of the authority to be inferred, if there were no previous employment, there can of course be no inference of authority. In such a case, the party who trusts a servant does it at his peril, since the master will only be liable for what (y) J^eseott V. Minn, 9 Bing. 19 ; (e) See Dyer v. Fearson, 3 B. & C. SoultonY.Arlesden, 3 Sa'lk.23i; Barber 38; Sazard r. Treada-ell, 1 Str. 506; V. Gingell, 3 Esp. 60; Haughton v. Todd v. EoUnaon, \ Ey. & Moo. 217; JEwiank, 4 Camp. 88 ; see v. Sar- Oilman v. Robinson, ib. 226 ; Boultan rison, 12 Mod. 346 ; MoUoy, 107. v. Arksden, 3 Salk. 234 ; Anderson v. («) Pickering v. Busk, ubi sup. ; Anderson, 2 Stark. 204 ; Stubbing v. Tmeman v. Zoder, 11 A. & E. 589; Seintz, Feake, 47; Wat/land's case, 3 J)ingle v. Hare, 7 C. B. N. S. 146. Salk. 234 ; Busb}/ v. Scarlett, 5 Esp. («) Watkim v. Vince, 2 Stark. 368. 76 ; see Smith v. Topping, 5 B. & Ad. (4) 1 Amoiild, 170. 674; Davidson v. Stanley, 2 M. & G. (c) Trueman v. Loder, 11 A. & E. 721 ; Beynell v. Lewis, 16 M. & W. 591 ; JVicAsoM V. 5roA, 10 Mod. at p. 617; Bailey v. Macauley, 13 Q. B. Ill; V. Biwrwon, supra ; Molloy, 815; Hogarth v. Wherley, L. R. 10 107, 282 ; Summers v. Solomon, 26 C. P. 630. L. J. Q. B. 301. (/) Hazard v. Treadwell, 1 Str. 506 ; (rf) iVeotoiM V. Abel, 1 Esp. 360 ; Morrison v. Statter, 12 So. Sees. Cas. Bich V. Coe, Cowp. 636; Waring v. 4th series, 1162. Favenck, 1 Camp. 85. 138 MERCANTILE PERSONS. Bights of comes to his use ; and not even for that, if he gave his servant third persons , « . . / \ against prin- money to pay for it (gr). "^P"^^' As the employment is the measure of the authority, an em- ployment in one line of business affords no inference of autho- rity to act in another {h) ; and the authority must he inferred from facts which have occurred during the course of such employment, not from mere argument as to the utihty or pro- priety of the agent's possessing it (i). Thus, though a clerk or apprentice may have an implied authority to receive money for his master in the course of husuiess, that will give him no authority to receive it in collateral transactions {k), or out of the ordinary course of business {I). And thus, also, though a master of a ship, in case of necessity, when the owner is not present and cannot be communicated with, or he has not in the port any agent (m), has an implied authority to borrow money for the purposes of the ship, and may therefore biad his owner by con- tracting a loan for those purposes, yet if he borrow money on his own account, and afterwards apply it to the purposes of the ship, that is no exercise of his authority, and his master is not bound to repay that money («). It follows from the above observations that an agent may he tied down by very strict directions as between himself and prin- cipal, whom he may, notwithstanding, have power to bind by contracts, unauthorised by, and even in defiance of, them (o). Cases of this sort occur when a general agent, as he is called, exceeds his instructions. A general agent is a person whom a man puts in his place to transact all his business of a particular kind {p). Thus, a man usually retains a factor to buy^and seU ig) See Paley, P. & A. 164 ; Bolton Cas. 270. V. milcraden, 1 Ld. Eaym. 224 ; Kil- {m) Arthur v. Barton, 6 M. & W. gour V. Finlyson, I H. Bl. 155. 138 ; Chmn v. Soherts, L. R. 9 C. P. {h) See Boucher v. Zawson, Eep. 331. temp. Hardwioke, 85. («) Thaeher v. Moates, X'UL.k Bob. («) Sawtayne v. Bourne, 7 M. & "W. 79 ; Beldort v. Campbell, 6 Bxch. 886 ; 598. Gunn v. BoteHs, L. E. 9 0. P. 331. {Jc) Sanderson v. Bell, 2 0. & M. 304. (o) Edmunds v. Bushell, L. R. 1 Q. B. (f) Kaye v. Brett, 6 Exoh. 269. As 97; National Bolivian Co. v. WiUoH, see to a hank manager not being autho- infra, p. 139, note [x). rised to direct a prosecution, see Bank {p) This distinction has been criti- of New South Wales v. Owstoi,, 4 App. cised : see per Bra,mHll, B., in Baines PKINCIPAL AND AGENT. 139 all goods, and a broker to negotiate all contracts of a certain Eights of description, a solicitor to transact all his legal business, a against prin- mmter to perform all things relating to the usual employment "^p^^" of his ship (»•), and so in other instances. This distinction was illustrated in the case of Brew v. JVmww («). The defendant had held out his wife as his agent, and as entitled to pledge his credit. The defendant became insane ; while he was in that condition his wife ordered goods from the plaintiff, who supplied them without knowledge of the defendant's insanity. On re- covering his reason, the plaintiff refused to pay for the goods. He was held liable, on the ground that he could not withdraw his authority as to third persons without giving them notice. The authority of an agent to perform all things usual (i) in the line of business in which he is employed, cannot be limited by any private order or direction not known to the party dealing with him (««). " Where an agent," says Lord Blackburn, " is clothed with osten- sible authority, no private instructions prevent his acts within the scope of that authority from binding his principal. Where Ms authority depends, and is known to those who deal with the agent to depend, on a written mandate, it may be necessary to produce or account for the non-production of that writing, in order to prove what was the scope of the agent's authority" {x). v.^!o;«^,4H. & 0.611, atpp. 516,517; slen, L. E. 1 A. & E. 293; Frost v. Wlarton on Agency, B. 122; iHareft Oliver, 1 El. & Bl. 301; The Great Wallaoe's Leading Cases, 678 ; Evans Eastern, L. R. 2 Ad. 88 ; Zloj/d v. on Agency, 2nd ed. 118; Dioey's Par- Guibert, 6 B. & S. 100. As to its ties to an Action, 244. It would pro- origin, see per Parke, B., post, p. 143, bably be accurate to say that a general and Brett, M. E., in The Fontida, 51 agent is one generally or usually L. T. 849, at p. 850. employed to do certain things, few or (s) 4 Q. B. D. 661. many; while a special agent is only [t) Grant -7. Norway, 10 C. B. 665. specifically authorised to act in regard (a) Whitehead v. Tuekett, 15 East, to certain matters, whether many or 400 ; Soward v. Sheward, L. E. 2 C. few. P. 148. See JBaines v. Fwing, L. R. 1 {)•) The authority of a master is very Ex. 320, as to those dealing with an extensive : see Einquist v. Ditchell, agent being affected with notice of Abb. 12th ed. p. 88 ; 3 Esp. 64 ; Ellis limitation of authority by virtue of a V. Turner, 8 T. E. 631 ; Abb. 12th ed. custom. p. 87 ; and per cur. Grant v. Norway, (x) National Bolivian Navigation Co. 10 C. B. 663, at p. 687 ; Alexander v. v. Wilson, 5 App. Gas. 176, at p. 209 ; Sou'ie,! H. & N. 152; The Soblom- and Brett, L. J., in Chapleo v. Brims- 140 MEECANTILE PERSONS. Eights of The rule is directly the reverse conceraiing a particular agent, againBt^rin- *-^-) ^^ agent employed specially ia one single transaction; for "'P^- it is the duty of the party dealing with such a one to ascertain the extent of his authority ; and if he do not he must abide the consequences (y). We have seen that a subsequent assent by the principal to his agent's conduct exonerates the latter from the consequences of a departure from his orders. In like manner, it -will render the principal liable for contracts made in violation of such orders, or even without any previous retainer or employment, for omnk ratihabitio retrotrahifur et mandato cequiparatur (z). Such an assent may be inferred from the conduct of the principal (a), who cannot confirm a transaction in part and repudiate it as to the rest, but must either adopt all or none (6). The general rule is, that the authority, of whatever descrip- tion, must be strictly observed, otherwise the principal, if his agent be a particular one, will not be bound. And if he be a general agent, will not be bound, save under the circumstances above described; and not under any circumstances whatever, if the third party, at the time of his contracting was, or ought to have been, aware of the limited extent of the agent's authority, which was formerly construed by the Courts with a great deal of strictness (c). Thus, rE given to two, it cannot be executed by one, though the other should die or refuse ; and if given to wick SuiUing Society, 6 Q. B. D. 696, Sodson, 4 T. E. 211 ; Hmil v. Pack, at p. 715. 7 East, 164. But see note (e) and (y) Fenn v. Harrison, i T. R. 177 ; infra. Brady v. Todd, 9 C. B. N. S. 592 ; (c) Gardner v. Saillie, 6 T. R. 591 ; £rle, C, J., in Sickens v. Irving, 7 Tobin v. Crawford, 6 M. & W. 235 ; C. B. N. S. 166, at p. 174; Smith v. Acey'y. Fernie, 7 M. & W. 151 ; Co. MoGfuire, 3 H. & N. 554, at p. 562. Litt. 258 b. It is said, that if am (a) Ward\. Fvans, Salk. 442; Comb. agent do more than he is authorised, 450 ; Ld. Bajm. 930 ; Maclean v. the act is bad for the excess only, Dunn, 4 Bing. 722 ; Henderson v. provided that oan be distinguished ; Sameivall, 1 Y. & J. 387 ; Fenn v. if 'he do less, bad altogether, except Harrison, 3 T. E. 757 ; 4 T. E. 177 ; in oases where his authority is coupled Coles V. TVecothiek, 9 Ves. 234, at pp. with an interest : see Co. Litt. 258 h ; 251,252; see infra. Alexander v. Alexander, 2 Ves. sen. (a) Thoroldy. Smith, 11 Mod. 88. 640", at p. 644; Saines v. Ewing, L. (i) Wilson V. Foulter, 2 Str. 859 ; E. 1 Ex. 320. But see ante, p. 128. Billon V. Hyde, 1 Atk. 128 ; Smith v. I'UINCIPAL AND AGENT. 141 three jointly and severally, it cannot be executed by two, Eights of though it may either by aU three or by one only (d). This rule aglList^rin^ does not apply to public agencies ; and even in regard to agencies '^^^^' of a private nature, the Courts are now disposed to relax from the technical precision of ancient times in construing these and the like words, and will search the whole instrument for the maker's intention (e). But where that is once ascertained, they wiU confine the agent to it with the utmost strictness (/). At the same time, the Courts are so far liberal in construing authorities given to agents, that they will hold them to include permission to use all necessary, or even ixsual, means of carry- ing the main intention of the principal into effect in the best manner {g). Thus, an agent employed to get a bill discounted may, perhaps, unless expressly restricted, endorse it iq the name of his employer (h). A broker employed to effect a policy of insurance may adjust the loss, and do all that is requisite towards such adjustment (»') : an agent to receive rents and let, has power to determine the tenancy (k) : an agent em- ployed to issue process may receive the debt and costs (l) : {d) Co. Litt. 112 b, 181 b ; 1 Roll. v. Ditchell, 3 Ksp. 65. See Micks v. Abr. 329; 1 Anders. 146; Brown v. Hankin, 4 Esp. 114; Whitehead v. Andrew, 18 L. J. Q. B. 153. Tuckett, 16 East, 400 ; Ellis v. Turner, («) Outhriev. Armstrong, 5'B.&Aiei. 8 T. K. 531; Lord v. Sail, 8 C. B. 628 ; Denysaen v. Botha, 13 Moo. P. C. 627 ; Perry v. Holl, 2 De G. E. & J. Ca. 352. 38 ; Webber -7. Granville, 30 L. J. 0. P. (/) Barron t. Fitzgerald, 6 Bing. 92 ; Edmimds v. Bushell, 1 Q. B. D. N. 0. 201, where an authority to i61 ; Johnston y. Xershaw,!!.^,. 2'Ex.. Barron and Stewart to effect an in- 82 ; Irelandv. Livingston, L. E. 2 Q. B. surance in their own two names was 99 ; 5 Q. B. 616 ; 6 H. L. 395. But held not to warrant the effecting one see above, Robinson v. Mollett, L. E. 7 in the names of Barron, Stewart, and H. L. 802 ; and Ferry v. Barnett, 14 Smith, whom they had taken into Q. B. D. 467,~as to the qualifications partnership ; Attwood v. Mwmings, 7 to the agent's power. B. & C. 278 ; Sogg t. Snaith, 1 Taunt. (A) Fmn t. Sarrison, 3 T. E. 767 ; 4 347 ; Murray v. E. I. Co., 5 B. & A. T. R. 177. See Davidson v. 204 ; Esdaile v. La Name, 1 T. & 0. 2 M. & G. 721. 394 ; Feam t. Filica, 7 M. & G-. 613. (») Sichardson v. Anderson, 1 Camp. {g) Sichardson v. Anderson, 1 Camp.- 43, n. ; Sweeting v. Fearee, 7 C. B. N. S. 43, u. ; Goodton v. Brooke, 4 Camp. 163 ; 449. Withington v. Serritig, 5 Bing. 442 ; {k) Doe d. Manvers v. Mizen, 2 M. & Ducarrey v. Gill, M. & M. 450 ; Alex- Bob. 56. ~ ■ ander t. Gibson, 2 Camp. 566, et notis ; (l) Weary v. Alderson, 2 M.. k Eob. Selyearr. Eawke, 5 Esp. 72 ; Btmquist 127. 142 MERCANTILE PERSONS. Eights of an agent entrusted with the possession of goods for the purpose again^t^^- of selling, is authorised to sell them in his own name {m) : and, , it is said, a warranty given by an agent entrusted to sell prima facie binds the principal (»). A master who sends his servant to buy goods, and gives him no money to pay, doubtless authorises him to pledge his credit (o). On the other hand, an authority to "negotiate, make sale, dispose of, assign and transfer" securities, does not imply authority to pledge (^;). Nor does authority to pay, receive, or to draw cheques import authority to endorse (q). But eiridence of such authority to draw is not to be withheld from the jury, who are to determine whether such authority to endorse exists or not, and who may justly be satisfied with less evidence thereof when it is proved that the clerk is a confidential clerk, and has undisputed autho- rity to draw in the name of his principal (r). If the agent indorses by procuration, the principal is only bound if the agent was acting within the actual limits of his authority (s). Though the agent has an implied authority to use those means of which the principal could not but have foreseen the necessity, and, therefore, could not but have intended to authorise, yet if an unusual contingency arise,- it does not follow that the agent will have power, however useful it might be, to do that which would enable him to meet the contingency ia the best manner. Thus, it was decided in Saivtayne v. Bourne {t), that {mj :Ex parte Dixon, i Gh. D. IZZ,. , s. 25. («) Dinffle r. Sure, 7 C. B. N. S. (t) 7 M. & W. 595. See Sinclair, \ib;Moward-v.Shewarcl,'li^'R.'2,C.'B. Moorhead^ f Co. v. Wallace, 7 SiJ. 148, are quoted as authorities for this. Sess. CaSi, 4th series, 874, -where But see Brady v. ToM, 9 C. B. N. S. an agent empowered to carry on the 592 ; and Brooks v. Sasmll, 49 L. T. business of the principals in another 569. town, and with written authority to (o) Per Tirtdal, L. C. J., delivering draw, accept, indorse, and discharge judgment of Ex. Ch. in Tobin v. Craw- bills, promissory notes, &o., bcarowed ford, 9 M. & "W. 716, at p. 718. money, on the representation that it [p) Jennenjoy Coondoo v. Watson, 9 was for use in the principals' business, App. Oas. 561. by accepting a bill for them. The (q) Davidson t. Stanley, 2 M. & G. Court of Session held that, in the '21. absence of an express power of bor- ()■) Prescott V. Flinn, 9 Bing. 19, rowing, the principals were not at p. 22 ; vide Smith v. Topping, 5 B. chargeable. The Court did not & Ad. 674. advert to the fact that the agent signed (s) Bills of Exchange Act, 1882, "per pro." PRINCIPAL AND AGENT. 143 there is no implied authority in an agent conducting the Rights of general business of a mine to borrow money in case of againS^pS- neoessity. °'P°'^- "No such power," said Parke, B., "exists, except in the eases of the master of a ship, and of the acceptor of a bill of exchange for the honour of the drawer (w). The latter derives its existence from the law of merchants, and in the former case, the law, which gene- rally provides for ordinary events, and not for cases which are of rare occurrence, considers how hkely and frequent are accidents at sea, when it may be necessary, in order to have the vessel repaired, or to provide the means of continuing the voyage, to pledge the credit of her owners ; and therefore it is that the law invests the master with power to raise money, and, by an instrument of hypo- thecation, to pledge the ship itself, if necessary. If that case be analogous to this, it follows that the agent had power, not only to borrow money, but, in the event of security being required, to mortgage the mine itself. The authority of the. master of a ship rests upon the pecuUar character of his office, and afiords no analogy to the case of an ordinary agent. I am therefore of opinion that the agent of this mine had not the authority contended for." Such being the general rules concerning an agent's power, let us now consider, a little more particularly, what course he must pursue, in order to bind his principal by two or three of the most usual species of engagements. In executing a deed, he may either sign the name of his principal {x), or state it to be done by himself as agent for his principal (y), or by his principal through him the agent (z). But if he sign his own name without mentioning his principal, the latter will not be bound («). In like manner an agent employed to draw, endorse or accept negotiable instruments, must take («) There is a third case : the right [y) 9 Co. 77 ; Parker v. Kett, Salk. of a wife deserted by her husband, or 95. compelled by his conduct to live apart (2) Wilks v. Bach, 2 East, 142, per from him, to pledge his credit for Grose, J. nsoeaaaxies: Debenhamv. Mellon, 6 App. (a) 9 Co. 76, 77; D' Abridgcowrt v. Oa. 24, at p. 31. AshUy, Moore, 818, pi. 1106; Lord {x) 9 Co. 76b; Moore, 70, pi. 191 ; Southampton v. Brown, 6 B. & C. 718; Frontin v. Small, Str. 70S ; Wilks v. Pickering's Claim, 6 Ch. 625. Back, 2 East, 142. 144 MERCANTILE PERSONS. Bights of third persons against prin- cipal. care not to do so in his own name, for if he do, he -will himself be liable to the hold^ {b). As to the agent's power to bind the principal by a disposition of his goods, the common law rule was, as may be collected from the foregoing observations, that to acquire a good title to the employer's property by purchasing it from his agent, such pur- chase must have been in market overt (c) and without know- ledge of the seller's representative capacity, or from an agent acting according to his instructions, or from one acting in the usual course of his employment, and whom the buyer did not know to be transgressing his instructions {d) . The reason of this is clear, unless the transaction take place bond fide ia a market overt (in which case a peculiar rule of law steps in for its protection (e)), an agent selling without express authority must, that his act might be supported, have sold under an implied one. But we have seen that an implied authority always empowers the person authorised to act in the usual course of his employment. Consequently, if he sell in an unusual mode, he can have no implied authority to support his act ; and as he has no express one, his sale of course falls to the ground. For instance, the usual employment of a factor being to sell, it has been repeatedly decided that he cannot pledge the goods en- trusted to him (/) ; and at common law this was the case whether he was intrusted with the goods or the documents of title {g). (J) As to the personal liability of persons signing a note, &o., "directors of a company," Dutton v. Marsh, L. E. 6 Q. B. 361 ; Alexander v. Siier, L. B,. 4 Ex. 102 (note signed as "secretary"); Atkin v. Wardle, 61 L. T. N. S. 23. (e) Crnidy v. Lindaay, 3 App. Ca. 469. (i) Vide Anon., 12 Mod. 514; Wilt- shire V. Sims, 1 Camp. 258 ; Newsom v. Thornton, 6 East, 17 ; M'Combie v. Dailies, 6 East, 538 ; Be Bouchout v. Ooldsmid, 5 Ves. 211 ; Bank of Bengal V. Maeleod, 7 Moore, P. C. Ca. 36. See per Willes, J., in Fuentes v. Montis, L. E. 3 C. P. 268, at p. 277. («) See Book 3, Chap. " Contracts of Sale." {/) City Bank v. Barrow, 5 App. Cas. 664 ; Johnson v. Credit Lymnais, 2 C. P. D. 224 ; Paterson y. Tosh, Str. 1178 ; and Allen v. St. Louis Sank, 13 Davis (U. S. Supreme Conrt), 20. See the law admirably explained per Willes, J., in Fuentes v. Montis, L. R. 3 C. P. 268, at pp. 277 et seq. {0) Suppose that the factor is also a partner ia a business, and that he pledges goods belonging to the part- nership to secure the payment of his own debts to one who knew him only as a partner, would the pledge be valid? Apparently not: Allen v. St. Louis Bank (U. S. Supreme Court), 13 Bavis, 20. PRINCIPAL AND AGENT. 145 Such was the rule of the commoii law ; hut, heing considered Rights of prejudicial to credit hy the greater numher of mercantile men, againft^prin- it was altered hy 4 Geo. 4, c. 83, and afterwards hy the amend- °'P^^- ing Acts, 6 Geo. 4, c. 94, 5 & 6 Yict. c. 39, and 40 & 41 Vict. c. 39 (A). These statutes have heen repealed, and the present law is contained in the Factors Act, 1889 (52 & 53 Yict. c. 45). This Act deals with three suhjects — " (a) dispositions (i) hy mercantile agents," " (b) advances hy consignees and their liens," and " (c) dispositions hy sellers and huyers of goods." " Mercantile agent " (k) is thus defined : " The expression mercantile agent shall mean a mercantile agent having, in the customary course of his business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods." This is in accordance with the definition of "agent" and " person" in the former Acts ; hut the new Act expressly in- cludes a mercantile agent authorized " to raise money on the security of goods." "Document of title" is defined as including "any hill of lading, dock warrant, warehouse keeper's certificate, and war- rant or order for the delivery of goods, and any other document used in the ordinary course of business, as proof of the posses- sion or control of goods, or authorizing or purporting to authorize, (A) Sect. 2 of 4 Geo. 4, o. 83, is still at p. 368— "The Legislature meant unrepealed. by the word ' agent ' only such agents (t) A disposition must be something as in the usual course of business sell in the nature of a sale : Taylor v. goods for their principals and receive Kymer, 3 B. & Ad. 320, at p. 337 ; payments, such as factors, brokers (?), Taylor v. Trueman, M. & M. 453. &c., and did not mean to include (Jc) As to the meaning of " agent" bailees, warehousemen, carriers, and and " person" in the former Acts, see others, who may in one sense no doubt Jenhyns v. JTabome, 7 M. & G. 678j be called agents, but who do not sell or p. 701 ; Van Casieel v. Booker, 2 Ex. receive payment for goods intrusted to 703, 704 ; Kingsford v. Merry, 1 H. & them by those employing them.' ' See N. 516 ; Namilshaw y. £rovmrigg, 1 Monk v. Whittenbury, 2 B. & Ad. 484 Sim. N. S. 673 ; 2 D. Mac. & G-. 441 ; (wharfinger not an " agent ") ; Baines Lamb v. Attenborough, 1 B. & S. 831 ; v. Swainson, 4 B. & S. 270 ; and Sol- Seyman v. Flewker, 13 0. B. N. S. ?%« v. JJ«Jse??, 33 L. T. N. S. 380. The 619; City Ba/nkir. Barrow, hA.'gT^.Oaa. two last cases are with difficulty recon- p. 678. In Cole v. North Western Bank, oilable. L. R. 10 C. P., Blackburn, J., says, S. — VOL. I. L 146 MERCANTILE PERSONS. Eights of either by indorsement or by delivery, tke possessor of the doou- agaiiXpri^! ment to transfer or receive goods thereby represented." This "'P^^- definition is borrowed from sect. 4 of 5 & 6 Yict. c. 39. (a) Section 2 enacts, — " (1;) Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge, or other disposition of the goods, made by him {k) when acting in the ordinary course of busiaess of a mercantile agent, shall, subject to the provisions of this Act, be as vahd as if he were expressly authorized by the owner of the goods to make the same ; provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice (Z) that the person mating the disposition has not authority to make the same. " (2.) Where a mercantile agent has, with the consent of the owner, been in possession of goods or of the documents of title to goods, any sale, pledge, or other disposition, which woidd have been vaHd if the consent had continued, shall be valid notwith- standing the determination of the consent : provided that the person taking under the disposition has not at the time thereof notice that the consent has been determined. " (3.) Where a mercantile agent has obtained possession of any documents of title to goods by reason of his being or having been, with the consent of the owner, in possession of the goods repre- sented thereby, or of any other documents of title to the goods, his possession of the first-mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner. " (4.) For the purposes of this Act the consent of the owner shall be presumed in the absence of evidence to the contrary." Sub-section 2, •which repeals the substance of 40 & 41 Vict. c. 39, s. 2, is intended to alter the law as laid down in Fuentes V. Montis {m), where an agent who had been entrusted with goods for sale, but who had been deprived of his authority by his principal, was held not to be intrusted within the meaning [k) Or througli "a clerk or other 10, ubi perLord r««*c>-(fo»; IffMulshmi person authorized in the ordinary v. Brownrigg, 1 Sim. N. S. 573 ; 2 D. course of business to make contracts Mac. & Gr. 441 ; Chunder Sein v. iJy«», of sale or pledge on his behalf " : S L. T. N. S. 659, P. G. ; 9 Moo. Sect. 6. App. 140 ; and Mildred t. Maspons, {1} On the question, what is Notice, 8 App. Gas. 874, at pp. 885 and 888. vide Hvans v. Tniemnn, 1 M. & Rob. (>») L. R. 3 0. P. 208 ; 4 C. P. 93. PKINCIPAL AND AGENT. 147 of the Factors Acts. Sub-section 3 repeats the effect of 5 & 6 Eights of Yict. 0. 39, s. 4, which altered the law as laid down in Phillips againFt^prin- V. Euth (»), and Hatfield v. Phillips (o). "P^^- To the power of the mercantile agent to sell or pledge, two qualifications, also derived from the former Acts, are ap- pended. A pledgee to whom goods have been pledged as secu- rity for a debt or liability due before the time of the pledge {p), acquires no further right to the goods than could have been enforced by the pledgor at the time of the pledge {q) ; and if the consideration for the pledge is the delivery or transfer of other goods, documents of title, or negotiable securities, the pledgee acquires no right or interest in the goods pledged in excess of the value of the goods, documents or securities delivered or transferred (g'g'). (b) Section 7 (1), protects advances by consignees to con- signors, provided the consignee has not had notice that the latter is not the owner, and enables the consignee to transfer his lien (r). (c) Sections 8, 9, and 10, which re-enact sections, 3, 4, and 6 of the Factors Act, 1877, relate to dispositions by sellers and buyers of goods. Section 8 alters the law as laid down in Johnson v. Cridit Lyonnais («). A merchant and broker sold to the plaintiff tobacco, which was in bond in the warehouses of St. Katharine's Dock Company. The merchant had received the dock warrant, and was entered as owner in the company's books. The plain- tiff, not then wishing possession of the tobacco, left it in the merchant's name, and the dock warrants in his hands. The merchant fraudulently pledged the documents with the de- fendants. The defendants were not, it was held, protected by (») 6 M. & W. S72. agent's interest in the thing pledged (o) 9 M. & "W. 647. be liahle to be defeated by the per- (i>) As to what fell within the words formance of a condition, so will the "antecedent debt," in 6 & 6 Vict. c. pledgee's: Slandy T. Allan, Dans. & 39, 8. 3, see Jewan v. Whitworth, L. E. Lloyd, 22 ; Fletcher v. Seaih, 7 B. & 2 Eq. 692 ; Macnee v. Gorst, L. E. 4 C. 517. Eq. 316 ; Kalteniach t. Lewis, 10 App. {gg) Sect. 6. Cas. 617 ; Learoyd, v. RoUmm, 12 M. & {r) See 4 Geo. 4, o. 83, s. 2 ; and W. 746. 6 Geo. 4, o. 94, s. 1. (?) Sect. 4. And therefore if the (s) 3 0. P. D. 32. i2 14S MERCANTILE PERSONS. Eights of the Factors Acts ; the merchant not being an agent entrusted third persons .,■,■, ^ j> x-j.i against prin- With documents 01 title. "'P^^- Section 8 enacts— " Where a person, having sold goods, continues, or is, iq posses- sion of the goods or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same." It was decided, in Jenhyns v. Ushorne (g), and in Van Casteel V. Booker (k), that a purchaser, obtaining possession of doeimients of title to goods, was not an "agent entrusted" within the meaning of the Factors Act. By section 9, which reproduces section 4 of the Factors Act, 1877, it is enacted, — " Where a person, having bought or agreed to buy goods, obtains with the consent of the seller possession of the goods or the docu- ments of title to the goods, the delivery or transfer, by that person or by a mercantile agent acting for him, of the goods or docu- ments of title, under any sale, pledge^ or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shaU have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.'' Section 10 professes to extend to all documents of title the effect which the transfer of a bill of lading has in defeating the vendor's right of stoppage in transitu, but it is not clear what cases, other than those included in section 9, it includes. When an agent, having a proper authority, purchases or sells in the name of his principal, it is clear, from what has been said that the principal is bound to the vendor or purchaser. If, how- is) 7 M. & G. 678. (A) 2 Ex. 691. PRINCIPAL AND AGENT. 149 ever, the vendor, preferring the credit of the agent to that of Rights of the principal, agree with the former to accept him as his dehtor againft^^n! instead of the latter, he cannot afterwards alter his election, and '"P"'^' turn round and charge the principal (i). But it often happens that a broker purchases in his own name, without disclosing that he has any principal. Where this takes place, the broker is, of course, the person to whom the vendor gives credit ; yet, if he afterwards discover the principal, he may elect to abandon the responsibility of his broker, and charge him {k) ; and so he may if the broker, on making the purchase, stated himself to be an agent, but omitted to state the name of the principal, which is afterwards discovered (l), or if the broker purchases in his own name, but discloses the name of his principal {m). The liability of the undisclosed principal is subject, how- ever, to a qualification, the rule as to which, as. laid down by Bayley, J., in Thompson v. Davenport (») , was, that if the principal has paid the agent, or if the state of the accounts between the agent and the principal would make it imjust that the seller should call on the principal, the fact of payment, or such a state of accounts, would be an answer to the action by the seller, where he had looked to the responsibility of the agent. In Heald v. Kenworthy (o) this rule was somewhat narrowed, and was thus expressed by Parke, B. : — " If the conduct of the seller would make it unjust for him to call upon the buyer for the money ; as, for example, where the prin- cipal is induced by the conduct of the seller to pay his ^.gent the money, on the faith that the agent and seller have come to a settle- ment on the matter, or if any representation to that effect is made (f) Paterson v. Gandmeqm, IS East, name, the name becomes for the pur- 62 ; Addison v. Oandaaequi, 4 Taunt. poses of the contract his own : Trueman 674 ; 2 Sm. L. C. 9th ed., pp. 378, v. Loder, II A. & E. 589, at p. 594 ; 387 ; WiUon v. Zulueta, 14 Q. B. 405 ; Calder v. Dobell, L. E. 6 C. P. 486. V. Anderson, 7 0. B. 21. (I) Thompson v. Davenport, 9 B. & (A) Mailton v. Sodgson, 4 Taunt. C. 78 ; 2 Sm. L. C. 9th ed. 395 ; 576, 11. ; Wihon v. Bart, 7 Taunt. Smethurat v. Mitchell, I E. & E. 622. 295. The law of evidence opposes no (m) Calder v. Dobell, ubi sup. obstacle to the exercise of this election, (») 9 B. & C. 78, at pp. 88, 89, per even where the contract is ia writing ; Sayley, J. for if the principal allow the agent to (o) 10 Ex. 739, at p. 746. contract for him in his (the agent's) 150 MERCANTILE PERSONS. Eights of fcy the seller, either hy words or conduct, the seller cannot after- third persons -vsrards throw ofE the mask and sue the principal." ' "-'''■ against prin- ^?ij In Irvine v. Watson (q) — a case of a person knowing that he was dealing with an agent, but not knowing the priaoipal's name — Bowen, J., thus stated the law : — " It surely must, at all events, he the law that in the case of sale of goods to a hroker, the principal, known or unknown, cannot, by paying or settling hefore the time of payment comes with his own agent, reheve himself from responsibility to the seller, except in the one case where exclusive credit was given by the seller to the agent. But may the payment or settlement to or with the agent be safely made in such a case after the day of payment has arrived, and, if so, within what time ? It seems to me that it can only safely be made if a delay has intervened which may reasonably lead the principal to infer that the seller no longer requires to look to the principal's credit, such a delay, for example, as leads to the infereiice that the debt is paid by the agent, or to the inference that, though the debt is not paid, the seller elects to abandon his recourse to the principal and to look to the agent alone." The judgment of Bowen, J., was aflSrmed by the Court of Appeal (Bramwell, L. J., Baggallai/,Jj.J., and Brett, L.J.), who approved and adopted the statement of the law by Parke, B., in Eealdv. Kenworthy{r). And the same view was adopted in Davison v. Donaldson (s). In the recent case of Cooke v. Eshelby {t), it was held by the House of Lords that the purchaser of cotton sold to him by agents in their own names, but in fact on behalf of an undis- closed .pijnoipal (the purchaser knowing that the agents were in the habit of selling both for principals and on their own account, but having no belief as to whether the sale in question was on their own account or for principals), could not, in an action by the undisclosed principal for the price, set off a debt due to him by the agents. According to Lord Watson {u), — " It must be shown that he (the agent) sold the goods as his own, (?) (1879) 5 Q. B. D. 102, at p. 107 ; seutation " : per Sowen, L. J., ib. at affirmed, ib. 414. p. 631. (r) 10 Ex. 739, at p. 746. [t] 12 App. Cas. 271 (1887). («) 9 Q. B. D. 623. '^ I do not say («) Cooke v. Eshelb}/, 12 App. Gas. that in very special circumstanoes mere at p. 278. delay may not amount to misrepre- PKINCIPAL AND AGENT. 151 or, in other words, that the circumstances attending the sale were Rights of calculated to induce, and did induce, in the mind of the pur- tli"'.■) I^tfott V. Sirtlea, 1 M. & W. 441 (») Sutchinsy. Chambers, 1 Burr. 679 («) Climie v. Wood, L. K. 3 Ex, 257 ; L. E. 4 Ei. 328. (u) See Eheea v. Maw, 3 East, 38 edit. ; Foole's case, 1 Salk. 368 6 Exoh. at p. 312 ; Wahmley v. Milne, 7 C. B. N. S. 115. And see 14 & 15 Vict. >;. 25, B. 3, and 46 & 47 Vict, u. 61, ss. 44—52. See also BiUs of Sale Act, 41 & 42 Vict. c. 31, s. 4 ; 2 Smith's Leading Cases, 182, 9th Bills of Sale Act, 45 & 46 Vict. c. 43, 8. 6 (2), as to mortgages or assign- Lttwton y. Lawton, 3 Atk. 13 ; Laioton ments passing fixtures. y. Salmon, 1 E. Bl. 259 a ; ' Penton [x) Zaivton y. Zawion, supra ; Climie y. Soiart, 2 East, 88 ; Dean y. y. Wood, L. R. 4 Ex. 328. Allaley, 3 Esp. 11 ; Trappes v. Marter, (y) Mather v. Fraaer, 2 E. & J. 536 ; 2 C. & M. 163 ; Hellawell y. Eastwood, Bain y. Brand, 1 App. Cas. 762. 186 MERCANTILE PROPERTY. Incidents peculiax to mercantile property. to be separately assigned or charged by reason only that they are assigned by separate -words, or that power is given to sever them from the land or building to ■which they are afiS^ed, or from the land on which they grow, without otherwise taking possession of or dealing with such land or building, or land, if by the same instrument any freehold or leasehold interest in the land or buUding to which such fixtures are afS^ed, or in the land on which such crops grow, is also conveyed or assigned to the same persons or person." 187 OHAPTBE II. SHIPPING. Sect. 1. Privileges of a British Ship. 2. What Ships are British. 3. Title to them, how acquired and transmitted, 4. Rights of Part Owners. Section I. — The Privileges of a Bntish Ship {a). These, which formerly ip) were very extensive, secured to The privileges British ships the exclusive right to import for use into the ^p_ " United Kingdom and the colonies, almost every species of foreign goods, as well as the whole of the coasting trade, and the trade between the United Kingdom and the Channel Islands. But these privileges have heen entirely abrogated (c), (a) The subject of British ships is now chiefly regulated by the Mer- chant Shipping Act, 1864 (17 & 18 Vict. u. 104), and the Acts amending it. See them in the Appendix. Numerous minute regulations for the survey and equipment of passenger ships sailing from ports in Great Britain for certain destinations, and regulations for preventing the sending of unsea-worthy ships to sea from such ports, are contained in the statutes 18 & 19 Vict. 0. 119 ; 26 & 27 Vict. 0. 61 ; 35 & 36 Vict. o. 73 ; and 39 & 40 Vict. 0. 80 (as to which see Thompson V. Farrer, 9 Q. B. D. 372) ; but as these are not confined to British ships, and a detail of them is beyond the compass of a work like this, it is not attempted. (J) By way of compensation for the repeal of the privileges formerly se- cured to British ships, a power is given, by sections 324 and 325 of the statute 16 & 17 Vict. c. 107, to the Queen, if British ships, or the articles imported by them, are subject to any prohibitions, restrictions, duties, or charges, in a foreign state, to im- pose, by an Order in Council, such prohibitions, restrictions and duties upon the ships of that state and the articles imported by them, as to place their ships in British ports on a similar footing, and to countervail the dis- advantages to which British trade and navigation are subjected. (c) As to foreign trade, by 12 & 13 Vict. c. 29 ; and as to the coasting trade, by 17 & 18 Vict. c. 5. 188 MERCANTILE PROPERTY. The privileges and the right to assume the national flag and character, and the diip. " ' protection that affords, are the only peculiar privileges which a British ship now enjoys {d). The Queen, however, may by Order in Council impose restrictions upon the vessels of countries which do not extend reciprocity to British vessels (e). Section II.— ^ What Ships are, properly speaking, British. What ships In Order that a ship may be entitled to the name and privi- mea^^,^'^ ^ leges of a British vessel, she must be owned and registered as ^"*"^- ' one (/). No ship is deemed British unless she belongs wholly to owners of one or more of three classes [g). The first of these are natuxal-bom British subjects. But even a natural-bom subject, who has taken the oath of allegiance to any foreign sovereign or state, is disqualified from beiug an owner, unless he has subsequently taken the oath of allegiance to Her Majesty, and is, and continues to be, during the whole period of his being an owner, resident within her dominions, or, if not so resident, a member of a British factory, or partner in a firm carrying on business within them. The second class are persons made denizens by letters of denization, or naturalized by or pursuant to any Act of Parliament {h), or any Act or Ordinance of the [d) 17 & 18 Vict. u. 104, B. 106. («) 16 & 17 Vict. 0. 107, ss. 324 and 325. (/) 17 & 18 Vict. u. 104, ss. 18 and 19 ; Lea/ry v. Lhyi, 3 E. & E. 178. By 12 & 13 Viet. c. 29, s. 7, she must likewise have been navigated by a British master and a certain propor- tion of British seamen ; but this pro- vision was repealed by 16 & 17 Viet, c. 131, s. 31. A British ship may now therefore be navigated by any crew. A temporary pass, entitling a vessel to the privileges of a British ship, may be obtained in certain events : 17 & 18 Vict. c. 104, s. 98 ; The An- nandale, 2 P. D. 218. As to evidence of the nationality of a British ship, and as to criminal jurisdiction over un- registered British ship, see S. v. Seherg, L. E. I C. C. R. 264 ; S. v. Allen, 10 Cox, C. C. 405. is) 17 & 18 Vict. c. 104, 8. 18. It will be observed that this section con- siderably qualifies the former enact- ment, which it supersedes; see 17 & 18 Vict. 0. 120. East India ships are excepted from the operation of the Merchant Shipping Act, 1854, by s. 108. As to what is a ship within the meaning of that statute, see 24 Vict, c. 40, s. 2, and The Mac, 7 P. D. 126. (h) See the reservation in the Natu- ralization Act, 1870 (33 & 34 Viot. c. 14), s. 14. SHIPPING. 189 Legislature in a British possession, provided they are and con- What ships tinue, during the whole term of their heing owners, resident in spe'aMng, Her Majesty's dominions, or, if not so resident, memters of a • ^"^^' British factory, or partners in a house actually carrying on business within those dominions, and they have taken the oath of allegiance to Her Majesty, after being made denizens or naturalized. Thirdly, bodies corporate («) established under, and subject to the laws of, and having their principal place of busi- ness in, the United Kingdom, or some British possession. In the next place a ship must, except in a few instances, presently mentioned, be registered as British, as foUows: A ship may be registered {k) at any British port, which will then be deemed her port of registry, -or the port to which she belongs. If a ship become the property of British owners at a foreign port, the British consular officer of the port may grant her a provisional certificate, which will have the same force for six months, or until her earlier return to a port where there is a British registrar, as a certificate of registration [l). The persons by whom registration is to be made are {m) : — at any port or other place in the United Kingdom or Isle of Man, approved by the Commissioners of Customs for the registry of ships, — ^the collector, comptroller, or other principal officer of customs; in the Islands of Guernsey and Jersey, — the prin- cipal officers of her Majesty's customs, together with the governor, lieutenant-governor, or other person administering the govern- ment of those Islands ; in Malta, Gibraltar, and Heligoland, — the governor, lieutenant-governor, or other person administering the government ; at any port or place so approved formerly («) within the Limits of the charter, but not under the government of the East India Company, and at which no custom house is established, — the collector of duties, together with the govemor,^' (i) Even though some of the mem- (?) 17 & 18 Vict. o. 104, s. 54. See hers composing these bodies may be also Merchant Shipping Act, 1872, foreigners : Reg, v. Arnaud, 9 Q. B. s. 4. 806. [m) 17 & 18 Vict. o. 1C4, s. 30. (A) 17 & 18 Vict. 0. 104, ss. 30, 33. («) By the Government of India Act, And by that statute (ss. 89 and 90), 1858 (21 & 21 Vict. c. 106), India was the registry may be transferred from governed by and in the name of Her one port to another. Majesty. 190 MERCANTILE PKOPEKTY. What ships are, properly speaking, Biitiah. lieutenant-governor, or other person administering the govern- ment. At the ports of Calcutta, Madras, and Bombay,— the master attendants ; and at any other port or place so approved formerly within the limits of the charter and under the govern- ment of the East India Company, — the collector of duties, or any other person of six years' standing in the civil service appointed to act for this purpose. At every other port or place so approved within Her Majesty's domkiions abroad, — the col- lector, comptroller, or other principal officer of customs or of navigation laws ; or, if there be no such officer resident at such port or place, — the governor, lieutenant-governor, or other person administering the government of the possession. The functions which (as will be seen) are vested in the commissioners of customs, may be performed by the governor, lieutenant-governor, or person admiaistering the government in any possession where ships are registered (o). The application for registry must be {p), made by one of the owners, or their agent under a written authority ; and before registry the ship must be surveyed by a surveyor appointed by the Board of Trade {q), who is to grant a certificate specifying her form and build, and other descriptive particulars, so as to. secure her identification. Before registry, too, every British ship must be thus per- manently and conspicuously marked to the satisfaction of the Board of Trade : Her name on each of her bows, her name and port of registry on her stern and on the ship's boats if) ; her official nimiber and her registered tonnage on her main beam ; and a scale of feet denoting her draught of water on her stem, and each side of her stern posts. These marks must be con- tinued, and no alteration is to be made in them, except the particulars are altered in conformity with the Merchant Shipping Acts. An owner or master who neglects these regulations, or who conceals, removes, alters, defaces, or obliterates any of these marks, save to avoid capture by an enemy, becomes liable to a (o) 17 & 18 Vict. 0. 104, B. 31. \p) Id. 8. 36. (?) Id. ss. 29, 36 ; 35 & 36 Vict. c. 73, s. 3. (r) 39 & 40 Vict. (Boats). 0. 36, s. 176 SHIPPING. 191 penalty of 100/. («). But the Board of Trade may exempt any What ships class of ships from any of these regulations (t). speaSg,^'^ ^ The ship, also, must not be descrihed by any other name, and ^"*^' no change of her name shall be allowed without the permission of the Board of Trade, and if she has ceased to be on the register, and an application be made to re-register her, this must be in her old name, unless a change be permitted by the Board of Trade (m). When a ship has ceased to be registered for any other reason than capture or transfer to a person not qualified to own a British ship, before she is registered again she must have been surveyed by a Board of Trade surveyor and certi- fied to be seaworthy {(c). Where, too, an application is made to register as a British ship a ship theretofore foreign, she must, unless with the permission of the Board of Trade, be registered by the name she bore, immediately before the application, as a foreign ship (y). The mode in which the tonnage of the vessel is to be ascertained by measurement is prescribed by the statute, and when once so ascertained is to be deemed to be her tonnage ever after imtil she has been remeasured (a). In order to obtain registry, a declaration must be made (a) by every owner (6), and subscribed by him before the registrar of (j) 36 & 37 Vict. 0. 86, s. 3. See 18 & 19 Vict. o. 91, s. 14; City of Buhlm the Act in Appendix. All British ships S. Packet Co. v. Thompson,'L.'R. ICP. must be thus marked, unless exempted 355 ; The Zoi-d Advoeate v. Clyde Steam by the Board of Trade. By 39 & 40 Navigation Co., L. R. 2 H. li. (So.) Vict. 0. 80, ss. 25 to 28, the position 409. See 35 & 36 Viet. u. 73, ss. 3 of each deck must be permanently and 4 ; and as to the measurement of maiked on every British ship by a foreign vessels, 25 & 26 Vict. c. 63, line on the outside; also before en- s. 60, and The Franconia, 3 P. D. 164. teriug her outwards from any port in (a) 17 & 18 Vict. o. 104, s. 38. By the United Kingdom or immediately d. 103, » wilfully false declaration on afterwards, or, if she be a coaster, this point entails forfeiture ; and even before leaving a port, she must be a bonS fide purchaser for consideration marked with a load line in a prescribed will not acquire, a title from a person manner under a pehal;!^ not exceeding who has made si^ch false decIara,tioi^,;, lOOi. The Anmmdale, 2 P. D. 218, at p. 219. {t) 36 & 37 Vict. 0. 85, s. 3. By 18 & 19 Vict. c. 91, s. 9, any (w) 34 & 36 Vict. 0. 110, s. 6. wilful false statement of title made («) 36 & 37 Vict. o. 86, s. 6. to the registrar is a misdemeanor. (y) Ibid. s. 5. (4) The registrar, with the sanction («) 17 & 18 Vict. c. 104, ss. 20 to 26 ; of the Commissioners of Customs, has 192 MEKCANTILE PROPERTY. What sMps are, properly- British. the port of registration, if he he resident within five miles of the custom house of that port, but if heyond, in the presence of any registrar or justice of the peace. This declaration sets forth the name, port, and description of the ship ; the name and residence of the owner, with other circumstances tending to prove him a suhject of Her Majesty, and qualified to own a share in a British ship ; a statement of the time and place of her being built, or, if she be foreign built, and these particulars are unknown, that she is foreign built and they are unknown, and her foreign name, or, if condemned, the time, place, and court of condemnation: the name of the master; the share of the declarant in the ship, and a denial that any imqualified person is interested in her (c). If the ship belong to a corporation, the declaration is to be niade by the secretary or other duly appointed public officer (d), and the corporate name substituted for the names of the owners (e). Upon the first registry of a ship the applicant for registry must produce (/), if she be British-built, a certificate (wMeh the builder is required to grant under his hand) containing a true account of her proper denomination and tonnage as estimated by him, and of the time when, and place where she was built, together with the name of her first purchaser ; and if any further sale have taken place, the biU or bills of sale under which the ship or share in her has become vested in the party requiring to be registered. If she be foreign-buHt, the the power of dispensing with a decla- ration nnder special oiroumstances upon terms: 17 & 18 Viot. e. 104, s. 97. A provision is also made, by s. 99, for the substitution of a declaration by a guardian, committee, or person ap- pointed by a court or judge in the case of an Infant, lunatic, or person under disability, being the party who ought to make it. {«) 17 & 18 Viot. c. 104, s. 38, Sohed. B., where see the form of de- claration. {d) Ibid. s. 39. This declaration must be made before the registrar of the port of registration, and must state such circumstances of the con- stitution and business of the corpora- tion as prove it to be qualified to own a ship. See the form, Sched. C. («) Ibid. s. 37. And see Beg. T.' Amaud, 9 Q. B. 806, in which case it was held that a corporate company established in England was entitled to register, though some of the mem- bers were aliens, and resided abroad. {/) Ibid. s. 40. StUJ'l'lNG. 193 same evidence must be produced (gr), unless the applicant declares What ships that the time or place of her huHding is unknown, or the speH-king, builder's certificate cannot be procured, in which case only the "'^ " bill or bills of sale under which the ship or share in her became vested in the applicant for registry are required. In the case of a ship condemned by any competent court (A), an official copy of her condemnation must be produced. The above requisites being complied with, the ship is regis- tered, and a certificate of registry delivered to the applicant (i). This certificate (/c) contains the name of the ship and of the port to which she belongs ; the details as to her tonnage, build, and description, comprised in the certificate given by the surveyor, which are extremely full and precise; the name of her master ; the several particulars as to her origin, stated in the declaration of ownership [I) ; the name and description of every registered owner, and, if there be more than one, the propor- tions in which they are interested [m), endorsed upon the certifi- cate. All the above particulars are entered in a book, which the registering officer is required to keep («) ; every registry is numbered in progression, and a full return thereof is transmitted by the registrar to the Eegistrar-General of Shipping and Seamen (o). (jl) If the English rules of measure- 6 Hare, 112; The St. Olaf, 35 L. T. ment of tonnage have been adopted N. S. 428 ; Wiley v. Crawford, 1 B. & by any foreign country, an Order in S. 263 ; but see Lacon v. Liffen, 32 Council may direct that its ships need Jj. J. Ch. 26. not be re-measured here. See 25 & 26 [I) Ante, pp. 191, 192. As to evi- Viot. c. 63, 8. 60, dence of ownership, see The Prmeeas [h) 17 & 18 Vict. 0. 104, s. 40. Charlotte, Br. & Lush. 75; Myers v. (i) By 31 & 32 Vict. o. 129, s. 1, in Willis, 17 C. B. 77 ; The Horloek, 47 the colonies a terminable certificate L. J. Ad. 5. for a period not less than six months [ni) As to the number of shares in may be granted. a ship, and the number of owners (A) 17 & 18 Vict. 0. 120, and o. 104, who may be registered in respect of s. 44, Sched. D., Form I. This is to them, see post, p. 200. be used solely for the navigation of («) 17 & 18 Vict. c. 104, s. 32. A the ship, and it cannot be made the copy of this is primS. facie evidence subject of any lien (17 & 18 Vict. that the vessel was in the possession 0. 104, s. 50) ; and even though de- of the persons registered as owners : posited for good consideration, must Sibbs v. Sots, L. E. 1 Q. B. 534. be restored when demanded for the („) 17 & 18 Vict. 0. 104, s. 94 ; 36 & purposes of navigation: Oibson v. Injo, 36 Vict. 0. 73, s. 4. S. — VOL. I. O 194 MEKCANTILE PROPEUTY. What sbxpa are, properlj speaking', British. In the event of the master heing changed (i?), if the change be made in consequence of the sentence of any naval court, its presiding officer, or, if the change take place from any other cause, the registrar, or, if there be no registrar, the British consular officer resident at the port where the change happens, is to endorse and sign on the certificate of registry a memo- randum of the change, and forthwith report it to the Eegistrar- GreneraL And the officers of customs at any port in Her Majesty's domiaions may refuse to admit any person to do any act as master of the ship, unless his name be inserted in, or indorsed upon, the certificate as her last appointed master. In some cases a ship must be registered de novo. Formerly it was necessary to go through that ceremony whenever the ship had been altered, so as no longer to correspond with the par- ticulars in her certificate {q), but now (r), if she be altered so as not to correspond with the particulars relating to her tonnage or description contained in the register book, when the alteration is made at a port where there is a registrar, the registrar of that port, and when it is made elsewhere, the registrar of the first port having a registrar at which she arrives, on the receipt of a certificate from the proper surveyor specifying the nature of the alteration, either retains the old certificate of registry, and grants a new one containing a description of the ship as altered, or indorses and subscribes on the existing certificate a memo- randum of the alteration. If he be the registrar of the ship's port, he is to enter in his register book the particulars of the alteration, and the fact that a new certificate has been granted, or an indorsement has been made on the existing certificate; but if he be not such registrar, he is foi-thwith to report the particulars and facts to the registrar of the ship's port, who is to enter them in his register book, and retain the old certificate, which is to be sent to him when a new one has been granted. When this application is made to the registrar of the ship's (i>) 17 & 18 Vict. 0. 104, s. 46 ; 35 & 36 Vict. c. 73, B. 4. (?) 8&9Viot. c. 89, s. 31 (repealed). (r) 17 & 18 Vict. c. 104, ss. 84, 86, 86, 87. SHIPPING. 195 port, he may, if he thinks fit, instead of registering the altera- Wliat ships tion, require the ship to be registered de novo, li it be made to speaking, any other registrar, he may likewise require this ; but in that " case he is to grant a provisional certificate, or make a proyisional indorsement of the alteration, and report it to the registrar of her port, and then the ship must, on her arrival in the United Kingdom, if registered there, or in the British possession where she is registered, be registered de novo, or she will cease to be registered as British. On any change of property in a ship, the owners ma)/, if they think fit, have her registered de novo (.s). It remains to enumerate the cases in lohich registry is dispensed uith, viz. : — First. Ships not exceeding fifteen tons burden, employed solely on the rivers or coasts of the United Kingdom, or of some British possession within which their managing owners reside {t). Secondly. Ships not exceeding thirty tons burden, and not having a whole or fixed deck employed solely in fishing or trading coastwise on the shores of Newfoundland or parts adjacent, or in the Gulf of St. Lawrence, or on such portion of the coast of Canada, Nova Scotia, or New Brunswick as He bordering on such gulf («). KnaUy. It is to be observed that no ship is absolutely required to be registered (a;). No ship will be recogniiied as a British ship unless registered. Though unregistered, she will be liable to the payment of dues, and offences committed on board her may be punished {y) ; but no officer of customs shall grant a clearance or transire to enable her to proceed to sea as a British vessel unless the master produces, upon being required to do so, a certificate of registry ; and such officer may retain the ship until the certificate be produced (z). (i) 17 & 18 Viot. 0. 104, s. 88. See The Andalusian, 3 P. D. 182 (slip (i) Ibid. s. 19. See Benyon v. Cress- not registered at the time of colU- well, 12 Q. B. 899. sion not entitled to limitation of lia- (m) Ibid. s. 19. bility under 25 & 26 Viet. o. 63, (4 Ibid. ss. 19 and 106. b. 54). (y) M. V. 8ehei-0, L. R. 1 CO. E. 264. (a) 17 & 18 Viot. c. 104, s. 102. o2 196 MERCANTILE PROPERTY. What ships are, properly speaking, British. A British ship ceases to be considered such, and her certificate of registry must he delivered up, if she he actually or construc- . tively lost, taken hy the enemy, burnt, or broken up ; or if she be transferred to persons not qualified to be owners of British ships (a) ; but in the latter case she may (b) be registered again and restored to her privileges upon her being transferred to persons qualified to be owners of British vessels. The assumption of the privileges of a British ship contrary to these regulations entails in some instances forfeiture. Thus, if any person use the British flag, and assume the British national character, on board any ship owned wholly or in part by any person not entitled by law to own British ships, for the purpose of making such ship appear to be British, she becomes forfeited ; and various officers of Her Majesty may seize and bring her for adjudication before an Admiralty Court, which may deal with her accordingly (c). The concealment of the British character of a ship, or the assumption of a foreign character by a British ship by her master or owners, is a cause of forfeiture (d). The forfeiture takes place when the offence is committed ; and even a bond fide purchaser for value cannot acquire after that event a good title (e). If, too (/), any unqualified person, except in the case of interests transmitted otherwise than by transfer, acquires as owner any interest, either legal or beneficial, in a ship using the British flag and assuming the British character, such interest becomes forfeited, and the vessel may be seized in like manner. («) 17 & 18 Vict. c. 104, s. 63. (J) Ibid. s. 38. (c) Ibid. s. 103 ; The Anncmdak, 2 P. D. 218. Except in the case of escaping' capture by an enemy, or foreign ship of war under a belli- gerent right. (rf) Sect. 103. See The Sceptre, 35 L. T. N. S. 429. (e) The ArmmdaU, 2 P. D. 218. (/) The Sceptre, 33 L. T. 109 ; 17 & 18 Vict. 0. 104, s. 103. As to the course to be pursued in case of a transmitted interest becoming rested in an unqualified person, see ss. 62, 63, 64; 24 & 25 Vict. c. 10, s. 12. SHIPPING. 197 Section III. — Soib Title to British Ships may be acquired and transmitted. Having shown what ships have a right to he called British, How title to we proceed to consider how the title to such ships may he maybe acquired and transmitted. tons'S'tte'd.'^ A ship is a personal chattel, and therefore, generally speaking, suhjeot to the rules which govern that description of property. It may be originally acquired — 1. By building it. 2. By capture from an enemy in time of war, sanctioned by condemnation by a competent court of the capturing power, constituted according to the law of nations. The capture may be either by a Government vessel, or merchant vessel haviag letters of marque, or, it would appear, by an imoommissioned merchant vessel (g). Although such capture and condemnation suppose a pre- existing right in some one to the vessel captured, this is enume- rated as a mode whereby property in it may be originally acquired, because we are, as must be recollected, treating only of British shipping ; and its right to be registered, and conse- quently to be called British, does not accrue till sentence of condemnation {h). Eespecting the court in which this sentence is passed, there is the following rule : That a legal sentence of condemnation cannot, according to the law of nations (which regulates all cases of prize), be passed by the consul or minister of the belligerent power in the country of a neutral power to which the prize has been taken (J). But States in alliance with the captors, and at war with the country to which the prize belongs, are considered as forming one community with the captors ; and is) 1 Maude & PoUook, 4th edit. 65. i WiU. 4, u. 55, s. 5. {It) This rather had reference to the (i) The Flad Oym, 1 Eob. Adm. old state of the law, which did not Rep. 135; The Eierlighett, 3 Eob. allow foreign-built ships ever to be Adm. Rep. 96 ; Havelock v. Mockwood, registered, except in case of condem- 8 T. K. 268. nation. See the repealed statute, 3 & 198 MERCANTILE PEOPERTY. How title to British ships may be acquired and transmitted. a prize carried into suoh a State may be condemned, either there by a consul belonging to the nation of the captors (/c), or in the country of the captors (l). 3. By purchase from a foreigner, or other owner not regis- tered (m). "The purchaser," said Turner, L. J., in. Hooper v. GzMnm (w), " is bound to make inquiry into the title. A ship is not like an ordinary personal chattel ; it does not pass by deli- very, nor does the possession of it prove the title to it. There is no market overt for ships." The title to a British ship may be transmitted by the ope- ration of the bankrupt law, or by death, or by marriage of a female owner (o), or it may be taken and sold in execution, being, as we have seen, a chattel personal. But the ordinary mode of acquiring property in shipping is by conveyance from a person authorized to dispose of it. Such a person may be — 1st. The Master. In a case of extreme necessity, the master may sell the ship for the benefit of the owners, though nothing but necessity will justify such a step (js). "Suppose, for instance," said Lord Stoivell, in the case of The Fanny and Elmira (g), " a ship ia a foreign country, where there is no correspondent of the owners, (A) The Betsy, 2 Eob. Adm. Eep. 210, n. ; OMy\. Bovill, 2 East, 473. {I) The Christopher, 2 Eob. Adm. Eep. 209. As to sale of a pirate ship transferred to innocent purchaser be- fore conviction, see Reg. v. McCUverty, L. E. 3 P. 0. 673. (m) By 17 & 18 Vict. c. 104, ss. 38, 40, if she become the property of per- sons qualified to be registered as owners at any foreign port, the British consular officer may grant a provi- sional certificate, which will have the same effect as a certificate of registry for six months, or until her earlier arrival at a port where there is a registrar: 17 & 18 Vict. c. 104, s. 54. (n) L. E. 2 Ch. at p. 290. (o) 17 & 18 Vict. u. 104, ss. 58, 59, 60, and see the course there directed to be pursued in such cases. If the ship or any shares in her become vested, by transmission on death, or by marriage of a female, in an unqua- lified person, he may promptly apply to the Court of Chancery in England, or the Court of Admiralty, for an order authorizing a sale by a nomi- nee: 17 & 18 Vict. c. 104, ss. 62, 63, 64 ; 24 & 25 Vict. u. 10, s. 12. {p) See, on this subject, Abbott on Shipping, Part I., Ch. I., and the case cited in Pritohard's Digest of Admiralty Law, 3rd ed., 1220, 1221. (?) Edw. Adm. Eep. 117. SHIPPING. 199 and no money to be had on hypothecation to put her into repair. How title to Under these oiroumstanoes what is to be done ? The ship may may be '^^ rot before the master can hear from his owners ; and, therefore, ^ra^rdtted^ if the necessity were clearly shown, with full proof that every- thing was done optim&fide, and for the real benefit of the owners, the Court might be disposed to sustain a purchase so made. — But there must be the clearest proof of the necessity; it must be shown not only that the vessel was in want of repair, but likewise that it was impossible to procure the money for that purpose." The master may in foreign ports hypothecate the ship, freight, or cargo, if that be necessary in order to raise money for her (r). If money cannot be otherwise obtained for repairs, he may sell part of the cargo (s) ; and may in cases of necessity dispose even of the cargo or ship itself for the benefit of all concerned (^). It Ues on those who claim a title through the master to prove the necessity of the sale(t(). In Arthur v. Barton {x), it was held that even in an English port a master may,- in a case of necessity, borrow money for the use of the ship (y). But this, as is explained hereafter ij/y), is on the supposition not merely that the supply of money is necessary, but that the owner cannot be oommimicated with ; and the rule is the same as to goods (s). In hypothecating the goods the master acts as agent for the owner of them {a). He may tranship goods with which the ship is freighted (5). The extent and nature of the master's agency are determined by the law of the flag (c) . The master has also authority over all persons ia the ship in matters relating to her navigation and the preservation of good order on board, ()•) The Oratitudine, 3 Bob. Adm. [x) 6 M. & W. 138; Weston v. Eep. 240 ; Senson v. JDmem, 3 Exoh. Wriffht, 7 M. & W. 396. 644; StttinbmkY.Fenning, IIC. B. 61; (y) BeUon v. Campbell, 3 Ex. 886; The Olivier, 31 L. J. Ad. 137 ; Tlie Australian Steam Navigation Co. v. Ziziie, L. E. 2 A. & E. 254 ; T/ie Morse, L. E. 4 P. C. 222 ; Acatos v. Karnak, ib. 289 ; The Onward, L. E. 4 Bums, 3 Ex. D. 282. A. & E. 38 ; TheFontida, 9 P. D. 177. f^/y) Infra, pp. 358, 514—517. («) Abbott, 12thed. p. 120. (a) Johns v. Simons, 2 Q. B. 425; (<) Munter v. Parker, 7 M. & "W. Stonehouse v. Gent, ib. 431, n. ; Beldon v. 822 ; Vlierhoom v. Chapman, 13 M. & Campbell, ubi sup. W. 230 ; Ireland v. Thompson, i 0. B.. (a) Benson v. Duncan, 3 Ex. 644. 149. [b) Cannan t. Meaburn, 1 Bing. 243. («) Atlantio Mutual Insurance Co. v. (c) LUydY. Guibei-t, 6 B. & S. 100 ; Suth, 16 Oh. D. 474. Gaetmo and Maria, 7 P. D. 137. 200 JIEHCAN'ilLE PKOPEKTY. Ho-w title to and he may, in ease of disobedience or disorder, admiaister may'bV"^^ reasonable eoirection, his authority in this respect resembhng acquired and ^^^^^ ^f ^ parent over his child, or a master OTer his apprentice or transrmtted. -T ^ . ~ scholar. But he must take care that there be a suihcient cause for chastisement, and that the chastisement be reasonable, other- wise he will be punishable {d). 2ndly. The Owner. The conveyance of property in British ships is almost entirely regulated by the provisions of the Merchant Shipping Act, 1854 (e). We have abeady seen how a ship is registered iq the first instance; the nature of the book of registry, ■which. Hie public officers are reqtured to keep ; and of the certificate of registry which they deliver to the owners. The property of every British ship is considered by law as divided into sixty-four equal parts, and no person can be registered as owner in respect of any proportion not being a sixty-fourth part(/). Subject to the provisions as to joint-owners or owners by transmission pre- sently mentioned, not more than sixty-four individuals are entitled to be registered at the same time as legal owners of a ship (g). But any number of persons, not exceeding five, may be registered as joint-owners of the ship or any shares in her; and these, whether entitled by purchase or transmission, are to ' be considered as constituting one person in reckoning the number of persons entitled to be registered. They cannot, however, dispose in severalty of their interest ; and no person is to be registered as owner of any fractional part of a share. This rule does not affect the beneficial (/«) title of any number of persons, or any company represented by, or claiming through, any registered owner or owners ; but no notice of any trust whatever can be entered on the register, or is receivable by the [d) Abbott, 12th ed. p. 124; Mac- donell on Master and Servant, p. 33. (e) 17 & 18 Viot. 0. 104, Part 2. (/) See 17 & 18 Viot. c. 104, s. 37, infra. , iff) 43 & 44 Viet. e. 18 (Merchant Shipping Amendment Act, 1880), s. 2. (A) 43 & 44 Viot. o. 18, s. 2, and 26 & 26 Vict. 0. 63, o. 3. feHIl'PIKG. 201 registrar (4). The actual numter of persons, therefore, regis- How title to tered in respect of the whole of the shares in the ship may far may be* ^* exceed sixty-four ; but every owner must be registered by name, ^""^^^d and the style of a firm cannot be used. It is, however, provided ■ that a corporation may be registered by its corporate name {J). Keepiug these rules in mind, we will proceed to consider the mode which the Legislature has pointed out for the transfer (k) of a ship, or any shares in it, from one person to another. By the Merchant Shipping Act, 1854, every transfer of a rer/is- tercdij) ship to a person qualified to be an owner of a British ship shall be by bill of sale {m), according to a prescribed form, which is under seal, and which specifies the number and date of registry, the name, build, port of registry, and nature of the ship, with her full description and tonnage. This is to be executed («) in the presence of, and attested by at least one witness (0). A transferee cannot be registered until he has made a declaration in a given form {jj), corresponding with that of an original owner, stating his qualification to be registered, and containing (i) 17 & 18 Vict. 0. IM, 8. 43 ; 26 & 26 Viot. 0. 63, 8. 3. See Armstrong V. Armstrong, 21 Beav. 78 ; Liverpool Borough Bank v. Turner, 30 L. J. Ch. 379 ; and Chapman v. Callis, 9 C. B. N. S. 769 ; Lacon v. Liffen, 32 L. J. Ch. 26. (y) 17 & 18 Viot. c. 104, 8. 37. (A) These provisioiiB are only appli- cable to yes8el8 requiring regi8tration, oon8equently vessels under fifteen tons, falling within the exception in 17 & 18 Viot. 0. 104, 8. 19, are not within them ; and such Teasels, though they be ac- tually on the register, may be trans- ferred like any other chattel: Benyon V. Crcsswell, 12 Q. B. 899. These pro- visions, too, do not include a sale to a person not qualified to be registered. (I) As to what ships require to be registered, ante, pp. 188, 189, 195. (hi) Sect. 66. A bill of sale seems always to have been the usual mode of transfer of a ship : Tlie Sisters, 5 Rob. Adm. Rep. at p. 159. A transfer or assignment of any ship, or of any share thereof, is not "a biU of sale" within the Bills of Sale Act, 1878: JEx parte Winter, Be Softlcy, 44 L. J. Bank. 107; Union Bank of London v. Lenanton, 3 C. P. D. 243. No stamp duty is pay- able on it: 17 & 18 Viot. u. 104, s. 9. in) At which instant, it seems, and not before (though an agreement to purchase has been executed before the bill of sale), the transferee becomes owner : Chapman v. Callis, 9 C. B. N. S. 769. (o) 17 & 18 Viot. c. 104, 8. 55, Sched. Form E. See the Form now issued by the Commissioners of Cus- toms. No registrar shall be required to register any bill of sale in any other form: 18 & 19 Vict. c. 91, s. 11. (jo) 17 & 18 Vict. c. 104, o. 56, Sched. Forms F. and G. As to cases in which this may be dispensed with, and of disabilities, see s. 97, and ante, p. 191, note [h). 202 MEKOANTILE PROPERTY. HoTv title to a denial that any unqualified person is interested in her. If may be ^ ^^ the declarant reside within five miles of the port of registiy, tra^Stted* ^^^^ ^^®* ^® made in the presence of the registrar of the ship's port- ; but if he reside elsewhere, tef ore any registrar or magis- trate. In the case of a hody corporate, the declaration also states circumstances showing it to be qualified to own a ship, and is to be made by its secretary, or other public officer, in the presence of the registrar of the port of registry. The bill of sale, together with the declaration, is to be produced (q) to the registrar of the port at which she is to be registered, and he enters the name of the transferee as owner in the register book, and indorses the fact of the entry on the bill of sale, with the date and hour thereof. The provisions do not apply to the transfer of a vessel which is not a British vessel and not regis- tered ; and an assignment of such a vessel need not be regis- tered under the Merchant Shipping Act or the BiUs of Sale Acts (r). All bills of sale are to be entered on the register in the order of their production ; and the registrar wiU not be compelled to register a transfer not in the form of a bill of sale («). Lastly, it is to be observed that the object of the Mer- chant Shipping Act, 1854, in prescribing registration, being only to give the ship or shares in the ship a visible owner, who should have absolute authority to dispose of his interests, both at law and in equity, to a bond fide transferee {t), the bare fact of registration does not give any title in equity, though it does at law, to one who has no actual title to a ship or shares in a ship ; and, therefore, such a person can be compelled to exe- cute a re-transfer and account for the earnings to the rightful owner (tt). The fact of a person's name appearing on the re- (q) 17 & 18 Viot. c. 104, s. 67. In 3 0. P. D. 243. See Gapp v. Bond, case of change of ownership, the 19 Q. B. D. 200 (a dumb barge), master is also required to produce the («) Chastemmeuf v. Capeyron, 7 App. certificate of registry to the registrar- Cas. 127. of her port, or the registrar of the [t) Under the old Act, 8 & 9 Viot. next port she touches at may require c. 89, non-registration by the first pur- him to produce it, in order that the chaser did not affect the title of a sub- change may be indorsed upon it. See sequent bonS, fide purohafier : Lapraik 17 & 18 Viot. c. 104, s. 45. v. Burrma, 13 Moore, P. 0. Ca. 132. [r) VnimSankofLondony.Lmanton, {«) Moldoitess t. Lamport, 29 Beav. SHIPPING, 203 gister as owner is not conclusive of his liability for work done or How title to orders given at the instance of the master (v) ; and a transfer may\e^ '^^ which is on the face of it ahsolute and unconditional may he ^^fj^ed*^ shown to he in reality a mortgage (x). It seems clear that an instrument not registered as a bill of sale — e. g., an agreement to transfer a ship — may be enforced {y). In this statute, too, are contained peculiar provisions (z), ena- bling the registrar to grant to the owner of a ship (a) a certifi- cate of sale, which will authorise persons specified in it to dispose of the entire ship by sale, in any place out of the United Kingdom, if the ship be registered there, or if she be registered in any British possession, in any other country. This power is revocable, upon notice being given by the registrar granting the certificate to the registrar or consular officer of the place at which the power is to be exercised {b). No sale bond fide made to a purchaser for a valuable consideration is to be impeached by reason of the death of the donor of the power before the sale, or by his bankruptcy or insolvency, if the certi- ficate specify the place and time, not exceeding twelve months, •within which the power is to be exercised, and the purchaser be without notice. If the sale be made to a person qualified to own a British ship, she must be registered anew ; but this may be done upon a declaration being made by the purchaser, as in the ordinary case of a transfer, without a fresh survey. The registrar making this new registration is to indorse the fact on 129 ; M'Larty v. MiMleton, i L. T. 83. If exercised, it must te in close N. S. 852 ; see 25 & 26 Vict. o. 63, conformity -with the directionB con- 8. 3 ; The Innkfallen, L. B. 1 A. & E. tained in the certificate, as, otherwise, 72 ; and The Borhck, 2 P. D. 243. the bill of sale which professes to be (i)) Myers v. Willis, 18 C. B. 886. made under it will be utterly invalid, (») Ward V. Seek, 13 0. B. N. S. even though registered : Orr v. Diek- 668. inson, 28 L. J. Ch. 516; Eooper v. (y) Batthyanyy.Bouch, SOL. J. Q. B. Cfumm, L. R. 2 Ch. 282. 421. In Liverpool Borough Bank v. (o) By s. 81, no such certificate is Turner, 30 L. J. Ch. 379, decided to be granted, except for the sale of upon s. 66 of 17 & 18 Vict. o. 104, an an entire ship ; but, by s. 76, it seems agreement to assign a mortgage was that such a oertifloate may be granted held invalid ; but see 25 & 26 Viot. to the several owners of the whole of 0. 63, s. 3. the shares in her. (i) 17 & 18 Viot. c. 104, 88. 76 to (*) Sect. 83. 204 MERCANTILE PEOPERTY. How title to the certificates of sale and former registry, whicli are to be de- may be ^^ livered up to, and transmitted by him to the registrar of her ta^tted*^ former port, who is to enter the sale in his register. If the ship be sold to a person not qualified to hold a British ship, the purchaser is to produce the certificates of sale and registry to some registrar or consular officer, who is to indorse the fact of the sale and forward them to the registrar of her former port, and he is to enter it in his register. In the ease, too, of a sale to such unqualified person, if default be made in the production of these certificates, the purchaser acquires no title, and the owner and the persons to whom the power was granted are liable to a penalty not exceeding 100/. If no sale be made, the certificate of sale is to be delivered to the registrar who granted it, and he is to cancel it, and enter the cancellation in his book. In case of Mortgage. The above considerations are applicable to every instance in which property in British shipping is transferred, but there are one or two regulations peculiar to cases of mortgage. A mortgage of a British ship, or any share in her, must he in a specified form, under seal and attested, which states, as in the ease of a transfer, the number and date of the registry and the other particulars of the ship, and " mortgages" the ship as a security for a loan or other valuable consideration (c). An assignment absolute in its terms may operate as a mortgage, if the real nature of the transaction shows it to have been so intended. The mortgage is to be produced to the registrar of the ship's port, who is to record it in the order of time in which he receives it, and to indorse upon it the date and hour of its record [d). As the entire property does not pass to the mort- gagee, there of course remains a portion in the mortgagor which he can transfer to a purchaser or second mortgagee. An imregistered mortgage does not appear to be void ; but it wiU (c) 17 & 18 Vict. c. 104, s. 66, N. 423; Hutchinson v. Wright, 25 Sohed. rorm I. ; Ward v. Beck, 13 Beav. 444 ; The Innisfallen, L. E. 1 C. B. N. S. 668 ; Langton t. Morton, 5 A. & E. 72. Beav. 9 ; Gardner v. Caienove, 1 H. & [d] Sect. 67. suii'PiNo. 205 be postponed to a registered mortgage or transfer (e) . If more How title f» than one mortgage be registered, the mortgagees, notwith- may be ^ ^ standing any express, implied, or constructive notice, have ^a^Stted*^ priority over one another according to the date at which each instrument is recorded in the register book, and not of each instrument itself (/). Every registered mortgagee has power absolutely to dispose of the ship or share mortgaged ; but if there be several registered mortgagees, a subsequent mortgagee, except under the order of some Court, cannot do this without the concurrence of every prior mortgagee {g). The mortgagee is not to be deemed an owner, nor is the mortgagor to be deemed to have ceased to be the owner, save so far as is necessary for the purpose of making the ship available as a security (h). His contracts, therefore, for the employment of the vessel, made providently and not to the material injury of the mortgagee's security, while he is in possession, will be valid as against the mortgagee («) . The effect of the mortgage is to give the mortgagee, as against the mortgagor, the right to the immediate possession (J) of the ship, and thereupon to her earnings whensoever they accrue (A). (e) Mell V. Slyth, L. R. 4 Ch. 136 ; gagees : Tanner v. Seard, 23 Beav. Zeith V. Burrows, 1 C. P. D. 722 ; 2 656. App. Cas. 636. (A) Sect. 70 ; Gardner v. Cazenove, 1 (/) Sect. 69. By 24 & 26 Viot. H. & N. 423. 0. 10, 8. 11, the Admiralty Court is (i) Collins v. Lamport, i De Q-. J. & empowered to settle any claim arising S. 600 ; The Innisfallen, L. K. 1 A. & out of a registered mortgage. The E. 72 ; The Fanchon, 6 P. D. 173. mortgagee generally has priority over (j) The European and Australian S. material men : The Paeifie, Brown. & M. Co. v. The Eoyal Mail S. I". Co., 30 Lush. 243 ; The Soio, L. R. 1 A. & E. L. J. 0. P. 247 ; Dickinson v. Kitchen, 363 ; The Two Ellens, L. R. 4 P. C. 8 E. & B. 789. Subject, however, to 161 ; Tlie Rio Tinto, 63 L. J. P. C. 54. any equitira between them : 25 & 26 But a bottomry bondholder takes pre- Vict. u. 63, b. 3 ; The Oathcart, L. R. cedence of a mortgagee : 1 Maude and 1 A. & E. 314. Pollock, 4th ed. 376. [k) The rights of a mortgagee who (y) 17 & 18 Viot. c. 104, 8. 71. He takes possession are subject, however, is entitled to deduct from the proceeds to all legal liens of third parties : The the amount due on the mortgage and Eoyal Arch, 1 Swab. 269 ; Williams v. the expenses of the sale, but, it would Alhup, 10 0. B. N. S. 417 ; and to a seem, no other expenses, either against lien by seamen for their wages ; The the mortgagor or subsequent mort- Sydney Cove, 2 Dods. 13 ; The Neptmie, 206 MERCANTILE PROPERTY. Ho-w title to British ships may be acquired and transmitted. " The mortgagee of a ship does not, ordinarily speaking, or by a mortgage such, as existed in the present case, obtain any transfer by way of contract or assignment of the freight; nor does the mortgagor of a ship undertake to employ the ship in any particular way, or indeed to employ the ship so as to earn freight at all. " When a mortgagee takes possession he becomes the master or owner of the ship, and his position is simply this : from that time everything which represents the earnings of the ship, which had not been paid before, must be paid to the person who then is the owner, who is in possession. The owner then in possession happens to he the mortgagee, and it is in consequence of his filling that position, and not by virtue of any contract, or any antecedent right, that he becomes the person entitled to receive the freight. But that right is itself checked by another consideration. AJl that he can receive is that which the ship was in the course of earning, either by way of express contract or, which is the same thing, by carrying goods upon a quantum meruit " (l). If, therefore, the mortgagee takes possession of the ship (m), or does an act equivalent to it («), as he may, during a voyage, he is entitled to receive the freight eaxned in that voyage (o). He may employ the ship in whatever manner he pleases, pro- vided it be bond fide and provident (^) ; and so long as he remains in possession the only effect of the act seems to he to preserve to the mortgagor his equitable and insurable (j) in- terests and a right to a re-transfer of his ship, as soon as the mortgagee shall have recouped himself out of her earnings, or he shall have been repaid the sum agreed to be secured (r), unless he have exercised his power of sale. 1 Hagg. 227, 238, 239. As to the master's rights, see 52 & 63 Viot. u. 46, 8. 1, and infra, p. 707. As to the priority of certain eqiiitahle rights, see Sristowe v. WTiitmore, 9 H. L. 391 ; Susden v. Pope, L. E. 3 Ex. 269 ; Wilson T. Wilson, L. E. 14 Eq. 32; and Tanner v. Fhillips, 42 L. J. Ch. 126. [1) Lord Cairns in Keith v. Burrows, 2 App.'Cas. at pp. 645, 646. (m) Gardner v. Cazenove, 1 H. & N. 423 ; mais v. Falmer, 7 C B. N. S. 340; Liverpool Marine Credit Co. v. Wilson, L. R. 7 Oh. 607. {«) Susden v. JPope, L. E. 3 Ex. 269. (o) Keith V. Burrows, 2 App. Cas. 636 ; Kerswill v. Bishop, 2 C. & J. 529;' Cato T. Irving, 6 De G. & S. 210. [p] Be Mattos v. Gibson, 30 L. J. Ch. 145 ; Marriott v. Tlie Anchor M. Society, 30 L. J. Ch. 571. (?) Hutchinson v. Wright, 25 Beav. 444. [r) Marriott v. Anchor M. Society/, 30 L. J. Ch. 571. SHIPPING. 207 Although, under an enactment similar to this it was doubted (s) How title to whether a mortgagee had sufficient interest to entitle him to maybe recover more than the amount of the mortgage debt, upon a tr'^^tted^ policy of insurance for the entire value of the ship, unless at the time of executing the policy it was his intention to include the interest of the mortgagor for the sake of the latter, it may, nevertheless, be questioned whether a mortgagee, either in or out of possession, may not recover the full value insured, quite irrespective of any intention he may have had when effecting the policy {t). On the whole, it would seem that the mort- gagee will be able to recover only to the extent of his debt, unless it appear that he intended to cover not only his own interest, but that of the mortgagor («). There can be no doubt that in equity, and possibly at law («), he would be liable as trustee for the excess of the sum recovered beyond his debt, and perhaps the premium. The mortgagee is preferred {y) to the trustee of the mort- gagor in case of bankruptcy, and protected from having the mortgaged property considered as in the bankrupt's order and disposition. A certificate of mortgage, corresponding in many respects with a certificate of sale (s), may be granted by the registrar; and similar provisions, as in the case of a certificate of sale, are enacted, rendering a mortgage under it valid, notwithstanding the death, bankruptcy, or insolvency of the owner. The mort- gage is to be indorsed by a registrar or British consular officer on the certificate of mortgage, and is to have priority over all (») Irving v. Bichardson, 2 B. & («) 1 Amould, 6tli ed. p. 85 ; I Ad. 193. Phillips, s. 289. (0 Oodin y. The Zondon Ass. Co., 1 (») Ward v. JBech, 13 C. B. K. S. 668. Burr. 490; BeMattosY. Gibson, SOL. J. [y) 17 & 18 Vict. c. 104, s. 72. See Ch. 145 ; Dolhyn V. Comerford, 10 Ir. Soyson v. Gibson, 4 0. B. 121 ; Emden Oh. Eep. N. S. 327 ; Ebsworthv.AUi- v. Pope, L. R. 3 Ex. 269; and Ccmpr once M. I. Co., L. E. 8 0. P. 596 ; bell v. Thompson, 2 Hare, 140. A Provincial Insurance Co. v. Ledtic, L. E. transfer or mortgage of a ship is not 6 P.O. 224; and see the analogous within the Bills of Sale Acts. See note oases of flre insurance : Waters v. The [r), ante, p. 202. Monarch Assurance Co., 5 E. & B. 870. («) 17 & 18 Vict. c. 104, ss. 76 to 80. See The L. ^ JV. W. £. Co. v. Gh/n, 1 A share or shares in a ship may be E. & E. 652 ; North British In. Co. t. mortgaged under this eertifioate : see Moffatt, L. E. 7 0. P. 25 ; Martineau ss. 76 and 80. V. Kitehing, L. E. 7 Q. B. 436. 208 MERCANTILE PJIOPEIITY. Ho-w title to British ehips may be acquired and transmitted. mortgages subsequent to the date of the entry of the certificate in the register. If there he more than one mortgage under the certificate, the mortgagees are to have priority according to the dates of the indorsement of their charges on the certificate. A mortgage may be transmitted or transferred by death, bankruptcy, &o., and such transmission or transfer is to be registered (s). A mortgage may be the subject of an equitable deposit, and such deposit ■will prevail against the trustee under a bankruptcy (a). Upon the discharge of any mortgage, satisfac- tion is likewise to be entered in the registry (J). nights of part owners. Section IV. — Rights of Part Owners. It remains to consider the rights of part owners of a ship amongst themselves. It is possible that joint tenancy may be created in a ship, as well as in any other chattel, by grant to several persons jointly ; and if it be, the rule jus accrescendi inter mercatores loctcm non habet will apply to it (c). But if several persons be registered as joint owners of shares in a ship, it would seem that, at least at law, they would survive, as by s. 37 of the Merchant Shipping Act, 1854, no person can be re- gistered as owner of a fractional part of a share. The opera- tion of the Act occasions this sort of property to be usually conveyed in distinct shares of one or more sixty-fourth parts, the owners of which are tenants in common of the vessel, and would hold it subject to the general rule of the common law, which permits any one tenant in common to seize upon the chattel, and regulate the mode of its enjoyment, to the exclusion of the rest {d), were it not that pubKc policy steps in and exempts this sort of property from a rule, which, if applied to it, might prove injurious to commerce. Accord- [z) Sects. 73, 74, 75. If trans- ferred, the transfer is to be indorsed on the mortgage : see Sohed. 2. (a) 2aco«v. Liffm, 32 L. J. Ch. 25. (4) Sect. 68. Chmteauneuf v. Ca- peyrm, 1 App. Cas. 127 ; Selly. Blyth, L. E. 4 Ch. 136. («) See JS. T. Fhilp, 1 Moo. Cr. Ca. 274. (rf) Braves v. Saweer, T. Eaym. lo ; 1 Lev. 29 I Strelky y. Winsm, 1 Vem. 297 ; Anon., Skinner, 230. SHIPPING. 209 ingly, if the owners themselves have not precluded all dispute Rights of by agreeing in the choice of a ship^s htisband, or managing '— owner, and delegating the care of their interests to him, the Court of Admiralty (c) interferes by arresting the ship, and preventing the majority of owners from sending her abroad against the will of the minority, without first entering into a stipulation, in a sum equal in value to the shares of the dis- sentients, either to bring back the ship or pay the value of their shares (/). On giving this security they are permitted to send the ship to sea {g), and if the minority are in possession of it, may take it out of their hands for that purpose by a warrant of the Court. But the dissentient owners bear no part of the ex- pense, and are entitled to no part of the profit of the voyage to which they have disagreed {h). In case the owners be equally divided in opinion, either half may apply to the Court to interfere in the manner above stated (A). As the Court of Admiralty may arrest the ship for the protec- tion of one part of the owners against another, so it may for the protection of the owner or owners against a wrong doer (»). The Court may order the ship to be sold (/c). The ordinary mode for part owners to obtain an adjustment of the ship's accounts was by suit in a Court of equity, or, since the Admiralty Court Act, 1861, by suit in the Court of Admi- ralty {I), and now by action in the High Court of Justice (tn) ; they may, however, by naming a ship's husband, and inserting special provisions in his appointment («), entitle themselves to an action against him, in case he fail in making up his account, («) Its jurisdiction is now extended (i) Per our. In re Blanshard and by 24 & 2S Vict. o. 10. See The others, 2 B. & C. 244. Tigrm, 32 L. J. Ad. 97. By ». 8, (k) 24 & 25 Viot. v;. 10, o. 8. that Court may decide all questions, (?) Ibid. and settle all accounts between oo- {m) 36 & 37 Viot. u. 66, s. 16. A owners. As to sale of ship by the receiver may be appointed in a co- Court, see The Nelly Schneider, 3 P. D. ownership suit : The Ampthill, 5 P. D. 152 ; The Marion, 10 P. D. 4. 224. (/) The Talea, 5 P. D. 169. («) A formal appointment is not {g) See Abb. on Shippg., Part 1, necessary; it is enough if he has 0. 3. acted, ajid the owners of the ship (A) Davii V. Johnston, i Sim. 539 ; have acquiesced in his acting, in this The Apollo, 1 Hagg. Ad. Rep. 306 ; capacity : Chappell v. Srai/, 6 H. & N". Abb. on Shippg., Part 1, c. 3. 145. S. — vol,. I. p 210 MERCANTILE PROPERTY. Eights of and diTiding the profits (o) ; while, on the other hand, the ship's part owners, jj^g^j^^^ ^ j^g jja,ve advanced money for outfits, may sue each of the owners for his proportion (jj). Sect. 36 of 39 & 40 Yict, c. 80, requires the name of the managing owner to be regis- tered (q). Part owners resemble partners with respect to the concerns of the ship, and are therefore, generally speaking, all liable to the f uU extent for debts contracted for its repair and other necessary expenses, which can be shown or presumed to have been incurred with their assent (r). But this liabihty arises in every case out of contract, and is not an incident in- separable from the registered ownership of the vessel ; and therefore, if the registered owners can show that the expense was not incurred on their credit, they wiU not be liable for it. And, in like manner, any one of them wiU be exempted who can show that he has' not pledged his responsibility ; for the mere legal ownership, per se, is in no case sufficient to render an owner liable (s).- Where the ship is imder the management of the master and the owners divide the profits, the master is, with respect to her concerns, primd facie (t) agent for them all. There will be a (o) Owstm V. OgU, 13 East, 538 ; The Eeinrieh Bjom, 11 App. Cas. 271. Servante v. James, 10 B. & C. 413. (s) Brigga v. Wilkinson, 7 B. & 0. See Eadenhurst v. Bates, 3 Bing. 463 ; 30 ; The Great ^Eastern, L. E. 2 A. & Davies v. Sawkins, 3 M. & S. 488. As E. 88 ; Cox v. Seid, E. & M. 199 ; to the rights of the ship's husband Cttrling v. Robertson, 7 M. & G. 336; against the shipowners, see Helme v. Frost v. Oliver, 2 E. & B. 301 ; Brodie Smith, 7 Bing. 709 ; Tanner v. Frost, v. Howard, 17 0. B. 109 ; Sackmod 39 L. J. Oh. 626. v. Z}/all, ib. 124 ; Mitoheson y. OlMer, (p) See as to his interest, Beynon v. 5 E. & B. 419 ; Myers v. Willis, 17 Boddm, 3 Ex. D. 263. C. B. 77 ; 18 0. B. 886 ; Eibbs v. (?) This Act makes no difference in Hoss, L. E. 1 Q. B. 634. But see the authority of the managing owner Barker v. JSighley, 15 0. B. N. S. 27 ; to pledge the credit of the other owners : CouUhwrst v. Sweet, L. E. 1 C. P. 649 ; Frazer v. Cuthbertsm, 6 Q. B. D. 93. Mitchell r. Tarbutl, 6 T. E. 649. (c) Green v. Briggs, 6 Hare, 395 ; {t) Briggs v. Wilkinson, 7 B. & 0. Chappell y. Bray, 6 H. & N. 146. As 34 ; Jennings v. Griffiths, E. & M. 42 ; to the liability for repairs ordered by Toung v. Bmndff.A Eii^t^. W,; Frtm>' a charterer, who is also ship's hus- v. Marsh, 13E^st, 238; Reeve, ^. I), band, see Preston v. Tom^lm, 2 H. & 1 A. & E. 312 ; Frost r. Pliver, 2 E. & N. 363; ib. 684; Whitwell y. Ferrin, B. 301; Myers v. Willis,n C.B. 77; 4 0. B. N. S. 412; Franer t. Cuihberi- 18 C. B. 886. But see Mitchesont, v. son, Q. B. D. 93 ; and as to neoes- Oliver, 5 E. & B. 419 ; Mackenzie v. saries supplied to a foreign vessel, see FooUy, 11 Exch. 638. SHIPPING. 211 right to contribution in the event of any one of them heing Eights of obliged to pay damages for collision or negligence in the P"* ownera. management of the ship («). But although their connection in this respect resembles that of partners, yet it is clearly not a '>' partnership («). The admission of one is not blading upon the other (y) ; each may transfer his share without the consent of the others, nor is it liable to confiscation for acts done by the others.without his privity, thus, if one part owner be the pro- prietor of the cargo, condemnation thereof involves the condem- nation of his share of the ship, but not that of the shares of other part owners, who knew nothing of the contraband com- modities (b). {«) Frazer v. Cuthbertson, ubi sup. C. 166 ; Wedderburn v. Wedderburn, i {x) See supra, p. 11 ; Wilson v. Dick- M. & Or. 41 ; The Vindobala, 68 L. J. son, 2 B. & Aid. 2; Helme v. Smith, 7 P- D. & A. 60. Bing. 709; Brigga v. Wilkinson, 7 B. (y) Jaggersv. Sinnings, 1 Stark. 64. & 0. 34 ; Williams v. Thomas, 6 Esp. (2) The Jonge Tobias, 1 Rob. 329. 18 ; Mobinson v. Gleadow, 2 Bing. N. p2 212 MERCANTILE PROPERTY. CHAPTEE III. GOODWILL AND TRADE MARKS. Goodwill and There is another sort of property, if property it can be trade marks. i . i called, of a nature so exomsively mercantile as to deserve a separate mention. I mean the goodmll of a business, which, though arising from various and often accidental circumstances — such as the situation of a house, the changes in a neighbour- hood, and even the prejudices of customers — ^has heen ofteu recognised in Courts of equity and law as an existing and valu- able interest (a) ; and therefore, when property to which it attaches is sold under their decrees, they will direct that steps be taken to impress the purchaser with a just notion of its value (6). On a dissolution of partnership the goodwill, if any, is sold as partnership assets for the benefit of the partners collectively (c). But where the profits of the business result almost entirely from confidence placed in the personal skill of the party employed, as (a) " Goodwill, I apprehend, must Sebastian on Trade Marks, 2nd ed. mean every advantage — every positive 271. advantage, if I may so express it, as The assignment of a goodwill and contrasted with the negative advan- business conveys the exclusive right as tage of the late partner not carrying between the vendor and the purchaser on the business himself — that has been to use the trade name under which the acquired by the old firm in carrying business was carried on : Levy v. on its business, whether connected Walker, 10 Ch. D. at p. 448, per with the premises in which the busi- James, L. J. It is recognised as part- ness was previously carried on, or nership assets: Smith v. Everett, 27 with the name of the late firm, or Beav. 446 ; Mellersh v. Keen, 28 Beav. with any other matter carrying with 463 ; Ball v. Barrows, 4 De G. J. & it the benefit of the business." Per S. 150. Wood, V.-C, in Chwrton v. Douglas, [b) Cook v. Collingridge, Jac. 607; John, at p. 188, cited hy Jessel, M. R., in and note to CoUyer on Partn. p. 216. Gineai v. Cooper, 14 Ch. D. at p. 600. («) Eeymlds v. Bullock, 47 L. J. Ch. See Steuart v. Gladstone, 10 Ch. D. 773 ; Taylor v. Neate, 60 L. T. 179. at p. 658 ; Reynolds v. Bullock, 47 L. See Stemrt v. Gladstone, 10 Ch. D. J. Ch. 773 ; Cooper v. Metropolitan 626, as to the nature of goodwill of a Board of Works, 25 Ch. D. at p. 479 ; partnership. GOODWILL AND TRADE MARKS. 213 in the case of surgeons or solicitors («?), the goodwill is too Goodwill and insignificant to be taken notice of. By the conveyance of a , 1_ shop the goodwill passes, although not specifically mentioned (e), and the goodwill of trade premises, as distinguished from good- will, the result of personal reputation, passes to a mortgagee (/) . A sale of stock arid goodwill for 60/. requires a stamp, not being a mere sale of goods {g). The sale of a goodwill, in the absence of any express stipula- tion (A) , does not preclude the seller from setting up the same kind of business again in the same neighbourhood (/), if he do not describe himself as setting up the identical busiaess that has been purchased, or interfere with the customers in the old business (A), or a solicitor (/) from soliciting or dealing with (m) the customers of the old business. In Labouchere v. Dawson (w), Romilly, M. E., laid down the law differently, and his view was adopted in G-ineai v. Cooper (o) by Jessel, M. E. This doctrine was subsequently extended by the latter,' in Walker v. Mottram{p), to a sale by a trustee in bankruptcy. But the Court of Appeal held that the doctrine, if correct in a voluntary sale, did not extend to compulsory sales ; and in the later case of Pearson V. Pearson (g), the same Court {Liiidley, L. J., dissenting) held, that the doctrine could not be supported in voluntary sales, and that Labouchere v. Dawson was wrongly decided. Upon the sale of a goodwill it is usual for the vendor to undertake not to carry on the same business within prescribed limits : such a stipulation, if the limits be reasonable according (rf) Arundell v. Bell, 52 L. J. Ch. {h) Rmnie v. Irvine, 7 M. & Gr. 969 ; 637 ; Farr v. Fearce, 3 Madd. 74 ; Cruttwell v. Lye, 17 Vea. 335. Spider V. James, BoUs, M. T. 1830, (») Churton -v. Douglas, John. 176. reported Coll. on Partn. 2nd and 3rd (k) Farr v. Fearce, 3 Madd. 74 ; ed. p. 104 ; Bozon v. Farloiv, 1 Mer. Cruttieell v. lye, 17 Ves. 335 ; Churtm 459. See per Lord Langdale, Whita- v. Douglas, Johns. 176 ; Labouchere v. ker V. Sowe, 3 Beav. 390 ; Austen v. Dawson, L. R. 13 Eq. 322. Boys, 2 De G. & J. 626; 24 Beav. {I) Churton y. Douglas, Johns. 176. 698. (m) Pearson v. Fearson, 14 Ch. D. (e) Chissum v. Dewes, 6 Buss. 29 ; 146. Shipwright t. Clements, 19 W. B. 699 ; (») L. B. 13 Eq. 322. Fearson v. Fearson, 27 Oh. D. at p. 158, (o) 14 Ch. D. 596. per Lindley, L. J. \p) 19 Ch. D. 365. (/) Chissum V. Dewes, supra. (?) 27 Ch. D. 145 (1884). See also (g) South V. Finch, 3 Bing. N. C. 606. Taylor v. Neate, 60 L. T. N. S. 179. 214 MEKCANTILE I'UOPERTY. Goodwill and to the nature of the business, is perfectly valid (r) ; and the cir- 1- cumstance that the restraint is unlimited in point of time will not vitiate it (s). Upon the sale of a lease with such a covenant, there is no implied term that it is to cease at the expiration of the lease, or on the purchaser ceasing by himself or his assigns to carry on the business (t). A somewhat similar right is that to trade marks, i.e., marks intended to denote the makers of articles or certain qualities of goods (u). The sale of a business iuoludes not only the goodwill, but any trade mark belonging to it («). The right to be protected against infringement of trade marks was to a certain extent recognized at common law ; and before there was any legislation on the subject it was well settled that — "When any one adopted a mark so closely resembling the trade mark of the plaintifE that it would be likely to be mistaken for it, and put it on his goods and sold them, knowing that though the persons to whom he sold them were well aware that they were not the plaintiff's make, yet that they were meant to be sold to others who woidd see only the trade mark, and were likely to be deceived by its resemblance to that of the plaintifE, he might be properly found to have knowingly and fraudulently sold the goods as and for the plaintiff's goods : Sykes v. Sykes {y). And, so far, there was no difference between law and equity. But at law it was necessary to prove that an injury had been actually done. In equity it was enough to show that the defendant threatened to do, and would if not prevented do that injury " {%). Trade marks are now regulated by the Patents, Designs, and Trade Marks Act;, 1883 (46 & 47 Vict. o. 57) {a). One at least of the following particulars is required by sect. 64 for a trade mark (6) : — (a.) A name of an individual or firm, printed, impressed, or woven in some partioidar and distinctive manner ; or {r) See ante, pp. 2, 3, and note to [x) Levy v. Walker, 10 Oh. D. 436. Mitchel T. Reynolds, 1 Smith's L. C, {y) 3 B. & C. 541. 9th edit. 430. (s) Lord Blackhum, in Simger Mam- («) mtchcoek T. Coher, 6 Ad. & E. 438 . faeturing Co. v. Loog, 8 App. Gas. p. 30 ; («) Ehea t. Crofts, 10 0- B. 241. Sorthwich v. The Evening Post, 37 Ch. (m) Patents, &o. Act, 1883, s. 64 ; D. 449. Singer Mmufacturing Co. v. Wilson, 3 (a) See Appendix. App. Gas. 376. (i) See sect. 10 of the Act of 1876. GOODWILL AND TRADE MAKKS. 215 ' (b.) A written signature, or copy of a ■written signature, of tlie Goodwill and individual or firm applying for registration thereof as a trade marks. trade mark ; or (c.) A distinctive device, mark, brand, beading, label, ticket, or fancy word or words not in common use (c). Proceedings cannot be instituted for infringement of a trade mark, which can be registered under this Act, unless the trade mark has been so registered (d). Registration under the Act is equivalent to public use of the trade mark (e), and is primA facie evidence of the proprietor's right to the exclusive use of the trade mark (/). After the expiration of five years registration is conclusive, evidence of the right {g), unless the trade mark having been in common use at the time of registration ought not to have been registered {h). Sects. 103 and 104 of the Act (as amended by 48 & 49 Vict. c. 63, s. 6), make provisions for the making of international and colonial arrangements for the protection of registered trade marks. A trade mark may pass to the trustee in bankruptcy as " goods and chattels," unless it owes its sole value to the proprietor's personal skill. It may be assigned and transmitted, but only in connection with the goodwill of the business concerned with the goods to which it relates (i), and trade marks registered as a series can be trans- ferred only as a whole {k). The assignee of a registered trade mark may take proceedings to prevent its use without having registered the assignment (/). Being of the nature of property, it is immaterial whether a registered trade mark has been frau- dulently or innocently infringed; there is a remedy in either case {m). (o) See as to the former Act, jESiJparie 1875, the registration of which under Stephens, 3 Ch. D. 669 ; and as to the the Act has been refused : Ibid, present law. In re Van Duzer's Trade («) Sect. 75. Mark, 34 Ch. D. 623 ; Watenmm v. {/) Sect. 76. Ayrea, 39 Ch. D. 29 ; In re Arbenz, 35 {g) Sect. 76. See Edwards' Trade Oh. D. 248 ; SeBurgOf/ne'a TradeMark, Marie, 30 Ch. D. 454. 61 L. T. N. S. 39 ; and as to refusal to (A) In re WraggU Trade Mark, 29 register, on the ground of similarity of Ch. D. 551 . name. In reAuttralian Vine Importers, (i) Sect. 70. limited, 41 Ch. D. 278 ; and In re (A) Sect. 66. Dunn's Trade Marks, 41 Ch. D. 439. {l) Ihlee v. Hmshaw, 31 Ch. D. 323. {d) Sect. 77. Unless in the case of (m) Sect. 76 ; Singer Mamifaeturmg a trade mark in use before August 13, Co. v. Wilson, ubi supra. 216 MERCANTILE PROPERTY. Goodwill and Forging or causing to be forged a trade mark registered or protected under the Act, or falsely applying, or causing to be applied, to goods any trade mark or mark so nearly resembling a registered or protected trade mark as to be calculated to deceive, or making or causing to be made any die or instrument for the purpose of forging or being used in forging a registered or protected trade mark, is an offence, and punishable under the Merchandise Marks Act, 1887 (m). («) 50 & 51 Vict. 0. 28, ss. 2, 3. See Appendix. 217 CHAPTEE IV. PROPERTY IN NEGOTIABLE INSTRUMENTS. The eommoii and well-known rule of the law is, that property Property in in a chattel personal cannot, except by sale in market overt, he inBtniments. transferred to a vendee, however innocent, by a party who does not himself possess it (a). The contrary, however, is the case with respect to negotiable instruments, a transfer of which, when in that state in which by law and the usage of trade they accustomably pass from one man to another by delivery, causes the property in them, like that in coin, to pass along with the possession (6), provided that the transferee has been guilty of no fraud (c) in taking them, in which ease he would be forced to bear the loss {d ) . Gross negligence, unless amounting to evidence of mala fides, will not be a sufficient answer when consideration has been given for a biU of exchange or other negotiable security. An instrument is, properly speaking, negotiable when the legal right to the property secured by it is transferable from one man to another by its delivery. Of this description are bills of exchange and promissory notes payable to bearer or indorsed in blank (e), and exchequer bills (/). Such were held a bond, whereby the King of Prussia bound himself and his successors to every person who should for the time being be the holder of (a) See Peer v. Humphrey, 2 Ad. & onus of proof, Ibid, at pp. 627, 628. E. 495 ; Gurney v. Behrend, 3 E. & B. {d) Solomons v. Sank of England, 13 622 ; Whistler v. Foster, 32 L. J. C. P. East, 135, n. ; GUIy. Cubiit, 3 B. &C. 161 ; Miller v. Saee, 1 Sm. L. C. 9th 466 ; Snow v. Peacock, 3 Bing. 406 ed. 491 ; Crouch v. Credit Fancier of Dou-n v. Sailing, 4 B. & C. 330 JSn^rtoMot, L. R. 8 Q. B. atp. 381. Beckwith v. Corral, 3 Bing. 444 (b) See Grant v. Vaughan, 3 Burr. Fasleyv. Crockford,WSaig. 2iZ; Burn 1616; Lang v. Smyth, 7 Bing. 284; v. Morris, 2 C. & M. 579; Saynesy. Gorgier v. Mieville, 3 B. & C. 45. Foster, 2 G. & M. 237 ; Fancotiri v. (c) Goodman v. Harvey, 4 Ad. & E. Bull, 1 Bing. N. C. 681 ; Seal v. Dent, 870 ; Ulher v. Rich, 10 Ad. & E. 784 ; S Moore, P. C. Ca. 319. Paphaely. Bank of England, 17 C. B. (c) See below. ' 161 ; Jones V. Gordon, 2 App. Gas. at p. (/) Jlrnndao v. Barnett, 6 M. & G. 628, per Loi-d Blackburn; as to the 630; 12 CI. & F. 86. 218 MERCANTILE PROPERTY. Property in the bond, and which was proved to be usually negotiated in the ^\^^enta. EngUsh market by delivery {g) ; and scrip in a foreign loan, also shown to be in this country negotiable by delivery, according to the custom of merchants (A). On the other hand, Prussian Consolidated 4J per cent, bonds, proved to be negotiable //* Prussia, were held not to be so here in the absence of any custom in this country (i). " The common law of England does not a,Uow a party to a contract to transfer his right under the contract to another person, except in certain cases. Such a transfer of a chose in action could, of course, be made xmder the provisions of a statute : and in the case of instrum.ent8, which by the custom of merchants, recognized by the law of England, had become negotiable instruments. But it appears to me that in order to estabUsh such an exception to the common law rule, some custom of merchants obtaining in this country must be proved, or some English statute must be relied upon"(^). According to the judgment of Cockhurn, 0. J., in Goodwin v. Bolarts (l), and apparently according to the opinion of the Court of Appeal in Picker v. The London and County Banking Co. (w), the custom of merchants may maie any instrument negotiable. But that is at variance with the opinion expressed by Blackburn, J., in ' Crouch v. Credit Fonder {n), which, though often doubted, has never been expressly overruled, The plaintiff had purchased for value without notice a deben- ture issued by the defendants from a person who had stolen it. It was held that it was not competent to the defendants to attach to the instrument the incident of negotiability; the alleged custom being of recent origin did not make the instrument negotiable. "Incidents," says Blackburn, J., " whiqh the parties are com- petent by express stipulation to introduce into their contracts, may be annexed by custom, however recent, provided that it be general, on the ground that they are tacitly incorporated in the contract. If the wording of an instrument is such as to exclude this tacit {gj Gorgier v. MievilU, 3 B. & C. 45. [k) Ibid, at pp. 617, 518, per Lord \h) Goodwin v. Sobarts, L. R. 10 Ex. Mher, M. R. 337 ; 1 App. Gas. 476 ; Sim&allv.Me- {I) L. R. 10 Ex. 837 ; 1 App. Cas. tropoUtan Bank, 2 Q. B. D. 194. 476. (i) Picker v. London and Count}/ Bank- {»») Supra. ing Co., 18 Q. B. D. 615. («) L. E. 8 Q. B. 374. NEGOTIABLE INSTRUMENTS. 219 incorporation, no usage can annex tlie incident. But -where the Property in incident is of such a nature that the parties are not themselves ^egatiahle ^ , , . ■ instnunenta. competent to introduce it by express stipulation, no such incident can be annexed by the tacit stipulation arising from usage. It may be so annexed by the ancient law merchant, which forms part of the law, and of which the Courts take notice. Nor, if the ancient law merchant annexes the incident, can any modem usage take it away. Thus, in Hdte v. East India Co. (o) there was a verdict of the jury, founded on strong evidence, that, according to usage in London, an indorsement to an indorsee by name without any further words was restrictive ; but the Court of King's Bench decided that the evidence should not have been admitted, the law merchant being known to the Court to be that it was not restrictive. And in Partridge v. Bank of England ( p) there was the exact con- verse. There the dividend warrants of the Bank of England were in the form of cheques payable to a particular person, Partridge, without any words to make them transferable, which, therefore, were by the general law merchant not transferable. The Court of Exchequer Chamber gave judgment non obstante veredicto, on a plea on which it had been found that by custom for sixty years such dividend warrants were negotiable. We have already intimated our opinion that it is beyond the competency of the parties to a contract by express words to confer on the assignee of that contract a right to sue in his own name. And we also think it beyond the com- petency of the parties by express stipulation to deprive the assignee of either the contract, or the property represented by it, of his right to take back his property from any one to whom a thief may have transferred it, even though that transferee took it bond fide and for value. As these stipulations, if express, would have been in- effectual, the tacit stipulations implied from custom must be equally ineffectual." But it may be doubted whether these observations would strictly be followed. Apparently if an instrument, for example, scrip, purporting or representing that it passes from hand to hand by delivery, is deposited with an agent who passes it to a h(ynA fide holder for value, the owner will be estopped from denying that the security is, what it appears to be, nego- tiable (r). (o) 2 Burr. 1216. 476 ; Sumball v. Metropolitan BanJc, 2 (jp) 9 Q. B. 396; 15 L.J. Q. B. Q. B. D. 194; The Earl of SheffleU 395. 1. London Joint Stock Bank, 13 App. (r) Oootkxin v. Soiarts, 1 App. Cas. Cas. 333. But see Fine Art Society 220 Property in negotiable instruments. MERCANTILE PROPEBTY. I call those instruments negotiable, Ly delivery of wMeli the legal right to the property which they secure may be conveyed. For there are other instruments (s), which, though saleable in the market by the usage of merchants, can yet only be put in suit in the name of the original contractee, and are not, properly speaking, negotiable. Bills of lading, dock warrants, delivery orders and wharfingers' certificates are sometimes called negoti- able ; and by custom and statute law they have acquired some of the incidents of negotiability. But, as wiU be subsequently pointed out, they do not possess all. Instruments which in one state would be negotiable, may, by being put into another, cease to be so. Thus, though a bill or note will be negotiable if in- dorsed in blank, yet the holder may, by a special or restrictive indorsement, determine its negotiability {t). So a cheque may be rendered not negotiable by crossing (m). By 24 & 25 Vict. c. 96, s. 100, negotiable securities are excepted from the general rule as to the restoration of stolen property on the conviction of the thief. T. Union Bank of London, 17 Q. B. D. 705. The following is a list of the chief decisions on the subject : — Instett- MENTS HELD Neootiable : Milhr V. Mace, 1 Burr. 452 (bank notes) ; and see the notes to that case, 1 Smith's Leading Cases, 9th ed. 491 ; Solomons v. Sank of England, 13 East, 135 ; Grant \. Vaughan, 3 Burr. 1516 (cheques on bankers) ; Gollinsir. Martin, 3 B. & P. 649 ; Feaeock v. Rhodes, Dougl. 636; Wookey v. Fole, 4 B. & Aid. 1 (exchequer bill in blank) ; Lang V. Smyth, 7 Bing. 284 (Neapolitan bonds, with coupons to bearer) ; Good- win V. Mobarts, I App. Cas. 476 (scrips of foreign loan) ; Sumiall v. Metro- politan Bank, 2 Q. B. D. 196 (scrip certificates) ; London ^ Co. Bank v. London # Siver Plate Bank (1889), 61 L. T. N. S. 37 (Egyptian bonds, &c.). Not Neootiable: Gh/n v. Baker, 13 East, 609 (East India bonds before the statute of 51 Greo. 3, u. 64, B. 4) ; Taylor \. Kymer, 3 B. & Ad 321 ; Partridge v. Bank of England, 9 Q. B. 396 (dividend warrants); Dixon V. Bovill, 3 Maoq. 1 (iron scrip notes) ; Crouch v. Credit Fonder Co., L. E. 8 Q. B. 374; London and County Banking Co. , Limited v. London and River FMeBank, 20 Q. B. D. 232 (share certificates of an American rail- way witha blank po-wer of transfer) ; Colonial Bank v. Sepworth, 36 Ch. D. 36 ; Williams v. Colonial Bank, 38 Ch. D. 388 (share certificates with blank indorsement) ; Picker v. London and County Banking Co., 18 Q. B. D. 516 (Prussian Consolidated Bonds). Com- pare the remarks of Lindley, L. J., in Williams v. London Chartered Bank of Australia, 38 Oh. D. at p. 406. («) See Glyn y. Baker, 13 East, 509 ; Crouch v. Credit Fancier of England, L. E. 8 Q. B. 374 ; Taylor v. Kymer, 3 B. & Ad. 321; Taylor t. Trmrnan, M. & M. 463 ; Thompson v. Doming, 14 M. & W. 403 ; Partridge v. The Bank of England, 9 Q. B. 396. See Ford v. JSopkins, 1 SaJk. 283 ; Ekbis v. Mack- lish, Ambl. 184 ; and Turner v. Cruik- shank, there cited. (<) Sigourney v. Lloyd, 8 B. & C. 622 ; Bills of Exchange Act, ss. 34, 35. [u] Bills of Exchange Act, ss. 76-81. 221 BOOK THE THIRD. MERCANTILE CONTEACTS. OHAPTEE I. BILLS OF EXCHANGE AND PROMISSORV NOTES. Sect. 1. Their Definition, Requisites, and Form. 2. Parties to. 3. Negotiation of. 4. Acceptance. 5. Presentment. 6. Notice. 7. Payment. 8. Resistance against Payment. 9. Foreign Bilk. 10. Remedy on lost Bills and Notes. Section I. — Their Definition, Requisites, and Form. An Act to codify the law relating to biQs of exchange, Their cheques, and promissory notes (The Bills of Exchange Act, r^msite"' 1882, 45 & 46 Vict. o. 61), was passed on the 18th August, °°'^^°"°' 1882, and came at that date into operation. It includes the greater portion of the common and statute law relating to the subject, and it assimilates the law of England and Scotland. Some new terms, such as "holder in due course " (sect. 29), are introduced and defined. The statute makes a few alterations in the law, and it sets at rest several doubtful points. Except so far as inconsistent with the express provisions of the Act, the rules of the common law continue to apply {a). {a) Sect. 97 (2). See as to the con- and County Bank y. Walker, 11 Q. B. D. struotion of the statute, Lord Black- 84 ; and Vagliano v. Bank of England, burn in McLean v. Clydeadale Banking see infra. Co., 9 App. Gas. at p. 106 ; and Leeds 222 MERCANTILE CONTKACTS. Their definition, requisites, and form. A bill of exchange is defined as foUows : — " A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer " (i). He who makes or gives the order is called the drmcer ; he to whom it is addressed to pay is called the drawee, and, if he accepts it in the manner specified in sect. 17 of the Act, the acceptor. Bearer is defined by sect. 2 as " the person in pos- session of a bill or note which is payable to bearer " ; " holder " is defined by sect. 2 as " the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof," and " holder in due course" by sects. 29 (1) and 30 (2), "as on,e who has taken a biU complete and regular on the face of it, before it was overdue and without notice that it had been previously dishonoured, in good faith and for value, and without notice at the time the bUl was negotiated to him of any defect in the title of the person who negotiated it." A promissory note is thus defined : — " An unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand or at a fixed or determinable future time a sum certaiu in money, to or to the order of a specified person or to beaxer. " An instrument in the form of a note payable to maker's order is not a note within the meaning of this section, unless and imtil it is indorsed by the maker "(c). He who promises to pay is called the inaker, he to whom the promise is made the payee. A bank note is a promissory note issued by a banker and payable on demand {d). A cheque is defined to be " a bill of exchange drawn on a banker payable on demand" (e). Bills of exchange derived their peculiar properties from the custom of merchants; promissory notes from the stat. 3 & 4 Ann . (i) Sect. 3 (1). See Vaglicmo v. Sank ofMglmd, 23 Q. B. D. p. 247. («) Sect. 83 (1). [d) As to the differences between bankers' notes and promissory notes, see Lichfield Union v. Greene, 26 L. J. Ex. at p. 142 ; Zeeds and Comiy Bank V. Walher, 11 Q. B. D. 84. (e) Sect. 73. BILLS OF EXCHANGE AND PKOMISSOKY NOTES. 223 c. 9(/), which placed them on the same footing with hills of Their exchange. That Act was passed in consequence of the refusal requisites', of Lord Holt, C. J., to concede to the custom which had sprung up °"°' among merchants, of treating promissory notes as negotiahle, the effect which would, at a somewhat later period, prohahly have been attributed to it. His Lordship, departing, perhaps, some- what from that excellent good sense which usually characterised him, treated the endeavour to uphold the negotiability of notes with some indignation, saying that it proceeded from the obstinacy and opinionativeness of the merchants, who were endeavouring tp set the law of Lombard Street above the law of Westminster Hall(g'). Although a promissory note, while in its original shape, bears no resemblance to a bill, yet when indorsed it is similar to one; for then it is an order by the indorser of the note upon the i maker to pay to the indorsee. The indorser is, as it were, the I drawer ; the maker, the acceptor ; and the indorsee, the payee. (A). The reader, bearing this similitude in his mind, and the exceptions stated in sect. 89 (3), will easily be able to apply to notes the decisions hereinafter cited concerning bills, and vice versd. Sect. 55 (1), states that the drawer of a bill by drawing it — " (a) Engages that on due presentment it shall he accepted and paid according to its tenor, and that if it be dishonoured, he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken ; " (b) Is precluded from denying to a holder in due coui-se the existence of the payee and his then capacity to indorse." If the drawee refuse to accept, the contract is broken, and the Statute of Limitations begins to run from that period (»), for the {/) Repealed: 45 & 46 Viot. o. 61, v. Mather, 2 Cr. & J. at pp. 262, 263. s. 96. (i) Whitehead v. Walker, 9 M. & W. ig) Gierke v. Martin, 2 Ld. Raym. 506. In one case, Cooper v. T^trner, 2 757. See remarks of CocWum, C. J., Stark. 497, the lapse of thirteen years in Goodwin v. Moiarts, L. R. 10 Ex. was held sufficient to raise a presmnp- at p. 349. tion of the claim being satisfied. But (A) Sect. 89(1); Bee Seylt/ny. Adam- this is not a presumption of law: son, 2 Burr. 669 ; Carlos v. Fancourt, 5 Brown v. Rutherford, 14 Ch. D. p. T. R. 482 ; and Tindal, C. J., in Gibb 690. 224 MERCANTILE CONTRACTS. Their definition, requisites, and form. engagement is not a double one ; first, that the drawee shall accept upon presentment for acceptance ; and secondly, pay upon presentment for payment ; but single, namely, in the case of a bin payable after sight, that the drawee shall, upon the bill being presented to hiTn in a reasonable time after date, accept the same, and having accepted, shall pay it when duly presented for payment {k) ; and in the case of a bill payable after date, that the drawee shall accept it, if it is presented to him before the time of payment, or if it is not presented for acceptance at all, then that he shall pay it when duly presented for payment [1). Time runs in fayour of an indorser or drawer from the time when he becomes liable to an action at the suit of the holder, that is, in general, when notice of non-acceptance or non- payment is given. In the case of a cheque payable on demand or undated, time runs from the date when it is given {m). But when a note is payable three months after demand or notice, time runs from the date at which it is payable. With reference to a note payable three months after demand, the Court of Appeal decided that the admission by the payee of the receipt of interest was an acknowledgment that money was payable, and that there had been a demand, and that the statute ran from the date of the payment of the interest (w). No particular form of words is required to constitute a bill or note (o) ; and, if it appear doubtful for which of the two any instrument was intended, it may be treated as either {p). But there must be an order or promise to pay — the mere acknowledg- ment of a debt, such as an I U, is not a promissory note (g) ; (k) In re Boyse, 33 Ch. D. at p. 623. (tj Ibid. ; Whitehead v. Walker, 9 M. & W. 506. ()») Castrique v. Bernalo, 6 Q. B. 498 ; Robinson t. Haiokaford, 9 Q. B. 62 ; In re Bethell, 34 Ch. D. 561 ; Tlwrpe .V. Coombe, 8 D. & R. 347 ; Broddelius v. Grisehotti, 14 So. Sees. Cas. 4th series, 636. [n] Brown t. Buthm-ford, 14 Ch. D. 687. (o) Cha^iek v. Allen, Str. 706 ; Morris v. Lee, Ld. Raym. 1396 ; Str. 629 ; Shuttleworth v. Stephens, 1 Camp. 407 ; Gray v. Milner, 8 Taunt. 739 ; Starke T. Cheeseman, Carth. 609 ; Behers V. Harriot, Show. 163 ; Robinson v. Bland, 2 Burr. 1077; Sidoutv. Bristote, 1 C. & J. 231 ; Cfreen v. Davies, 4 B. & 0. 236 ; Block v. Bell, 1 M. & E. 149 ; Ellison v. CoUingridge, 9 C. B. 670 ; In re Imperial Land Co. of Mar- seilles, L. R. 11 Eq. 478. {p) Edis T. Bury, 6 B. & 0. 433. See Dickenson v. Teagae, 4 Tyr. 450 ; Block V. Bell, 1 M. & Rob. 149 ; Lloyd V. Oliver, 18 Q. B. 471. [q] Fisher v. Leslie, 1 Esp. 426; BILLS Ol' EXCHANGE AND PKOMISSOKY NOTES. 225 nor does a supplication to the drawee tliat he will pay, amount Their to a bill of exchange : for that purpose there must he an order (r). requisites', Again, it must he for the payment of money alone (s). Thus, an ^"'^ ^°"°- order or promise to pay " in cash or Bank of England notes," was formerly held insufficient {t). And that money must be a Childera v. Soulnoia, 1 Dowl. & R. N. P. C. 8 ; JEllis V. mUs, Gow, 216 ; Israel V. Israel, 1 Camp. 499. In CasMorne T. Dutlon, Selw. N. P., 13th edit. .329, the following instrument was, after solemn argniment, held to be a good note : — "I do acknowledge, myself to be indebted to A. in £ to be paid on demand for value received." The words to be paid being held to amount to a promise to pay. ' ' I have received the imperfect books, which, together with the cash overpaid on the settlement of your account, amounts to 802., which sum I will pay in two years," was held to be a note : Wheatley v. Williams, 1 M. & W. 533. "John Mason, 18th February, 1836, borrowed of his sister M. A. M., the sum of \il. in cash as per loan, in promise of payment of which I am truly thankful for and shall never be forgotten by me, John Mason, your affectionate brother, 14?." Held to be « note : Ellis v. Mason, 7 Dowl. 598. But " I have received the sum of 20?. which I borrowed from you, and I have to be account- able for the said sum with interest," was held to be an agreement, not a note : Borne v. Sedfeam, 4 Bing, N. C. 433. So, " 11th November, 1839. " I IT 45?. 13«., which I borrowed of Mrs. Melanotte, and to pay her five per cent, till paid. " Robert Teasdale," was held not a note, and not to require a stamp as an agreement : Melanotte v. Teasdak, 13 M. & W. 216 ; S. P. Cory V. Davis, 14 C. B. N. S. 370. " Memorandum. Mr. Sibree has this day deposited with me 500?. on S. — VOL. I. the sale of 10,300?. 3 per cent. Spanish, to be returned on demand. "James T.Tripp," was held not to be a note : Sibree v. Tripp, 15 M. & W. 23. And see White V. Mrth, 3 Exch. 689. " nth September, 1839. " I undertake to pay to Mr. Robert Jarvis the sum of 6?. is. for a suit of clothes ordered by Daniel Page. " S. W. WilMns." Held a guarantee, not a note : Jarvis V. Wilkins, 7 M. & W. 410; Baron Parke said, that had " supplied^' been inserted instead of ' ' ordered " it would have been a note. " At twelve months after date I promise to pay E. & Co. 500?., to be held by them as a collateral security for any monies now owing them by J. M., which they may be unable to receive on realizing the securities they now hold, and others which may be placed in their hands by him." Held not a note : Robins v. May, 11 Ad. & E. 213. See further. Brooks V. Mkins, 2 M. & W. 74, and Mortgage Ins. Corp. Limtd, v. Commissioners of I. Revenue, 21 Q. B. D. 352. {r) Sect. 3 (1). Little v. Slackford, M. & M. 171. A mere authority to pay is not a bill : Norris v. Solomon, 2 M. & Rob. 266 ; Russell v. Frnvell, 14 M. & W. 418. And see Samilton V. Spottiswoode, 4 Exch. 200. But see Lloyd y. Oliver, 18 Q. B. 471. («) Sect. 3 (1). Martin v. Chauntry, Str. 1271 ; Moor v. Vanlute, B. N. P. 272 ; Hx parte Imeson, 2 Rose, 225 ; Ex parte Davidson, Buck. 31 ; R. \. Wilcox, Bayl. 6th edition, p. 1 1 ; Bol- ton V. Dugdale, 4 B. & Ad. 619. (i) Ex parte Imeson, 2 Rose, 225. But now see 3 & 4 Will. 4, u. 98, c. 6, 226 MERC'ANTn.E CONTBACTS. Their definition, requisites, and form. certain sum : for a promise to pay J. E. " 65/., with all other sums that may be due to him," or to pay 13/., and all fines . according to rule, is not a promissory note (u). Moreover, the money must be payable unconditionally. If it contain any condition precedent, or defeasance, or be payable at an uncer- tain time, or out of an' uncertain fund, it is no biU or note («). In one case on this subject, the instrument was in the following form : — "£1,200. " Warrington, itk March, 1824. " On demand, we promise to pay to Mr. George Clarke, or his order. Twelve Hundred Pounds, for value received in stock of ale, brewing vessels, &c., this being intended to stand against me, the undersigned Mary Perceval, as a set-ofE for that sum left me in my father's will above my sister Ann's share. Thomas Perceval. ("Witness) William Hall. Mary Perceval." It was held that the 1,200/. was not payable at all events, and the instrument therefore not a promissory note {y). " An order to pay out of a particular fund is not unconditional (z) within the meaning of this section (sect. 3) ; but an imqualifled order to pay, coupled with an indication of a particular fund out of which the drawee is to reimburse himself, or a particular account to be debited with the amount, or a statement of the transaction which gives rise to the bill, is unconditional" (o). An order by B. to the Bank of England " Please pay to my order the sum of 7,000/. sterling, which sum is on account on continued by 7 & 8 Vict. .;. 32, «. 27, ■which makes Bank of England notes legal tender. («) Smith V. Nightingale, 2 Stark, 375 ; Ayrey v. Fearnsides, 4 M. & W. 168. («) Sect. 3 (1). CoUhan v. OooJce, "Willes, at p. 396 ; Appleby v. Md- dulph, B. N. P. 272; Itoberts t. Peake, Burr. 323; BeardsleyY. Saldwin, Str. 1151 ; Josselyn v. Lacir, 10 Mod. 294, 316 ; ffaydooh v. Lynch, Lord Raym. 1563 ; Dawlees v. Seloraine, W. Bl. 782 ; Jenny v. Serle, Lord Eaym. 1361 ; Str. 591 ; SiU v. Balford, 2 B. &P. 413 ; Leeds -v. Lancashire, 2 Camp. 204 ; Rartley v. Wilkinson, 4 Camp. 127 ; 4 M. & S. 25 ; JTinianmn v. Bennett, 2 Camp. 417; Crowfoot v. Gumey, 9 Bing. 372 ; Clarke v. Per- cival, 2 B. & Ad. 660 ; Worley v. Sar- rison, 3 Ad. & E. 669 ; WheatUy v. Williams, 1 M. & W. 633 ; Brury t. Macaulay, 16 M. & W. 146 ; Moffat v. Edwards, Car. & M. 16 ; Alexander v. Thomas, 16 Q. B. 333 ; Crouch v. Credit FoncUr of England, L. R. 8 Q. B. 374. [y) Clarke v. Percival, 2 B. & Ad. 660. See also Robins v. May, 11 Ad. &E. 213. («) Ex parte Moss, 14 Q. B. D. 310. (a) Sect. 3 (3) ; In re Boyse, 33 Ch, D. 612. BILLS OV EXCHANGE AND PROMISSOUY NOTES. 227 the dividends and interest due on the capital and diTidends Tteir , „^ jTjjj defimtion, registered in the books (of the Bank) in the name ot O. and ±5., requisites, was held a hill of exchange (i). '. — An order by the freighter of a ship to pay money on account of freiijM{c), an order to pay so much as the drawe/s quarterns half-pay hy advance (d), or to pay 25/., a portion of value deposited as semrityfor the payment thereof {e), cir I promise to pay M. A. on demand £ by giving up clothes and papers (/), or as per memorandum of agreement (g), or when J. S. comes of age, to wit, June 12, 1750 (A), or six weeeks after the death of A. B. If), — have been held payable at aU events, and therefore good ; for, to use the words of Willes, 0. J., iu the last case, " If a bill of exchange be made payable at never so distant a day, yet if it be a day that must come, it is no objection to the biU." Therefore a note payable within two months after his Majesty's ship A. B. shall be paid off, is good ; for, it is said, the pay- master beiag Q-ovemment, it is morally certain that payment will be made(/i;). Sect. 88 provides that the maker of a note by making it engages that he wiU pay it according to its tenour ; and he is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse. A bill of exchange must be iri writing, which the interpreta- tion clause of the Act declares includes print (/). It may be partly written or partly printed or wholly printed. The signa- (i) In re Soj/ae, 33 Ch. D. 612. (/) Dixon v. Niettall, 6 C. & P. 320. (c) Fierson v. Dunlop, Cowp. 571, See also Shenton v. James, 5 Q. B. 199 : for it admits so much freight to he Fox v. Frith, Car. & M. 502. due. It was held that an. order from (g) Jury v. Barker, E. B. & E. 459. the owner to the freighter to pay so But it did not appear that the agree- much on account of freight, is no bill : ment rendered the payment uncertain. Banbury v. Lisset, Str. 1211. But this (A) Goss v. Nelson, Burr. 226. case seems irreconoileable with Griffin (i) Colehan t. CooTce, Willes, 393 ; L. R. 3 Q. B. 753, Mffey r. Greenwell, 10 Ad. & E. 222. where an order to pay so much "on [k) Andrews v. Franklin, Str. 24; account of moneys advanced by me for Colehan v. Cooke, WUlea, 399. But see the Isle of Man Slate Quarry, &o.," s. 11 (2). " I promise to pay, or cause was held to he a bill of exchange. to be paid," is a good note, the two {d) M'CUod V. Snee, Ld. Kaym. expressions meaning the same thing : 1481. iMvell V. BiU, 6 C. & P. 238. (e) SaussoiiUier\. Bartsinnk,'J'V.'R. (I) Sect. 2. 733. 228 MERCANTILE CONTRACTS. Their ture of any person signing a Mil may be by a mark (»»). A TCq^ritesI ~ person signing need not do so with bis own band ; it is suflacient and form. jf ^j^g signature is written on tbe bill by another person by or under his authority; and in the case of a corporation it is sufficient that the instrument be sealed with the corporation seal («). An instrument is not the less a note because it contains a memorandum that the maker has deposited title deeds with the payee as a collateral security (o). But an instrument, the effect of which was — I promise to pay 600?. by instalments, and I agree to set off 951., was held not to be a note ; for besides its complexity, the 951. could not be payable to an indorsee (jo). "An instrument expressed to be payable on a contingency is not a bill, and the happening of the event does not cure the defect "(y). " ( 1 ) When a bill contains words prohibitin g transfer, or indicating an intention that it should not be transferable, it is valid as between the parties thereto, but is not negotiable " (r). " (4) A bill is payable to order which is expressed to be so payable, or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it should not be transferable." This adopts the rule of Scotch law on the subject. Before the Act a bill or note without the addition of words authorizing transfer was not negotiable («). "Where abUl purports to be indorsed conditionally, the condition - naay be disregarded by the payer, and payment to the indorsee is valid whether the condition has been fulfilled or not" (t). This alters the old law, according to which an indorsement, if written on a bill or note at the time of making it, and rendering it payable only on certain conditions, deprived it of the character of negotiability, and turned it into an agree- (m) George v. Surrey, M. & M. 516 ; {p) Bavies v. Wilkinson, 10 Ad. & Saher v. Dening, 8 A. & E. 94. E. 98. W Sect. 91 (2). {q) Seot. 11. (o) Seot. 83 (3) ; TTise v. Charlton, i (c) Seot. 8 (1). Ad. & E. 786 ; Fancourt v. Thorne, 9 (s) Flimley v. Westley, 2 Bing N C. Q. B. 312. 249. [t) Sect. 33. BILLS OF EXCHANGE AND I'ROMISSOIIV NOTES. 229 ment as between the parties privy to it(M). The indorsement Their . „ „ , 1. £ ix. definition, on a note oi a mere reierenee to an agreement lor the purpose requisites, of earmarking it as the note named in that agreement, does a-nd form. not make it conditional (v). Nor can such an instrument ever be rendered conditional by a contemporaneous parol agreement ; for it is one of the first principles of the law of evidence, that oral testimony shall never be permitted to vary or contradict the terms of any written contract (a^). A written contempora- neous agreement, also, by the payee with the makers and third persons, that payment shall be postponed, will not control the operation of a note {p). But it may be shown, as between the immediate parties to the biU and others than a holder in due course, that the delivery was conditional for a special purpose only, and not with the intention of passing the property (s). Although conformity with one of the above definitions is in general strictly required, yet if a word be fraudulently inserted by the maker or drawer, in order to prevent the instrument from acquiring the legal properties of a bill or note, as where the maker of a note worded it thus — " I promise not to pay," the Court will reject the word so fraudulently introduced, and read the instrument without it {a) . "(1) An inland bill is a bill which is, or on the face of it purports to be, both drawn and payable within the British Islands, or drawn within the British Islands upon some person resident therein. Any other bill is a foreign bill" (5). («) HobcHson V. Kensington, 4 Tavrnt. cited by Lord Iluiihoicke in Simpson v. 30 ; Leeds v. Lancashire, 2 Camp. 205. Vaughan, 2 Atk. at p. 32 ; Bayley, 6th iy) Brill v. Crick, 1 M. & W. 232. edit. p. 6 ; Allan v. Mauson, 4 Camp. See CholmeUy v. BarUy, 14 M. & W. 1J5. 344. (J) Sect. 4 (1), which reproduces the (x) Foster v. Jolly, 1 C. M. & R. repealed 19 & 20 Vict. o. 97, s. 7. This 703 ; Beiant v. Cross, 10 C. B. 895. does not regulate the stamp, as to [y) Webb v. Spicer, 13 Q. B. 886 ; which, see post. Griffin v. Weatherhy, Salmon y. Webb, 3 B.. Ij. Ca. 510; Abrey L. E. 3 Q. B. 753, in which a bill V. Crux, L. R. 6 C. P. 37. And drawn in Scotland upon a resident in see Fordy. Beech, 11 Q. B. 852. ,But the Isle of Man was held to be a now it will afford a good defence foreign bUl in the sense of the against a party to, or cognizant of it. Stamp Act. Before that Act, a bUl when he took the note. ' drawn in England on a person resid- (s) Sect. 21 (2) ; Castrique v. Butti- ing abroad, but payable in England, gieg, 10 Moore, P. C. 94. was an inland bill: Amner v. Clarke, {a) Sect. 64. Per Lord Maccleajield, 2 C. M. & R. 468. 230 MEKCANTILE CONTRACTS. Their definition, requisites, and form. FOKM OF AN INLAND BILL OF EXCHANGE. £100 : : London, January 1, 1889. At sight, [or on demand, or at days after [Stamp.] sight, or at days after date'], pay to Mr. , or order [or hearer], One Hundred Pounds, for value received. John Wood. To Mr. Thomas Jones, Merchant, at Liverpool. FOKM OF A PROMISSORY NOTE. £100 : : London, January 1, 1889. Two months after date I jiromise to pay to [Stamp.] Mr. , or order, One Hundred Founds, for value received. John Wood. The principal parts of these instruments are the amount, stamp, date, time for payment, place of payment, designation of payee, name of drawer, and name of drawee. We ■will consider these in order. Amount. — \i is usual to specify this in figures on the upper left-hand comer of the instrument as well as in writiag in the hody. Where a difference appears between the words and figures, the" Act (6) states, in accordance with the decision of the Court of Common Pleas in Saunderson v. Piper («), that the sum denoted by the words is the amount payable. A bill of exchange may now be drawn for any amount; 48 G-eo. 3, c. 88, s. 2, which made void all negotiable bills or notes made in England, if for less than 20s., is repealed by the second schedule of the Bills of Exchange Act. A promissory note for less than 201. must by 7 Geo. 4, c. 6, s. 10, be payable where issued, although it may also be payable elsewhere. And promissory notes in England for less than 5/., if payable to bearer on demand, are void (d). (b) Sect. 9 (2). (c) 5 Bing. N. C. 426. See Gar- rard T. Lewis, 10 Q. B. D. 30 ; Butky •V. Mnnhall, 46 L. T. N. S. 186, as to effect of marginal words in bills. (d) See Chalmers on Bills of Ex- change, 3rd ed. p. 244. BILLS OF EXCHANGE ANU PROMISSOKY NOTES. 231 Stamp. — The stamp is an essential part of every inland bill Their and note, and formerly though a note purported to have been requisiteBl drawn abroad, and were in the hands of an innocent holder, yet ^"'^ ^™'"' any party might show that it was actually made in this coimtry, and insist upon the want of a stamp (•) Sect. 45 (4) (e). (o) Sect. 14 (3); Campbell v. French, («) Sect. 45 (4) (d). 6 T. E. 200. ^ [t) Sect. 87 (3). Baehe v. OampUll, (p) Sect. 45 (4) (a). 3 Camp. 247. 236 MERCANTILE CONTRACTS. Their Designation of Drawee and Payee. — The drawee and payee requisitesl must be named, or otherwise indicated with reasonable cer- and form. _ tainty(^). A bill or note may be drawn payable to a par- ticular individual, or to a particular individual or his order, or generally to the bearer. Formerly, if an instrument were made payable to an individual without further words, it was not nego- tiable. But now a bill expressed to be payable to a specified individual is payable to him or his order, in the absence of the words indicating an intention that it should not be trans- ferable (m). If it be so payable to an individual, he may transfer his right to a third party by indorsing his name upon it (») ; if to hearer generally, or to a specified individual or hearer, it may be transferred by mere delivery ; and in the last case it matters not, though the individual named never existed, and could not possibly exist. Thus, a draft payable to the ship For- tune or bearer is negotiable by delivery {x). Where the bill is not payable to bearer, the payee must be named or otherwise indicated therein with reasonable certainty (y). If payable to a fictitious person or non- existing person (z) or his order, al- though no order can be made by the payee who is not in existence, yet if the iustrument be issued into the world with an indorsement in blank (the nature of which will presently be explained), purporting to be made by such fictitious or non- existing person, it vdU, as against the drawer or maker, be considered payable to bearer; and so will a bill drawn iu a fictitious name, as against an acceptor, who is precluded from denying the existence of the drawer (a). Explaining sect. 7, [t) Sect. 6 (1) : iJ. v. Box, 6 Taunt. Jaques, L. R. 1 Q. B. 376." 326 ; Scares v. Glyn, 8 Q. B. 24. (z) Yaglimo v. BanTc of Mnglmd, («) Sect. 8 (4), (5). supra. {v) An instrument payable to the [a) Sect. 7 (3) and s. 54 : Tatlock v. maker's order is valid: Flight v. Harris, Z T. R. 174; Vere v. Lewis, Maclean, 16 M. & "W. 61; and, Id. 182; Minet y. Gibson, Id.. iSl ; 1 if "endorsed in blank, it is payable H. Bl. 669 ; Fhillips v. Im Thurn, to bearer: Wood v. Mytton, 10 Q. B. L. E. 1 C. P. 464 ; 18 C. B. N. S. 805. 694; Collis v. Bmett, 1 H. Bl. 313; (x) Grant v. Vaughan, Burr. 1616. Ashpitel v. Brpan, 3 B. & S. 474 ; ■'($/) Sect. 7(1); Cowie v. Stirling, Taglianov. Bank of England, sxipra,. 6 E. & B. 333. But see Sohnes v. BILLS OF EXCHANGE AND PllOMISSORY NOTES. 237 sub-sect. 3, which re-enacts the common law, Bowen, L. J., Their . J _ definition, saiCl ; Tequisites, and form. "If the drawer is the person against whom the bill is to be treated as a bill payable to bearer, the term fictitious may be satis- fied if it is fictitious as regards himself — or, in other words, fictitious to his knowledge. If the obhgations of the acceptor are in ques- tion, and the acceptor is the person against whom the bill is to be so treated, fictitious must mean fictitious as regards the acceptor, and to his knowledge" (J). A bill or note may be made payable to two or more payees jointly, or, in the alternative, to one of two or one or some of several payees, or to the holder of an office for the time being (c). A note may be made payable to the trustees acting nnder A.'s will, and parol evidence will be admissible to show who they are, and what the trusts are {d) ; and the same law applies to the case of a bill or note payable to the manager of a bank {e), or other person designated in like manner (/). When a bill of exchange is wanting in any material parti- cular — for example, when the drawer has not inserted the amount, or when the name of the payee is not inserted — the holder has, primd facie, an authority to fill up the blank ; in the former case he may insert any amount which the stamp will cover ((/). In Montague v. Perkins {h) the acceptor was held liable to an indorsee on a blank acceptance fiUed up after the lapse of twelve years. Though the possessor of a bill defective in any material particular has a primd facie authority to fill up the omission any way he thinks fit, this must be done within a reasonable time (for this purpose a question of fact) and strictly in accordance with the authority given. The name may be inserted after the death of the acceptor ; the authority to do so (i) Vagliano v. Bank of England, 23 (e) Sobertson v. Sheward, 1 M. & Gr. Q. B. D. p. 261. ' 511. (c) Sect. 7 (2). (/) Soarea v. Oiyn, 8 Q. B. 24 ; (d) Meggimon v. Sarper, 2 C. & M. Sohnes v. Jaqms, ubi supra. 322; Holmes v. Jaquea, ubi sup. (j) Sect. 20 (1). (A) 22 L. J. C. P. 188. 238 mekcantHjE contracts. Their _ definition, requisites, and form. is not ■withdrawn by death («'). If negotiated to a holder in due course, such an instrument in his hand is effectual for aU . purposes. The hlank stamped paper must he deliyered for the purpose of being made a bill ; delivered for any other purpose, or stolen or lost, such a paper, even if filled up, will he of no effect (k). In Bascendale v. Bennett (M) the defendant gave his hlank acceptance on a' stamped paper, and authorized H. to fill in his name as drawer. H. returned the" blank accept- ance to the defendant in the same state as he received it. The defendant put it into a drawer of a writing table, which was unlocked. The bill was lost or stolen, and C. afterwards, with- out the defendant's authority, filled in his own name. An action on the bill was brought by the plaintiff as indorsee for value. It was held that the defendant was not liable on the biU on the ground, as stated by Bramwell, L. J., that the defendant was not estopped from setting up the true facts, and that if he had been guilty of negligence, it was not the proximate or effective cause of the fraud. Lord Justice Brett arrived at the same con- clusion on the ground that after the acceptance by H. the defendant had never authorized any one to fill in a drawer's name, and that he had never issued the acceptance intending it to be used. A bill may be drawn payable to the drawer himself; and such an instrument may be treated as a bill of exchange or note(Z). And an instrument will not be less a biU, because, instead of being addressed to a particular person, it is ad- dressed to a particular house, at least as far as the person who accepts it is concerned (m), nor because the word at is prefixed to the drawee's name (m) ; but, as has been already stated, the drawee must be named or otherwise indicated in the bill with (j) Sect. 20 (1), (2) ; Carter v. White, 25 Oh. D. 666. (k) Sect. 20 (1). {kk) 3 Q. B. D. 625. {1} Sect. 6 (2) ; Milkr v. Thomson, 3 M. & a. 676, where a bill drawn by a bank on its own branch was treated as a note; and see where it was addressed to the payee, Fielder v. Marshall, 9 C. B. N. S. 606. (m) Grayy.Milner, 8 Taunt.' 739; explained in Feto v. Seymlds, 9 Ex. 410. (m) Shuttleworth-v: Stephens, 1 Camp. 407 ; Allan v. Mawaon, i Camp. 115. See S. V. Sunter, R. & R. C. C. 5U. HILLS OF EXCHANGE AND PROMISSOJIY NOTES. 239 reasonable certainty (o). If a person be so designated, he is the Their only person who can be made liable as acceptor, unless it be for requisites', honour (p). It is not, however, necessary that he should sign in "''^ °''°'' the same name ; and, therefore, if his wife or an agent, autho- rized so to accept, shoidd sign her or his own name, this, it is said, wiU bind the drawee (q) . Name of Maker or Drawer. — The name of the maker or drawer must be inserted or subscribed by himself or his agent {r). As there must be no uncertainty about the payee, so neither must there be about the maker or drawer. Thus a note must not be signed A. B. or else C. B. (s). The name of the drawer may be inscribed before it is certain what will be the exact form of the instrument. A bill or note is deemed to have been made on behalf of a registered joint stock company if it be made in its name (i) by any person acting under its authority, or if it be made by or on behalf or on account of the company by any person acting under its authority. This section confers no power to issue biUs of exchange on companies which have no capacity to do so ; it merely regulates the mode in which companies having such capacity become liable («). (o) Sect. 6 (1). left in doubt by the oases. An acoept- (p) Davisy. Clarke, 6 Q. B. 16 ; or one ance of a bill directed to the company of several drawees, Owen v. Van Uater, by directors in the words: "J. S. 10 C. B. 318; MareY. Charles, 5 E. & and H. T., directors of the B. Co., B. 978; Steele t. McKirhy, 5 App. Limited," was deemed an accept- Cas. at p. 779. See in case of a bill on ance by a company : Okell v. Charles, a limited joint-stock company, 25 & 34 L. T. N. S. 822. On the other 26 Vict. c. 89, s. 42 ; Penrose v. Martijn, hand, ' ' accepted on behalf of the com- E. B. & E. 499, which was decided pany" (Harold v. Connor, 34 L. T. under the corresponding terms of s. 31 N. S. 885), was held to make the ao- of 19 & 20 Vict. c. 47. oeptor personally liable, where the biU (y) Lbidus v. Bradwell, 5 C. B. 583 ; was directed to him. So directors Jenleina v. Morris, 16 M. & W. 877. were held personally liable on a note See sect. 19 (2). in this form : " We, the directors of [r) Sect. 23. the I. S. M. Co., do promise to pay {«) Sect. 3 (1) ; Ferris v. Bond, 4 B. J. D.," signed by the directors with & Aid. 679 ; Maxendale v. Bennett, 3 Q. the company's seal attached : Dution B. D. 625. V. Marsh, L. E. 6 Q. B. 361. (0 26 & 26 Vict. c. 89, 8. 47. What («) Se Peruvian Mys. Co., L. R. 2 is "in the name of the company" is Ch, 617. 240 MERCANTILE CONTRACTS. Their definition, requisiteB, and form. The following is the form of a foreign bill of exchange : — London, January 1, 1890. For Us. 550. Ai sixty days after sight of this first of Exchange {second and third unpaid) pay to the order of Messrs. , Five Hundred and Fifty Rupees, value received of them, and place the same to account. James Hood. To , Calcutta. Foreign bills are usually drawn in sets, that is, copies of the bill are made on separate pieces of paper, each part containing a condition that it shall continue payable only so long as the others remain unpaid, a method which considerably diminishes the chances of losing the bill. The holder whose title first accrues is deemed the true owner of the bill (2). Parties to a bill or note. Section II. — Parties to a Bill or Note, Sect. 22 (1) of the Bills of Exchange Act, 1882, enacts :— " Capacity to incur liability as a party to a bill is co-extensive witli capacity to contract." The incapacity of one or more of the parties to a bill of exchange does not diminish the liability of the other parties to it (a). Though an infant may be an agent to indorse, he incurs no liability by drawing, indorsiag, or accepting a biU, even, it is said, though given for necessaries (J) ; though in that case he may be liable on the consideration (c). At common law, a married woman incurred no liability by drawing or accepting a bill {d), unless she was a trader in the («) Seot. 71 (3). (a) Seot. 22 (2). (i) Ex parte EMU, L. R. 10 Ch. 373 ; Williamson v. Watts, 1 Camp. 552 ; Ex parte Jones, 18 Ch. D. 109. (c) Chalmers on Bills of Exchange, 56 ; Trueman v. Surst, 1 T. E. 40. {d) Marshal! v. Rutton, 8 T. R. 545. 151LLS 01' KXCHANCE AND PROMISSORY NOTES. 211 city of London, or her husband was under a civil incapacity of Parties to a residing here (e) . But in equity &feme covert who had separate '. — estate was liable to its extent by drawing, accepting, or in- dorsing a bill or note (/). A married woman who was divorced or judicially separated from her husband became capable of being a party to a bill((7). Now, by the Married "Women's Property Act, 1882, a married woman, married either before or after the Act, can be sued on a biU as if she were a single" woman (A). But judgment can be en- forced only against her separate estate, if any. A married woman, as agent for her husband, may indorse a note pay- able to her in her own name(«). The effect of bills or notes to which agents, mercantile corporations, or firms, are parties, has already been discussed in the First Book under their respective heads. It will be proper in this place to mention some peculiar rules respecting hanking corporations and partnerships, who, together with bankers carrying on business individually, have been the objects of certain special legislative enactments. There are three classes of banks existing in England — 1. The Bank of England. 2. Banks of six, or fewer than six persons. 3. Banking corporations, and companies of more than six persons. Nothing in the Bills of Exchange Act affects the provisions of the Act relating to joint-stock banks or companies, or any Act relating to or confirming the privileges of the Bank of Eng- land or the Bank of Ireland (sect. 97). [e] Berry v. Duchess of Mazarine, (/) La Tottche v. Za Totwhe, 3 H. & Ld. Raym. 147. As to cases of bills C. 576 ; McSenrtj v. Davies, h. R. 10 or notes payable to order of a feme Eq. 88; Davies v. Jenkins, 6 Ch. D. covert, and not reduced into pos- 728. session by the husband in his life- {g) 20 & 21 Vict. c. 85, ss. 21 — time, Sherrington v. Tales, 12 M. & 26. Johnson v. Zander, L. R. 7 Eq. W. 865 ; Mart v. Stephens, 6 Q. B. 228. 937. (A) 46 & 46 Vict. c. 76, supra. (t) Cotes V. Davis, 1 Camp. 485. S. — VOL. I. R 242 MERCANTILE CONTRACTS. Parties to a 1. The Bank of England (k), which is a corporation (/), can — °'^°° — issue bills or notes unstamped, witli the exclusive privilege of' doing so within three miles of London (m), and may re-issue its notes after payment thereof ad libitum without being liable to any stamp duty(«). Its notes, payable to bearer on d-emand, are, lite cash, a legal tender except by the Bank itself or its branches (o) ; but if issued out of London, they must be made payable where issued {p) ; they are not legal tender in teland or Scotland (17). 2. Banks of six., or fewer than six persons, who on the 6th of May, 1844, were carrying on the business of a banker in England or "Wales, having obtained a licence and given security by bond, may, except within the city of London or three miles thereof, issue on unstamped paper promissory notes for five pounds or upwards, payable to bearer on demand, or to order, at any period not exceeding seven days after sight ; and also draw and issue on unstamped paper bills of exchange, payable to order on demand, or any period not exceeding seven days after sight or twenty-one days after date : provided such bills of exchange be drawn on a bank in London, Westminster, or (A) The Mstory of the Bank of Eng- under 20 & 21 Vict. u. 49, or under 21 land and of its exolueiTe privileges, & 22 Vict. u. 91 ; (8) banks formed which are now chiefly regulated by and registered under 20 & 21 Viot. 0. 3 & 4 ■WUl. 4, c. 98, and 7 & 8 Vict. 49, and 21 & 22 Vict. c. 91 ; (9) banks u. 32, is given, and the statutes creating formed under the Compames Act, 1862; them set out a,t large, in Monk of ^nff- (10) banks registered as unlimited land V. Anderson, 3 Bing. N. G. 589. under the Companies Act, 1862, and Mr. Walker (Treatise on Banking registered as limited under 42 & 43 Law, 2nd edit. p. 11) divides banks Vict. c. 76, andUmitedoompaniesregis- of deposit into the fallowing thir- teredunder42&43 Vict. c. 76; (ll)pri- teen classes : (1) banks formed under vate banks composed of any num- 7 Geo. 4, c. 46; (2) such banks ber of persons not exceeding ten ; (12) as reconstituted under 7 & 8 Vict. trustees' savings banks; (13) Post 0. 113 ; (3) banks formed under 7 Greo. Office savings banks. 4, u. 46, and registered under 20 & 21 ■ (?) 39 & 40 Geo. 3, c. 28, a. 15 ; 3 Vict. c. 49 ; (4) banks formed under & 4 Will. 4, 0. 98, o. 1. 7 Geo. 4, 0. 46, and registered under (m) 9 Geo. 4, 0. 23, s. 1. 25 & 26 Viot. 0. 89 ; (5) banks formed (») 33 & 34 Vict. u. 97, ss. 45, 46. under 3 & 4 Will. 4, u. 98 ; (6) banks (0) 3 & 4 WiU. 4, u. 98, 0. 6. formed under 1 & 2 Vict. c. 73, and {p) Ibid. s. 4. 47 & 48 Viot. 0. 56 ; (7) banks formed (?) 8 & 9 Viot. c. 37, s. 6, and 8 & 9 imder7 & 8 Vict. c. 113, and registered Viot. c. 38, s. 15. KILLS OF EXCHANGE AND PKOMISSORY NOTES. 243 SoutWark, or by bankers at a town or place where they are Parties to a ' •' ^ Dill or note, licensed to issue unstamped notes and bills upon themselves, or their copartners, payable at any other town or place where those bankers shall also be licensed to issue such notes and bills (r). 3. Banking {s) corporations and companies of more than sia> persons are forbidden to issue in London, or within sixty-five miles of London, any bill or note for the payment of money on demand, or upon which any person holding it may obtain payment on demand ; or to borrow, owe or take up any sum on their notes, payable upon demand or at any less time than six months from the borrowing thereof, during the contiauance of the exclusive privileges of the Bank of England; but if they carry on business in or within sixty-five miles of London, they may draw, accept, or indorse bilk of exchange, provided they be not payable to the bearer on demand {t). Such a body, however, having an establishment more than sixty-five miles from London, provided it carried on the business of banking and issued notes on the 6th of May, 1844, may, subject to the restrictions presently specified, issue bills or notes payable on demand or otherwise at the place where they are issued and also at London (u), and have an agent in London or any other place where they shall be made payable for the purpose of such payment only. But such a bill or note must not be for less than five pounds, or re-issued in or within sixty-five miles of London. Even beyond this distance of sixty-five miles such a corpora- tion or company can only issue such bills or notes subject to the regulations prescribed by stat. 7 Geo. 4, c. 46, which directs that their bills and notes shall be made payable at some place or places specified thereon, exceeding the limited distance (subject, however, to the licence given by 3 & 4 WUl. 4, o. 98, s. 2 j 3 & (»•) 9 Geo. 4, 0. 23, s. 1. See alao 6 Bing. N. C. 415. As to banking 7 & 8 yict. c. 32, • a. 26, as to other companies established since May 6th, bilU. As to thelicenoet see 56 Q-eo. 3, 1844, see 7.& 8 Viot.c, 113, aiyj. 25 & 0. 184 ; 9 Geo. 4, o. 23, s. 4 ; and 7 & 26 Vict. o. 89. 8 Viot. 0. 32,< s. 22. ' (i) 7 & 8 Vict. c. 32, s. 26. • ' J») Stats. 3 & 4 WiU. 4, o. 98, s. 2 ; (») 3 & 4 Will. 4, c. 98, s. 2, and 39 & 40 Geo. 3, e. 28 ; 7 Geo. 4, c, 46 ; 3 & 4 Will. 4, v. 83, b. 2. The licence Sank of England v. Anderson, 3 Bing. given by the latter section seems more N, O. 689 ;: Booth v. £ani of Eni/kmd, extensive than that by the former, r2 244 MERCANTILE CONTRACTS. Parties to a 4 WiU. 4, c. 83, s. 2 ; and 7 & 8 Yict. o. 32, ss. 11 and 22) ; biU or note. ^^^^ ^.^^ ^^^^ ^-^^-^^ ^^^^ ^^ establishment as bankers in, or ■within sixty-five miles of London; that every memher of it shall he responsihle for the payment of hills and notes issued, such person heiag a memher at the date of the hills or notes, or hecoming so hefore they are payahle, or while any sum on any of them is unpaid ; and that they shall deliver into the Stamp Office, between February 28th and March 25th, an account ia a specified form. The account sets forth the true name of the body, and of every bank established by them, and the names and abodes of two members resident in England, who have been appointed public officers of the corporation or partnership. A further account is also to be delivered within the year, if there be any change in the officers or members. The co-partnership, unless it be incorporated, must sue and be sued (s) in the name of one of these officers, of whose appoint- ment (though it may be otherwise proved («)) a copy of the account certified by one of the Commissioners of Stamps is evi- dence; this copy also proves that all persons named therein were members at the period of its date (J). A decree or judgment against a public officer binds the co-partnership, and execution may be taken out against any member for the time being, and if that proves ineffectual (c), against any person who was a member at the time of the contract, or became a member before it was executed, or was a member at the time of judgment obtained. These remedies are now, however, practically superseded by proceedings to wind up the company, vmder which the Court will («) 7 Geo. 4, u. 46, h. 4, and 27 & (a) Echoards y. Buchanan, 3 B. & 28 Vict. c. 32, B. 1. Steward v. Orecmes, Ad. 788. 10 M. & W. 711 ; Chapman v. MiVeain, (J) As to the efEeot of such a copy 5 Exch. 61 ; hence a petition in bank- as evidence, see Dossett v. Sarding, 1 ruptoy cannot be filed against an indi- C. B. N. S. 524. vidua! member in the first instance: (c) See as to this, Sarvey v. Seott, -D«»!«o» V. Janwer, 6 Exoh. 242. The 11 Q. B. 92; Field v. M'Kenzie, 4 officer is not allovp^ed to plead his 0. B. 706 ; Sank of Englamd v. John- individual bankruptcy, at all events son, 3 Exoh. 598 ; and Quain, J., in when the plaintiff will undertake not Swift v. Winterhotham, L. E. 8 Q. B. to sue out execution against his per- p. 250. As to execution against a son, lands, or goods : Steward v. Sunn, company, see Rules of Supreme Courtj 11 M. & W. 63. 1883, Ord. XLII. i. 23. BILLS OF EXCHANGE AND I'llOMlSSORY NOTES. 245 restrain any process against members (d). The right of suing Parties to a and being sued by their own members through the medium ^^ °^ °°^°' of their public officer is extended to them by 1 & 2 Vict. c. 96, and members are prohibited from setting off their shares in any such suit. The issue of bank notes or bills, whether by banks of many or few partners, is now subject to restrictions imposed by the present Bank Charter Act (e), which provides (/) that no person, other than a banker who on May 6th, 1844, was lawfully issuing his own bank notes, shall make or issue them in the United Kingdom, and that " It shall not be lawful for any banker to draw, accept, make, or issue in England or Wales any bill of exchange, or promissory note, or engagement for the payment of money payable to bearer on demand, or to borrow, owe, or take up in England or "Wales any sums or sum of money on the biUs or notes of such banker payable to bearer on demand" ((/) : Except that any banker, who was on May 6th, 1844, lawfully issuing his own bank notes under the authority of a licence, may continue such issue, but only to the extent and imder the conditions presently mentioned. It declares that the right of any company or partnership to continue the issue shall not be prejudiced by any change in the personal composition of the body, either by transfer of shares, or the admission of any new partner, or the retirement of any member (gg) : Provided that any company or partnership, then consisting of only six or less than six persons, shall not issue such notes after the number of partners exceeds six. If a banker becomes bankrupt, or ceases to carry on business (h), or discontinues the issue of bank notes, he may not afterwards issue them(«). Every banker (/) who claimed {d) 25 & 26 Viot. o. 89, s. 197. (j/ff) Country banks entitled to a eom- {«) 7 & 8 Viot. 0. 32. position under 7 & 8 Vict. c. 32, s. 23, {/) lb. 8. 10. See the statute in Ap- do not lose the right by change of pendix. The term " banker " applies their place of business, or amalga- to all corporations, societies, partner- mation mth other banks : Capital ^ ships, and persons, and every indi- Counties Bank v. Batik of England, 61 vidual person carrying on the business Ii. T. N. S. 616. of banking, except the Bank of Eng- (A) Att.-Gen. v. Birklieck, 12 Q. B. land : sect. 28. D. 605. (?) 7 & 8 Vict. c. 32, s. 11. (;) 7 & 8 Vict. c. 32, s. 12. (./) lb. s. 13. 246 MERCANTILE CONTBAd'S. Parties to a the right of issuing such notes was reqtiired to. give notice of his ! claiiii to the Commissioners of Stamps and Taxes, who were to ascertain whether he was, on the 6th May, 1844, a hanker lawfully issuing his own notes, and if he were, to ascertain the average amount of the hank notes of such hanker, or of united banks (k), in circulation during twelve weeks preceding April 12th, 1844, and to certify and publish in the " Gazette" the amount thus ascertained (l). The statute then declares that such hanker shall not have in circulation upon the average of four weeks (for the ascertainment of which there are special provisions (m)), a greater amount of notes than the amount so certified. A bank exceeding this limit forfeits a sum equal to the excess («) ; but in the event of two banks, each of which consists of not more than six members, uniting, the commissioners may make a fresh certificate of the aggregate of the amounts they were entitled to issue, and the united body may then issue notes to the extent thus certified (o) . No limited bank having a note issue is entitled to Hmited liability in respect of its notes. The Companies Act, 1879 (p), repeals sect. 182 of the Companies Act, 1862, and in place thereof enacts that : — . "A bank of issue registered as a limited company, either before or after the passing of this Act, shall not be entitled to limited liability in respect of its notes ; and the members thereof shall continue liable in respect of its notes in the same manner as if it had been registered as an unlimited company ; but in case the general assets of the company are, in the event of the company being wound up, insufficient to satisfy the claims of both the note-holders and the general creditors, then the members, after satisfying the remaining demands of the note-holders, shall be liable to contribute towards payment of the debts of the general creditors a sum equal to the amount received by the note-holders out of the general assets of the company." Banking companies established since the 2nd day of Novem- ber, 1862, consisting of seven or more members, map he, and if consisting of more than ten members must be, formed and (A) 7 & 8 Vict. c. 32, s. 14. («) lb. s. 17. (0 lb. s. 15. (o) lb. s. 16. ("'') lb- ss. 18, 19, 20. {p) 42 & 43 Vict. o. 76, s. 6. BILLS OF EXCHANUE AND PKOMISSORY NOTES. 247 registered under the Companies Act, 1862, unless they pro- Parties to a cure an Act of Parliament or a charter. Being so registered, '— they become corporations, and the remedies on their hills or notes must be against the body and its funds, and if these fail, the only resource is an application to wind them up {p). The mode in which these latter bodies may be bound by their nego- tiable instruments is provided by that statute, which enacts {q), that "A promissory note or bill of exchange shall be deemed to have been made, accepted or indorsed on behalf of any company under this Act, if made, accepted or indorsed in the name of the company by any person acting under the authority of the company, or if made, accepted or indorsed by, or on behalf, or on account of the company, by any person acting under the authority of the com- pany." Nothing in the Bills of Exchange Act affects the Joint Stock Compeinies Act (r). When several persons who are not in partnership accept a bill, or make a promissory note, the question whether they are bound jointly, or jointly and severally, depends upon the wording of the instrument (s). A note beginning with "J promise to pay," and signed by several persons, is deemed joint and several {t). In no case will the signatm'e of one of such makers or drawees, it has been said, bind any person except bimself (i«). Nor, if such persons be payees, can any one of them transfer the bill or note by his individual indorsement; all must indorse unless one is authorized to indorse for the others {x) . A note, however, beginning, " I promise to pay," and signed by one partner for himself and his co-partners, is a joint note, and the partner signing is not severally liable upon it (y) ; but {p) Be Globe Iron Co., L. R. 20 Eq. {x) Sect. 32 (3). Carvidcy. Vickery, 337. Doug. 653, n. 134 ; Heilbutt v. Nevill, (?) 26 & 26 Viot. 0. 89, s. 47. L. R. 4 C. P. at pp. 356, 358. (r) 45 & 46 Vict. u. 61, s. 97 (3) (b). (y) B. N. P. 279 ; Marius, 2nd edit. (») Sect. 85 (1). 16 ; Beawes, Ist edit. 444 ; Ex parte \t) Sect. 85 (2). Stickley, In re Clarke, 14 M. & W. 469 ; («) Ex parte £ue&ley, In re Clarke, 14 Mall v. Smith, 1 B. & C. 407. Seelnnes M. & W. 469 ; and see Jenkins v. v. Stephenson, 1 M. & Rob. 146. Morris, 16 M. & W. 877. 248 MEECANTILE CONTKACIS. Parties to a bill or note. if it promise jointly and severally to pay, all the members of tlie partnership will he jointly, and the person signing it individually, bound (z) . An executor or administrator becoming a party to a biQ or note, given for the debt of the deceased, binds himself personally (a). Kegotiation of bills and notes. Section III. — Negotiation of Bilk and Notes. Although, by the ordinary rule of law, the benefit of con- tracts could not be transferred, so as to give the transferee a right to sue at law upon them in his own name {h) , yet those arising out of biRs and notes, generally speaking, might be so in the manner hereinafter specified. Though it once was doubted whether an English note were transferable abroad, it has long been decided that it is so (c). How a foreign note is transferred will be subsequently explained with reference to sect. 72 of the Bills of Exchange Act, 1882. A bill is negotiated when it is transferred from one person to another in such a manner as to constitute the transferee the holder of the bill {d) ; and a bill payable to bearer or indorsed in blank is negotiated by delivery {e), that is to say, transfer of pos- session, actual or constructive, from one person to another (sect. 2). A bill payable to order is negotiated by indorsement completed by delivery (/). The signature of the indorser written or printed on the bill itself without additional words is sufficient indorsement {g). It may be in pencil {h) ; and the mark of a person who cannot write will suffice {h). Though usually it is on the back, it may be on the face of -the bill («). When (z) Fmkivil v. Gonnell, 5 Exob. 381 ; Maelae v. Sutherland, 3 E. & B. 1. (a) Sect. 26 (1). Bidoul v. Bristow, 1 C. & J. 231 ; mism v. Serle, i M. & W. 795. (*) See now 36 & 37 Vict. o. 66, b. 25, sub-s. 6. (c) -De la Chammtte v. Bank of England, 2 B. & Ad. 385. {d) Bills of Exchange Act, 1882, s. 31 (1). («) Sect. 31 (2). The delivery of halyes of bank notes does not operate as a transfer of bank notes: Smiih v. Mundy, 3 E. & E. 22; Medimym v. Surton, 2 L. T. N. S. 324 ; Grant on Banking, 4th ed. 357. (/) Sect. 31 (3). (?) Sect. 32 (1). (A) Geary t. Physio, 5 B. & C. 234 ; Georges. Smrey, M. & M. 516. (J) Ex parte Tales, 27 L. J. Bankr. 9 ; sect. 32 (1) (2). BILLS OF EXCHANGE AND PKOMISSORY NOTES. 249 indorsements are too many to be written on a bill, a slip of ^®^°^**^^ paper called an " allonge " is attached to it ; and to prevent notes, fraud, it is usual in placing the first signature on the " allonge " to commence it on the bill itself and finish on the " allonge." An indorsement written on an " allonge" or on a " copy" of a bill issued or negotiated in a country where " copies " are recog- nized is deemed to be written on the bill itself (/). There may be a written agreement which qualifies the lia- bility of the drawer or acceptor ; and as between the original parties it will be valid, if supported by good consideration {k). It may be shown that no consideration was given for the bill or note, or that the actual consideration was different from that stated {l). Just as it may be shown that a deed was given as an escrow, that is, subject to a condition that it should not operate until a certain event, so it may be shown that a bill was delivered on such a condition. But such an agreement, we have seen, will not, as against a holder in due course, restrain the negotiability of the bill [m). The indorsement must be an indorsement of the entire bill (m). a partial indorsement will not operate as a negotia- tion of the bill, though perhaps under such an indorsement the indorsee might have a lien. But if a bill or note be indorsed for part of the sum due on it, and the Hmitation do not appear on the face of the bill, the indorsee wiU. be able to recover the whole sum from the acceptor or maker, and will be a trustee of the excess for the indorser (o). A mistake in spelling the name of a person to whom a biU is specially indorsed wiU. not prevent that person from transferring it by the indorsement of his name properly spelt upon it (p). An indorsement may be either blank, special or restrictive (q) . Where a bOl purports to be indorsed conditionally, the condi- ij) Sect. 32 (1). («) Sect. 32 (2). Seiliut v. Mvill, {k) McMmus v. Sarh, L. E. 5 Ex. L. E. 4 0. P. at p. 358. 65 ; Webb v. Spicer, 19 L. J. Q. B. 34. (o) EeU v. Furnival, 1 Cr. & M. (?) AbboU T. Bandricka, 1 M. & G. 538 ; 5 C. & P. 499. at p. 796 ; Abrey v. Crux, L. R, 6 [p) Sect. 32 (4) ; Leonard v. Wilson, 0. P. 37. 2 Or. & M. 589. (m) Sect. 21 (2). Davis \. Jones, 17 (?) Sect. 32(6). 0. B. 625. 250 MERCANTILE CONTRACTS. Negotiation tion as between indorser and indorsee, would, it is presumed, be notes/ ^° operative ; and if tbe money were paid to the indorsee without ' the fulfilment of the condition, he would hold it in trust for the indorser. But the condition may, as has been already stated, be disregarded by the payer (r). The following are instances of conditional indorsements :— " Pay A. B., or order on the arrival of the ship Tanjore at Bombay," or "pay 0. D. or order if he marries X." An indorsement in blank specifies no indorsee. A bUl so indorsed is payable to bearer (s). An indorsement may be made either by simply writing the signature of the indorser on the bOl, or by writing above the signature the words " pay to, or order," or " pay to, or bearer." A special indorsement specifies the person to whom, or to whose order, the bill is to be payable (t). It runs "pay to A. B. or order," or "pay to A. B.'s order." Such a bm is payable only to the particular person mentioned or his order. The indorsee must be named or indicated with reasonable certainty; but the biU may be specially indorsed to two or more indorsees jointly, or in the alternative to one or two, or one or some of several indorsees (m) . Any indorsement in blank may be converted into a special indorsement (v) . A blank indorsement may be converted into a special indorsement by writing above the indorser's signa- ture a direction to pay the bill to, or to the order of, MmseK or some other person. A restrictive indorsement prohibits the further negotiation of the biU, or expresses that it' is a mere authority to deal with the bill as thereby directed, and not a transfer of the ownership thereof ; for example, a bill may be indorsed " pay D. only," or " pay D. for the account of B.," or " pay D., or order for collec- tion" {x). " Pay J. Spittal, or order, value in amount with H. C. Drinkwater," was held not to be a restrictive indorsement ((/). (»■) Sect. 33. See Soarea v. Glyn, 8 {t) Sect. 34 (2). ^- ^- 2*- («) Sects. 7 (I) (2), 34 (3). («) Sect. 34 (1). jpeacook v. Shades, [v) Sect. 34(4). Doug. 633; Matthews v. JBloxom, 33 (») Sect. 35 (1). L. J. Q. B. 209. {y) Bmkley v. Jachson, L. E. 3 Ei. 135. BILLS OF EXCHANGE AND PBOMISSOKY NOTES, 251 An indorsement in full to A. without the word " only " will Negotiation not deprive A. of the power of indorsing. A restrictive indorse- notes, ment gives the indorsee the right to receive payment of the bUl, and to sue any party thereto whom his indorser could have sued ; it confers no power to transfer his rights as indorsee, unless it expressly authorise him to do so (s). Indorsements are deemed, until the contrary is proved, to have been made in the order in which they appear on the bill (a). A person who transfers a bill without indorsing it is called a " transferor by delivery," and is not liable on the bill. But he warrants, to the immediate transferee if a holder for value, that it is what it purports to be, that he has a right to transfer it, and that he is not aware of any fact which makes it valueless {b). If the bill be a forgery, or if the trans- feror by delivery has stolen, or found the bill, he will be liable on it to his immediate transferee ; in such cases the bill is not what it purports to be. If such a transfer were by way of payment of a former debt, that debt wiU not be looked upon as satisfied, unless the bill or note be discharged, or the holder be guilty of laches, when it comes to maturity (c). Such is the mode of negotiating or transferring a bill or note, which transfer may, in general, be made by any holder {d) or his legal representative ; as, if the holder die, by his executors or administrators (e) ; if he become bankrupt, by his trustee, unless (2) Seot. 35 (2). See Williams, Deacon maker of the note is solvent at tlie 4 Co. Y. Shadholt, 1 Cab. & £1. 629. time of such deliTery; it is only a trar- (a) Seot. 32 (6). Macdonaldv. Whit- ranty to the transferor that he is not field, 8 App. Cas. 733. aware of the insolvency of the parties (4) Seot. 58 (3). Gurney v. Women- to it. See Sogers v. Langford, 1 C. & ley, 4 E. & B. 133 ; Smith v. Merser, M. 637 ; also Gurn^g v. Womerdci/, L. E. 3 Ex. 61 ; see Timmins v. Gib- ubi sup. ; limmins v. Gibbins, 18 Q. B. bins, 18 Q. B. 722. 722. (c) Infra, p. 671 ; Richardson v. {d) The real holder of a bUl may jffums, 22 Q. B. D. atp. 275. Such a ratify an indorsement made in his transfer implies no warranty that the name ■without his authority ; Ancona bill is properly stamped : Pooley v. v. Marks, 7 H. & N. 686. Brown, 11 C.B.N. S. 566. Thetranefer (e) Sect. 97 (2). Savilinson v. Stone, by delivery of a note payable to bearer 3 WUs. 1 ; Bishop v. Curtis, 21 L. J. does not imply a warranty that the Q. B. 391. 252 MERCANTILE CONTRACTS. Negotiation under particular circumstances, as wliere the bankrupt held the note^^"^"^ bill in the character of trustee or agent for another person (c). ' Persons holding bills in autre droit should exercise this power of transfer with much caution, for imless they add words indicatiag that they sign in a representative character, they will be per- sonally bound by their indorsement (d). When a bill or note is lost or stolen, a thief or finder can, of course, convey no title in it to any other person, if at the time of the loss it be transferable only by indorsement. But if a biU be transferable by mere delivery, the thief or finder may convey a title in it to any person who took the bill in good faith and for value, and who " at the time the bill was negotiated to him had no notice of any defect iu the title of the person who negotiated it" (e). If such person take it without good faith, or under circumstances which must have led him to suspect the tnie state of the ease, and subject him to the imputation of such gross negligence as satisfies the jury of fraud, he will not be allowed to retain it, even though he have given its full value (/). Gross negligence will, however, not be regarded as equivalent to fraud (g). As to the time at which a bill or note may be negotiated, it may be so until it has been restrictively indorsed or discharged, by payment or otherwise (h). But a person who takes (i) a biU («) Bankruptcy Act, 1883, ss. 44, cock, 3 Bing. 406; Beckwith v. Corrall, 168. 3 Bing. 444; Husky v. Crockford, 10 {d) Bills of Exchange Act, 1882, Bing. 243; Crook y. Jadis, 5 B. & Ad. s. 26 (1). 909 ; Ctmlife v. Booth, 3 Bing. N. C. («) Sect. 29 (1) (b). Whistler v. 821 ; Raphael v. Bank of England, 17 Forster, 14 C. B. N. S. 248 ; Anon., U. B. 161 ; Re Gomersall, 1 Ch. D. at Ld. Eaym. 738 ; 1 Salk. 126 ; 3 Salk. p. 146 ; Misa v. Gurrie, 1 App. Cas. 71 ; Miller v. Race, Burr. 452 ; 1 Sm. 853 ; Jones v. Gordon, 2 App. Cas. at L. C. 9tli edit. p. 491 ; Lawson v. Wes- p. 629 ; Tatani v. Haslar, 23 Q. B. D. ton, 4 Esp. 56 ; Grant v. Vaitghan, 345. Burr. 1516 ; Beacock v. Rhodes, Dougl. {g) Sect. 90. Goodman v. Saney, 633 ; Snow v. Saddler, 3 Bing. 610. ubi eup. ; Jones t. Gordon, ubi sup. But in case of cheques crossed " not (A) Sect. 36 (1). Schultz v. Astley, 2 negotiable," see sect. 81. Bing. N. C. 544 ; Mehei-s v. Harriott, (/) Sect. 29(2). Goodmanr.Sariiey, 1 Shower, 163; Mutford v. Waleott, 4 Ad. & E. 870 ; Uther v. Rich, 10 Ad. Ld. Eaym. 675 ; CharUs v. Marsden, 1 6 E. 784 ; Bank of Bengal v. Macleod, Taunt. 224 ; Graves v. Key, 3 B. & Ad. 7 Moore, P. 0. Ca. 35 ; Strange v. 313 ; Stein v. Tglesias, 1 C. M. & E. 565. Wigney, 6 Bing. 683 ; Solomons v. Bank (t) See Whistler v. Foster, 14 C. B. ofEnrjlnnd, 13 East, 135 ; Snmv v. Pea- N. S. 248. BILLS OF EXCHANGE ANU FUOMISSORY NOTES. 253 after it is due, or with notice of its having been dishonoured by Negotiation non-acceptance, takes it subject to any defects of title affecting notes, it at its maturity (y). The expression "defect of title" is used in the Act instead of the phrase once common, " equity attaching to the bill" (A). " After a bill or note is due, it comes disgraced to the indorsee, and it is his duty to make inquiries concerning it." He takes it subject to all the equities with which it may be incumbered. Thus, if the holder took it from a thief or finder, he cannot recover on it, inasmuch as the thief or finder could not (/). A bill payable on demand is deemed to be overdue when it appears on the face of it to have been in circulation for an unreasonable length of time, which for this purpose is a question of fact (»»). A bUl accepted or indorsed when it is overdue, wOl, as regards the acceptor or any indorser, be deemed a bill payable on demand (»). A person taking a cheque — that is, a bill of exchange, drawn on a bank and payable on demand — does so at his peril, if it appears to have been ia circulation for an unreasonable time (o). A different rule applies to promissory notes payable on demand when negotiated. They are not deemed to be overdue for the purposes of affecting a holder with defects of title of which he had no notice, by reason of a reason- able time for presenting it for payment having elapsed since its issue (jo). But a note payable on demand which has been indorsed must be presented for payment within a reasonable time of the indorsement (q). A title is defective when the person who negotiates the bill obtained it or the acceptance by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circum- U) Seot. 36 (2). (m) Sect. 36 (3). (4) Lord Mlmborough in Tinaon v. {«) Sect. 10 (2). Francis, 1 Camp. 19. (o) See London and County Bank. Co. (l) Taylor v. Mather, 3 T. R. 83, v. Groome, 8 Q. B. D. 288 (cheque n. ; Brown v. Davies, 3 T. R. 80 ; indorsed eight days after date not Boehm v. Stirling, 7 T. R. 423 ; Cross- overdue) ; sects. 36 (b) and 173. ley T. Sam, 13 East, 498; Lee v. [p) Sect. 86 (3). Zagury, 8 Taunt. 114; Beauchamp v. (?) Sect. 86 (1). See Chartered Mer- JParry, 1 B. & Ad. 89, per Lord Ten- cantile Bank of India v. Dickson, L. E. terden. 3 P. C. 574. 254 MERCANTILE CONTRACTS. Negotiation stances as amount to a fraud (q). The circumstance that the notes. hill was an accommodation hill, or that there was a set-off, would not he such a defect. These equities, or defects in title, as they are called in the Bills of Exchange Act, must he such as naturally arise out of the hill or note transaction, not out of some collateral matter, as, for instance, a right of set-off, which the maker or acceptor would have had against the party who trans- ferred it to the holder (>•). Though a hill or note is, generally speaking, negotiahle after it has become due, yet it is not so after it has once heen paid at maturity, if such negotiation would have the effect of charging persons who otherwise would he discharged (s). An indorser who pays a hill may, hy s. 59, further negotiate the hill {t). He is not, however, entitled to enforce payment of the hill against any intervening party to whom he was previously liahle (m). An acceptor cannot re-issue a hill of which, at or after its matu- rity, he is the "holder in his own right" ; for it is then dis- charged (x). The common law seems to be partly altered. It was held before the Act that, if the acceptor of a bUl became the executor of the holder, the hill was discharged (i/). If a bill he paid at maturity, that payment will discharge the parties to it, even though their names should be left on the bill by accident and it should subsequently be negotiated (s). But if it he paid before it arrives at maturity, the person so paying or (?) Sect. 29 (2). Glascook v. Balls, W. N. 1889, p. 200. (r) Ibid. Burrough \. Moss, 10 B. See, howeTer, the judgment in iojai-ws & C. 558; Wliitehead v. Walker, 10 v. Coivie, 3 Q. B. 464; and also Jewell M. & "W. 696 ; Stein v. Tglesias, 1 v. Parr, 13 C. B. 909. CM. & R. 565 ; OuUsy. Harrison, 10 (;!) Sect. 69 (2) (b). Callow, \. late- Exoli. 572 ; In re Overend, Gurney f Co., rence, 3 M. & S. 95 ; Subbard t. Jaeh- L. R. 6 Eq. 344. As to the limit of son, 4 Bing. 390 ; Graves v. Key, 3 B. the above rule in other respects, see & Ad. 313; Williams^. James, 15Q.B. Chalmers v. Lanion, 1 Camp. 383 ; 498. See, where an action has been Sosanquet v. Budman, 1 Stark. 1 ; brought, Beuters v. Townsend, 5 B. & Atwood T. Crowdie, 1 Stark. 483 ; S. 613 ; Woodward v. Fell, L. E. 4 Buzzard v. Flecknoe, 1 Stark. 333 ; Q. B. 68. Collenridge v. Farquharson, 1 Stark. [u) Sect. 37. 259 ; Brnm v. O'Keefe, 6 Taunt. 305, [x] Sect. 61. Sarmer v. Steele, 14 af&rmed 5 M. & S. 282, in error. M. & W. 831 ; 4 Ex. 1. («) Beck T. ZoUey, 1 H. Bl. 89, n. ; [y) Freakley v. Fox, 9 B. & 0. 130. iartrum t, Caddy, 9 Ad. & E. 275 ; (s) Sect. 59 (1). BII,L8 OF EXCHANGE AND PROMISSORY NOTES. 255 receivinff TDayment muBt run the risk, if he allow his name to Negotiation -, n 1 1 7 A ^ 7 of *>illa and remain on it, of being subsequently called on by a bond fide „otes. holder, should it get into the hands of such a person. " Nothing," to use the words of Farl-e, B., " will discharge the acceptor ■ or the drawer except payment according to the law merchant, that is, payment of the bUl at maturity. If a party pays it before, he purchases it, and is in the same situation as if he had discounted it" («). Lastly. It is to be observed, on the subject of transfer, that the indorser of a bill by indorsing it — " (a) Engages that on due presentment it shall be accepted and ^aid according to its tenor, and that if it be dishonoured he will compensate the holder or a subsequent indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken ; " (b) Is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer's signature and all previous indorsements ; " (c) Is precluded from denying to his immediate or a subsequent indorsee that the hill was at the time of its indorsement a valid and subsisting biU, and that he had then a good title thereto (i)." The drawer of a bill and an indorser may, by express stipula- tions, negative or limit his own liability to the holder, or waive, as regards himself, some or all of the holder's duties (c). This is sometimes done by the drawer or indorser adding to his sig- nature the words " without recourse, or sans recotirs." This prevents the suing of the drawer or indorser, as the case may be. It does not affect a holder's right to sue any other party to the bill. (a) Morley v. Culverioell, 7 M. & W. cheque : Keene v. Beard, 8 C. B. N. S. 174, at p. 182. But see Thornton v. 372. In fact, the contract of an in- ynard, L. R. 10 0. P. 695; Solo- dorser is in so many respects similar mon V. Davis, 1 Cahabe & Ellis, to that of a drawer, that it is often N. P. 83; Deacon v. Stodhart, 2 M. said that every indorser is the drawer & G. 317, post, 8. 8, and Atten- of a new bUl. borottgh v. Mackenzie, 25 L. J. Exch. {e) Sect. 16 (1) and (2). As to con- 244. verting a blank indorsement into » (i) Sect. 66 (2). Sottquette v. Over- special, sect. 34 (4). mam, L. R. 10 Q. B. 626. So of a 256 MEKCANTILE CONTRACTS Section IV. — Acceptance. Aooeptamoe. Acceptance is " the signification by the drawee of his assent to the order of the drawer" (5'). An acceptance must he expressed by writing on the bill, and must, according to the present law, be signed by the drawee {h). It must be for the payment of money; if it were for the delivery of negotiable paper, or anything except money, it would be invalid (i). A bill may be accepted before it has been signed by the drawer, or while otherwise incomplete (/). The acceptor of a bUl overdue will be liable to pay on demand (A). No parti- cular form of words is necessary to make an acceptance by the drawee; the mere signature of the drawee without additional words being sufficient (1). An acceptance may be either general or qualified, or, as the distinction is sometimes expressed, absolute or conditional (m). A general acceptance assents, without qualification, to the order of the drawer in) ; a qualified acceptance in express terms varies the effect of the bill as drawn. Thus it may be (0) condi- tional, that is to say, payment by the acceptor may be made dependent on the fulfilment of a stated condition, e.g., "ac- cepted when in cash for the cargo of the ship Thetis." It has been held that an acceptance may be rendered condi- tional by another contemporaneous writing {p), though not as agaiust a bona fide holder ignorant of the existence of such writing. Its terms cannot be varied by any contemporaneous parol agreement, since that would be against the first prin- ciples of the laws of evidence (g'). There maybe an accept- er) Sect. 17 (1). (to) Sect. 19 (1), (2). [h) Sect. 17 (2) (a). («) Sect. 19 (2). Hdrm T. Morgm, (») Sect. 17 (2) (b). 44 L. T. N. S. 182. (j) Sect. 18. BaxendaU v. Bennett, (0) Julian v. Shoirooke, 2 Wils. 9; 3 Q. B. D. 625 ; Jn re Sat/ward, L. Sproat v. Matthews, 1 T. R. 182 ; E. 6 Ch. 646 ; Mogarth v. Latham, Smith t. Vertue, 30 L. J. C. P. 66. 3 Q. B. D. 643 ; L. % S. TV. Bank v. {pj Young v. Austen, L. E. 4 C. P. Wentworth, 6 Ex. D. 96. 533. (A) Sect. 10 (2). (j) Adamsy. WordUy, IM. &W. 374 (?) Sect. 17 (2) (a). Yowng v. Austen, ubi supra. MILLS OF EXCHANGE ANU PKUMISSOKY NOTES. 257 ance to pay part only of the amount for which the bill is drawn, Acceptance. or an acceptance to pay only at a particular specified place, or an acceptance of some one or more, hut not all, of the drawees (r) . It may be qualified as to time (s), e.g., accepted on condition of being renewed till November 28, 1844 {t). An acceptance to pay at a particular place is a general acceptance (m), unless it expressly states that the biU. is to he paid there only, and not elsewhere. Thus an acceptance "payable at Coutt's Bank" would be general, and would not require presentment to that bank for payment. On the other hand, an acceptance " payable at Coutt's Bank only " would be qualified. A holder of a bill has a right to require an unqualified acceptance {x), conformable to the tender of the order specify- ing, if none be mentioned, a place of payment, and mentioning the time of presentment, if payable after sight. But if the holder thinks fit to accept any such acceptance, he will be boimd by it. Acceptance of a bill is incomplete and revocable until delivery of the instrument (y). The acceptor engages that he will pay the bill according to the tenor of his acceptance (z). Against a holder in due course he may not deny the existence of the drawer, or the genuineness of his signature («) ; an acceptor, it was said, was bound to know the handwriting of the drawer. Thus he may not prove that the signature is a forgery. He also admits the drawer's capacity and authority to draw {b), e.g.,m the case of an agent, he is estopped from proving that the agent was not authorised to draw (c). In the case of a bill payable to the drawer's order, the acceptor may not deny the capacity of the drawer to indorse, but may deny the genuine- (r) Sect. 19 (2) (b) (o) (e). cancelled by consent: Salli v. Dennis- («) Sect. 19 (2) (d). toun, 6 Exch. 483. (t) SuasellY. Fhillips, 14 Q. B. 891 ; (a) Sect. 54 (1). Fansham y. Feet, 26 L. J. Ex. 314. (a) Sect. 54 (2) (a). But see sect. 7, (m) Sect. 19 (2) (o), altering the law. sub-s. 3; and Vagliano v. Bank of Eng- as laid down by the House of Lords in land, 23 Q. B. D. 243, as to bills payable Mowe V. Young, 2 Bligh, 391. to a fictitious payee. (a;) Sect. 44 (1). Byles, 14th ed. 210. (S) Sect. 54 (2) (a). (y) Sect. 21 (1). See Baxendale v. (c) Garland v. Jacomh, L. R. 8 Ex. Bennett, 3 Q. B. D. at p. 531. After 216 ; SalifaxY. Lyle, 18 L. J. Ex. 197. issue the acceptance may be waived or s. — VOL. I. s 258 MKKCANTILE CONTEACTS. Aooeptanoe. ness or validity of the indorsement (rf), and tlie same rule ~ holds good in the case of a bill payable to the order of a third person (e). The drawer of a biU, and any indorser of it, may insert therein the name of the person to whom the holder may resort in case of need, that is to say, in ease the bill is dishonoured by non-accept- ance or non-payment (/). Such person is called in the Act " the referee in case of need." If acceptance is refused by this "referee," notice of dishonoiir is not necessary in order to preserve the holder's right of recourse against the person giving the address of the referee in case of need. A dishonoured bill containing the name of a referee in case of need must be pro- tested for non-payment before it is presented for payment to the referee {g). There is a peculiar kind of acceptance called acceptance for honour supra protest (h). It is adopted when, in order to pro- mote the negotiation of the bill, or save the credit of the drawer or some other party thereto, in a case where the drawee is not to be found, or cannot, or will not, accept, or, after he has accepted, absconds, or becomes bankrupt, a stranger thinks fit to accept the bin for the honour of some one of the parties thereto. This acceptance wiU enure to the benefit of all the parties subsequent to him for whose honour it was made («), and whose name it generally specifies ; if it do not, it is considered to be for the honour of the drawer {k). A bill accepted for the honour of some one of the parties to it, may be again accepted for the honour of another (1). But in no case is the holder obliged to take an acceptance for honoiu? (m). () Ibid. («) Sect. 41 (1). {x) Sect. 41 (2). («) Seot. 41 (1). Smithy. New South (y) Sect. 41 (3). TFaUs Sank, 8 Moo. P. 0. N. S. at p. (z) Sect. 45, and as to drawer of a 461. cheque, sect. 74. («) Sect. 41 (1). [a) Seot. 45 (1). 264 MEKCA'NTILE CONTRACTS. Presentment, on the succeeding business day {y). The time of payment of a hOl payable at a fixed period after date, after sight, or after the happening of a specified event, is ascertained by excluding the day from which the time is to begin to run, and including the day of payment (z). The due date of a bill drawn in one country and payable in another is determined by the law of the latter country {a) . A foreign bill is frequently drawn payable at so many usances. An usance signifies the time in which, during the infancy of bills, aU bills between this country and the place on or at which the instrument is drawn, were payable {b) : these usances are calculated exclusively of the day of the date and of the days of grace. Thus, an usance between this country and Venice being three calendar months, a bill drawn on Yenice at two usances, and dated on the 1st of January, purports to faU due upon the 1st of July following. But at Venice six days of grace are allowed, excluding Sundays, holidays, and days on which the bank is shut ; the bUl, there- fore, must not be presented till the 7th, and if such a day intervene, not till the 8th. In computing the time which such bills have to run, it some- times becomes necessary to divide a month ; thus, a bill drawn on Venice at half usance, is payable at one month and a haU from date ; in such cases the half month means fifteen days {c). " (2.) Where the bill is payable on demand, then, subject to the provisions of this Act, presentment must be made within a reason- able time after its issue (d) in order to render the drawer liable, and within a reasonable time after its indorsement in order to render the indorser liable. In determining what is a reasonable time regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and the facts of the particular case" (e). {y) Sect. U (1) (a) and (b). (c) Marius, 23. (x) Sect. 14 (2). {d) Ware\.Bvans,lA. Eaym. 928; [a] Sect. 72 (5). as to cheques, see Alexander v. Burch- (*) See a Table of Usances, Ohitty Jield, 7 M. & Gr. 1061. on Bills, 11th ed., p. 260, n. (e) Sect. 45 (2). BILLS OF EXCHANGE ANU PROMISSORY NOTES. 265 What is a reasonable time is, in the absence of any settled Presentment, rule, a mixed question of law and fact, to be decided in the same way as the Hke question concerning the presentment for accept- ance of bills at or aft«r sight (/) ; and a longer time for pre- sentment will be allowed when the instrument was intended to be a contiauing security, or has been circulated, and was apparently meant for circulation (jr). But any delay beyond what the common course of business warrants is in ordinary cases unreasonable. If the instrument be payable at a banker's, and in the place where the party receives it, the established rule now is, that it suffices to present it at any time during bank- ing hours on the business day (/*) after it is received (/). If it be payable elsewhere, it suffices to forward it by the regular post on the day after it is received (/) ; and the party receiviug it by post has till the next day to present it (/.) . These limits, how- ever, must not be transgressed (l), save under very special cir- ciunstances ; as where a servant received the notes on Friday for his master, who was then absent, and did not return tUl after banking hours on Saturday, and consequently could not present the notes till Monday (m). In the case of a cheque, any um'easonable delay to present it for payment exonerates the drawer to the extent to which he may have been injured, if the banker or person on whom it was drawn has failed in the interim {n). " (3.) Presentment must be made by the holder or by some (/) See ante, pp. 261, 262 ; Merc. {k) JFilliaim v. Smith, 2 B. & Aid. J?A. of Zand, and C. y. Dickson, L. E. 496. 3 P. C. 674. (I) Beeching v. Gower, Holt, N. P. C. (y) Barough v. White, 4 B. & C. 315; Heywood v. Pickering, L. K. 9 325 ; Seywood v. Watson, 4 Bing. 496 ; Q. B. 428 ; Camidge v. AUenby, 6 B. & Banks v. Colwell, 3 T. R. at p. 81; C. Z1Z; Moule\. Brown, iBmg.TS.Ca.s. Camidge V. AUenby, 6 B. & C. 373. 266 (a cheque) ; Alexander v. Burch- (A) Sect. 92. Jield, 7 M. & G. 1061 ; Eopkins t. (i) Robson v. Bennett, 2 Taunt. 388 ; Ware, L. E. 4 Ex. 268. Boddington v. Schleneker, 4 B. & Ad. (m) James v. Solditch, 8 D. & E. 40. 752. See Williatns v. Smith, 2 B. & Aid. (j) Rickford v. Ridge, 2 Camp. 537 ; 496. Darbishire v. Parker, 6 East, 3 ; and («) Sect. 74 (1) ; Robinson v. Sawhs- as to cheques, see Hare y. Eenty, 10 ford, 9 Q. B. 52 ; Serle v. Norton, 2 M. C, B. N. S. 65. & Eob. 401 ; Hopkins v. Ware, L. E. 4 Ex. 268. 266 MERCANTILE CONTRACTS. Presentment, person authorized to receive payment on his hehalf at a reasonable hour on a business day (m), at the proper place as hereinafter defined (o), either to the person designated by the bill as payer, or to some person authorized to pay, or refuse payment on his behalf, if with the exercise of reasonable diligence such person can there be found " {p). If the maker or drawee be absent, or the house at which the bill or note was payable be found shut up, it may be treated as dishonoured {q) ; but care must be taken that he has absented himself, and not merely removed ; nor is his bankruptcy or stopping payment any excuse for the want of presentment (/■). The person who presents a bill must be ready and willing to deliver it up on payment (s). The following are the rules defining a proper place for pre- sentment : — " (a) "Where a place of payment is specified in the bill, and the bill is there presented {f). " (b) Where no place of payment is specified, but the address of the drawee or acceptor is given in the bill, and the bill is there presented (m). " (c) Where no place of payment is specified, and no address given (a;), and the bill is presented at the drawee's or acceptor's place of business, if known, and if not, at his ordinary residence, if known. "(d) In any other case, if presented to the drawee or acceptor wherever he can be found (a;), or if presented at his last known place of business or residence." Where a bill is payable at a bankers, a presentment at the bankers is sufficient (y) ; if at a particular place, where the acceptor has no residence, a presentment, it is said, at aU the banking houses in the place (z). Where a particular hoiise is pointed W See sect. 92. (2^) Saunderson v. Judge, 2 H. Bl. (o) See infra. .509 ; Sarris v. i'acfej-, 3 Tyr. 370, n. (p) Sect. 46 (3). See Baiky v. Porter, 14 M. & W. 44, (?) Sine V. Allely, 4 B. & Ad. 624. in which the fact of the hankers at [r) Sands v. Clarke, 8 C. B. 761. whose bank the biU was made payable (j) Sect. 82 (4). teing themselves the holders was con- («) Sect. 45 (4). sidered eqniralent to presentment. («) Sect. 46 (4) ; Sine v. AlUhj, supra. (a) Sardy v. Woodrmfe, 2 Stark. 319 (.«) Sect. 46 (4). BILLS OF KXOHANGE AND PROMISSORY NOTES. 267 out by the bill as tbe acceptor's residence, lie is bovmd, if he Presentment, remove from that house, to leave sufficient funds to meet the bill, and a presentment to any inmate («), or, if the house be shut up, at the door, will be sufficient (6). By the usage of bankers in London, a bill or cheque held by a bank and pay- able by another, may be presented at the clearing house (c). If the bill be payable at two alternate places, the holder may present at either {d}. A bill drawn on two or more persons, not partners, must, if no place of payment is specified, be presented to all (e). Presentment for acceptance is dispensed with where the drawee is dead (/) . But in the event of the death of the drawee, and if no place of payment be specified, pre- sentment for payment must be made to the personal repre- sentatives, if such there be, and they can with reasonable diligence be found (gr). As in the case of presentment for acceptance, usage may permit presentment for acceptance by post. Presentment for payment is unnecessary (/«) : — "(a) Where, after the exercise of reasonable diligence, present- ment as required hy this Act cannot be effected ii). The fact that the holder has reason to believe that the bill will on presentment be dishonoured, does not dispense with the necessity for present- ment {h). " (b) Where the drawee is a fictitious person {I). " (c) As regards the drawer, where a drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer lias no reason to believe that the bill would be paid if presented." For instance, where the drawer has no assets, or reasonable grounds for believing that he will have assets, in the hands of the acceptor (w). (a) Mxton v. Jones, 1 M. & G. 83. (A) Sect. 46 (2). (b) Eitie V. Allelt/, 4 B. & Ad. 624. (t) Mardy v. Woodroofe, 2 Stark. [e) Meynolds v. Chettk, 2 Camp. 596. 319 ; Smda v. Clarke, 8 C. B. 751. ((/) JBeeching v. Gower, Holt, 315. (Ji) SillY.Seap, D. & E. N. P. C. 57. {e)"Seot. 45 (6). (?) Smith v. Sellamy, 2 Stark. 223. (/) Sect. 41 (2) (a). \m) Wirth v. Austin, L. R. 10 C. P. {(j) Sect. 45 (7). 689. 268 MERCANTILE CONTRACTS. Presentment. " (d) As regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill would be paid ii presented. " (e) By waiver of presentment, express or implied" (n). Section VI. — Notice. Notice. When a bill or note is dishonoured by non-acceptance or non- payment, notice of such dishonour must be given to the drawer and each indorser to whom the holder wishes to have recourse (o). If the drawer have died, notice must be given to his represen- tatives; if he have become a bankrupt, to his trustee (j^). Notice to a person not a pajrty to the bill, but only collaterally liable, as upon a guarantee for its payment, is unnecessary [q). It is no excuse for the omission to give notice that the in- dorser or drawer has not suffered loss thereby; the law pre- sumes that he is injured, and, except in certain cases, the party to whom it should have been given is discharged from all liability. Notice of dishonour does not mean mere knowledge, and a party may be entitled to a formal communication of the dishonour of a bill, though it be clearly shown that he knew it would be dishonoured (r) . The notice must conform to certain rules, of which the follow- ing are the chief (s) : — " (1.) The notice must be given by or on behalf of the holder, or by or on behalf of an indorser who, at the time of giving it, is him- self liable on the bill {t) : («) Sect. 46 (2). (o) Sects. 48, 49; Zajitie v. Slaiter, 6 Bing. 623. [p) Sect. 49 (9), (10) ; Rohde v. Froctor, 4 B. & 0. 517. See Ex parte Molme, 19 Ves. 216. (q) Walton v. Mascall, 13 M. & "W. 72 ; Sitcheoek v. Sumfrey, 6 M. & Q-. 659 ; Smith v. Mercer, L. K. 3 Ex. 51, seems irreconcilable with those oases and with Carter r. White, 25 Ch. D. 666. (r) Burgh v. legge, 5 M. & W. 418. But if he be the person to whom in truth the bill is presented, formal notice is unnecessary : Caunt v. Thomp- son, 7 C. B. 400. (s) Sect. 49. (0 Chapman v. Keane, 3 Ad. & E. 193; Ex parte Barclay, 7 Ves. 597; Jameson v. Swinton, 2 Taunt. 224 ; Wilson V. Swahey, infra. See Stewart V. Xennett, 2 Camp. 177. Notice from the acceptor has been held .sufficient ; BILLS OF EXCHANGE AND PR0M15S0KY NOTES. 269 " (2.) Notice of dishonour may be given by an agent either in Notice, his own name or in the name of any party entitled to give notice, whether that party be his principal or not : " (3.) Where the notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior in- dorsers who have a right of recourse against the party to whom it is given («). " (4.) Where notice is given by or on behalf of an indorser entitled to give notice as hereinbefore provided, it enures for the benefit of the holder, and aU indorsers subsequent to the party to whom notice is given." It does not appear necessary that the person giving notice should have been specifically authorised to do so on behalf of the holder or indorser. Unless, however, he on whose behalf the notice is given be liable on the bill it wiU not avail. Thus, it wiU not suffice if he be discharged by his signature being cancelled by having indorsed sans recours, or through the bill not having been duly presented for acceptance. The notice need not state on whose behalf it is given (x). If it piirport to do so, and by mistake the name of another party to the bill be mentioned, the notice will not be void. The only effect, it seems, will be to entitle the person to whom it is addressed to avail himself, as against the party on whose behalf it is actually given, of any defence he would have against the party whose named is used (y). The notice must be given in sufficient time to maintain the action if such party were suing on the biU (a). " (5.) The notice may be given in writing or by personal com- munication (ff), and may be given in any terms which sufficiently however, a learned author remarks I/ymght y. Bryant, 9 C. B. 46. (Bayley on Bills, 6th ed. 250) he prob- {x) Woodthorpe v. Zawes, 2 M. & W. ably acted as agent for the holder. 109. (») Wihon T. Swahey, 1 Stark. 34 ; (y) Sarrison t. Suscoe, 15 M. & W. Chapman v. Xeane, 3 Ad. & E. 193; 231. overruling, as to this point, Tindal v. (a) Morrison v. Rtiacoe, supra. Brown, 1 T. E. 167 ; 2 T. E. 186 ; (jr) Soulditch v. Cauty, 4 Bing. N. C. and Hx parte Barclay, 7 Ves. 597; 411. Sarrison v. Suseoe, 15 M. & W. 231 ; 270 MERCANTILE CONTRACTS. Notice. identify the bill and intimate that the bill has been dishonoured by non-acceptance or non-payment (A). "(6.) The retui-n of a dishonoured bill to the drawer or an indorser is, in point of form, deemed a sufficient notice of dis- honour "(M). Rules 5 and 6 remove some difficulties as to the sufficiency of notices of dishonour. All that is now necessary is a notice identifying the bill, and intimating that it has been dishonoured by non-acceptance or non-payment. Before the Act the true rule of construction was that where the terms of the notice are such that it appears by reasonable intendment, and would be inferred by any man of business, that the bill has been presented to the acceptor and not paid by him, although it does not appear by express terms or necessary implication, that is sufficient («■). Therefore a notice informing a party that the acceptance due that day was unpaid, accompanied by expressions requesting his attention to it, or requiring payment, was deemed by the Court of Exchequer Chamber to be sufficient. A notice which described a bill as " a note," but in which the date was accurately stated, was sufficient (y). Whether a person has been misled by a misdescription of a bill in a notice of its dishonour is a question of fact in each par- ticular case. Notice was held good where the defendant, the drawer, was called the " acceptor," and the acceptor was described as the " drawer " {k), and where the notice misstated the bank at (A) Sect. 49. Curkwis v. Cor^ld, 1 notice was held safficient :—" James ft' ^- 81*- Court's acceptance, due this day, is {hh) Sect. 49. unpaid, and I request your immediate (i) Faul V. J^oel, 3 H. & N. 466 ; attention to it." Armstrong v. CAm- S. C. (Ex. Oil.) 4 H. & N. 355. The Hani, 6 0. B. 687. notice was in these words — "B.'s (j) Stockman r. Farr, U M. & W. acceptance to J., 500?., due January 809. 12, is unpaid ; payment to E. & Go. (/«) Stockman v. Farr, 11 M. & W. is requested before 4 o'clock." In 809 ; Frmiage v. Vaughan, 9 Q. B. Bailey v. Forter, 14 M. & W. 44, 608 ; Mellersh v. Sippm, 7 Exch. 578 ; which was adopted by the Court, as Sowlands v. Springett, 14 M. & W. 7. the ruling authority, the following HILLS OV EXCHANGE ANU PROMISSORY NOTES. 271 which the bill was payable, all other particulars beiag rightly Notice, described, and the defendant not being in fact misled. " (7.) A written notice need not be signed, and an insufEcient written notice may be supplemented and validated by verbal com- munication. A misdescription of the biU shall not vitiate the notice unless the party to whom the notice is given is in fact misled thereby. "(8.) Where notice of dishonour is reqidred to be given to any person, it may be given either to the party himself, or to his agent in that behalf " (ot). A referee in case of need^is not for the purpose of receiving notice of dishonour an agent of the party inserting his name («). Where a drawer was one of the partners of a firm by which the biU was accepted, the notice which any one of the partners received of its dishonour was deemed sufficient to bind the drawer (o) . Notice to a member of a public company or quasi- corporation is not notice to the company (p). An agent for the piirpose of indorsing a bill is deemed to be an agent for the purpose of receiving notice of dishonour, and a notice given him will be good. " (9.) Where the drawer or indorser is dead, and the party giving notice knows it, the notice must be given to a personal re- presentative if such there be, and with the exercise of reasonable diligence he can be found. "(10.) Where the drawer or indorser is bankrupt, notice maj/ he given either to the party himself or to his trustee. "(11.) Where there are two or more drawers or indorsers who are not partners, notice must be given to each of them, unless one of them has authority to receive such notice for the others " (l). In one case the drawer, who was a bankrupt, had absconded. (ot) Sect. 49. Bromage v. Vaughan, be given at the oonnting-house. See 9 Q. B. 608. post, p. 274.) (») In re Leeds Banking Co., Exparte (o) Sills y. Thorowgood, 2 H. & W. L. R. 1 Eq. 1; Crosse v. 102. Smith, 1 M. & S. 645, at p. 554. (A (ju) Steward, v. Btmn, 12 M. & W. clerk to a meroliant is his agent to at p. 664. receive notice of dishonour if the notice 272 MERCANTILE CONTRACTS. Notice. His house remained open, and in the possession of a messenger. No notice was given to the drawer or left at his house, or given to the assignees, of whose appointment the holder had notice. In these circumstances the drawer's estate was held to be dis- charged from the hill (r). In another case the holder of a hill which was dishonoured after the appointment of a trustee in the bankruptcy of the drawer, sent by post notice of the dis- honour to the drawer, directed to an address which he had left for some months, the address being the only one with which the holder was acquainted. The notice was held sufficient («). " (12.) The notice may be given as soon as the bill is dishonoured, and must be given within a reasonable time thereafter {(). " In the absence of special circumstances, notice is not deemed to have been given within a reasonable time, unless — (a) where the person giving, and the person to receive notice reside in the same place, the notice is given or sent off in time to reach the latter on the day after the dishonour of the bill ; (b) where the person giving, and the person to receive notice reside in different places, the notice is sent off on the day after the dishonour of the bUl, if there be a post at a convenient hour on that day, and if there be no such post on that day, then by the next post thereafter " («<). The holder has his day to give notice to any party he may seek to charge, and each of the prior indorsers in turn has Ms day; but the holder may avail himself of a notice duly given by any other party to the bill (x). Non-business days, that is, Sunday, Good Friday, Christmas Day, bank holidays, and days appointed by royal proclamation as a public fast or thanksgiving day, are not counted if the period within which the notice should be given is less than three days (y). If a bill is dishonoured on Saturday, it will be sufficient if the [r) Rohde v. Proctor, 4 B. & C. 496 ; Sawlcea v. Salter, 4 Bing. 715 ; 617. Frideaux v. Priddle (as to notice of (s) Ex parte Baher, In re Selhnan, dishonottr of a cheque), L. R. 4 Q. B. L. E. 4 Ch. D. 795; Ex parte John- 465. ston, 1 Mont. & Ayr. 622. [x] Soive t. lippei; 13 0. B. 249. (i) Sect. 49. See sect. 49 (3). (m) Williams v. Smith, 2 B. & Aid. {y) Sect. 92. BILLS OF EXCHANGE AND PROMISSORY NOTES. Si73 notice be sent off so as to he delivered on the Monday, if the Kotioe. persons giving and receiving notice reside in the same place. Where they reside in different places, the notice may be sent ofE on the Monday if there be a convenient post on that day ; if not, the notice must be sent by the next post thereafter. " (13.) Wiere a bill, when dishonoured, is in the hands of an agent, he may either himself give notice to the parties liable on the biU, or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an inde- pendent holder " (a). A banker presenting a bill or note for his customer has the same time to give notice to his customer as if the banker were the holder for his own benefit ; and the customer has the same time to transmit the notice to former parties as if such had been the case (b). And a person who pays a bill for the honour of an indorser, holds as upon a transfer from him, and has a right to take advantage of any notice of which the person for whom he made the payment coidd have availed himself (c). " (14.) Where a party to a biU receives due notice of dishonour, he has, after the receipt of such notice, the same period of time for giving notice to antecedent parties that the holder has after the di8honour(c?). "(15.) Where a notice of dishonour is duly addressed and posted, the sender is deemed to have given due notice of dishonour, not- withstanding any miscarriage by the post office" (e). In certain cases giving notice will be excused or dispensed with. It is excused when the delay is caused by "circumstances (a) Sect. 49 (13). time to transmit it: Clode v. Bayley, (*) Sayne» v. Birha, 3 B. & P. 699 ; 12 M. & W. 51 ; Frinee v. Oriental Scott V. Liford, 9 East, 347 ; Langdale Bank, 3 App. Cas. p. 332. V. Trimmer, 15 East, 291 ; Poole v. (c) Goodall v. Folhill, 1 C. B. 233. Dicas, 1 Bing. N. C. 649. ^ee Boyd (rf) Sect. 49(14). See Sbrne v. jBom- V. Emmmon, 2 Ad. & E. 184. In tlie quette, 3 Q. B. D. 514. case of a bill having passed through (e) Sect. 49 (15). Newen v. Gill, 8 several branch banks, each branch is C. & P. 367 ; Chapman v. Keane, 3 Ad. to be considered as an independent & E. 193. holder, and entitled to notice, and the S. — VOL. 1. T 274 MERCANTILE CONTRACTS. Notice. beyond the control of the party giving notice, and not imput- able to his default, misconduct, or negligence," as in case of the death or Ulness of the holder (e), or where the indorser gives a wrong address or misleads the holder as to it, and the notice is consequently long in reaching him (/). Notice of dishonour is dispensed with — " (a) When, after the exercise of reasonable diligence, notice as required by this Act cannot he given to, or does not reach the drawer or indorser sought to be charged " {g). Thus, going to the party's counting-house during business hours and finding no one there to receive the notice, is equiva- lent to a dispensation with notice ; since, according to the usage of trade, a merchant who puts his name to a biU ought to be ready at his place of business to receive notice of its dishonour {h). " (b) By waiver, express or implied. Notice of dishonour may be waived before the time of giving notice has arrived, or after the omission to give due notice" (j). In an action by an indorsee against the drawer, a letter in which he said, " You know I meant to call upon you imme- diately after the 24th with the money ; Mr. Gr. (the acceptor) is an old and intimate friend of mine," was deemed sufficient evi- dence of waiver of presentment and notice of dishonour (/). In fact, any acknowledgment by a drawer of his liability to pay, or any promise to pay the amount, though conditional as to the mode of payment, is evidence for a jury of due notice of dishonour, and, in the case of a foreign bill, of its having {e) Sect. 50 (1). Hilton y. Shepherd, {h) Crosse \. Smith, 1 M. & S. S4S; 6 East, 14, M. Allen v. Edmundson, 2 Exoh. 719. No- (/) Batemm v. Joseph, 12 East, 433; tice -will te dispensed with under this Beveridge v. Burgis, 3 Camp. 262; sub-section only where the inability Browning v. Eirmear, Gow, 81 ; Firth to give notice continues up to the time y. Thrush, 8 B. & C. 387 ; Berridge v. of bringing action : Studdy v. Beesty, Fitzgerald, L. R. 4 Q. B. 639 ; Bewitt 60 L. T. N. S. 647. V. Thomson, 1 M. & Rob. 543 ; see Siggers [i) Sect. 60 (2). V. Brown, lb. 620. See per Parke, {j) Mills v. Gibson, 16 L. J. C. P. B., Allen v. Fdmmdson, 2 Exoh. at p. 249 ; Habey v. Gilbert, 30 L. J. Ex. 724; Turner v. Leech, 4 B. & Aid. 170; Woodsv. Dean, 3'B. & S.lOl; 32 451 ; Sowe v. Tipper, 13 C. B. 249. L. J. Q. B. 1. (g) Sect. 50 (2). BILLS OF EXCHANGE AND PROMISSORY NOTES. ^75 been duly protested (/c). According to Woods v. Dean{l), ii a i^otics,' person who has not had due notice of dishonour acknowledges, with full knowledge of the facts, his liability, though not" to the party then suing, is evidence from which waiver of the notice may be inferred. Notice of dishonour is dispensed with as regards the drawer in the following cases : — " (1) Where drawer and drawee are the same person; (2) where the drawee is a fictitious person, or a person not having capacity to contract ; (3) where the drawer is the person to whom the bill is presented for payment ; (4) where the drawee or acceptor is as be- tween himself and the drawer under no obligation to accept or pay the bUl ; (5) where the drawer has countermanded payment " (m). Of these oases the most important is that of accommodation bills. Before the passing of the Bills of Exchange Act it was held that if a bill was accepted for the accommodation of a drawer, who had not the least reason to expect that it would be paid, he would not be entitled to notice of its dishonour (w), since the reason for notice is that the drawer may, without delay, withdraw his effects from the drawee's hands, which reason, of course, cannot apply when he has none there. But the drawer was entitled to notice, if on taking up the biU he could sue the acceptor or any other party (o), or had reason to expect that the bill would be paid, as if he had efEects on their way to the drawee (p), or had effects in the drawee's hands at the time when the bill was drawn (q), or when it was pre- sented for acceptance (r), or afterwards but before it became due (.s) ; in a word, if he had any reasonable ground^ to expect (A) Campbell v. Webster, 15 L. J. C. 610. So in the case of an iudoraer, C. P. 4 ; 2 0. B. 258. Carter v. Flower, 16 M. & "W. 743. («) 3 B. & S. 101 ; 32 L. J. Q. B. 1. (p) Sucker v. Hiller, 3 Camp. 217 ; (m) Sect. 50 (2) (e). 16 East, 43. (») Sharp v. Sailey, 9 B. & C. 44 ; [q) Orr T. Maginnia, 7 East, 359. Biokerdike v. Balhnan, 2 Sim. L. C, See Thackray v. Blaekett, 3 Camp. 9th ed. 56 ; 1 T. E. 405 ; Fitzgerald 164 ; and BUckhm v. Doren, 2 Camp, T. Williams, 6 Bing. N. C. 68 ; Carew 503. V. Duckworth (as to note of dishonour (r) Blackhan v. Soren, supra, of cheque], L. R. 4 Ex. 313. (») Eammond t. Bufrene, 3 Camp. (o) Ex parte Seath, 2 V. & B. 240 ; 145. See Thackray v. Blaekett, and 2 Bose, 141 ; Cory v. Scott, 3 B. & Blackhan v. Doren, supra. Aid. 619 ; Iforton v. PickeHng, 8 B. & T 2 276 MERCANTILE CONTRACTS. Notice. that the bill will be paid, he was entitled to notice (m). "No ' case," said Lord EUenborough, C. J., in Orr v. Magmms{x), " has gone the length of extending the exemption (from the necessity of giving notice) to cases where the drawee had effects of the drawer in his hands at the time of the bill drawn, though the balanrse might vary afterwards, and be turned into the opposite scale ; it would be very dangerous and inconvenient, merely on account of the shifting of a balance, to hold notice not to be necessary." For as regards the indorser notice is dispensed 'with — " ( 1 ) Where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he iadorsed the hill(j^) ; (2) where the indorser is the person to whom the bill is presented for payment ; (3) where the bill was accepted or made for his accommodation " (z). Immediately upon receiving (a) the notice, the party to whom it is given becomes liable to an action at the suit of the holder, unless the money due upon the bill or note be then paid. It would seem that non-tender is the breach, and that a subsequent tender would not avail. A foreign biU dishonoured by non-acceptance or non-payment must be protested (J), it is said, and information of the protest sent with the notice (c). It was once thought that a copy of the protest must be sent, unless, indeed, in the case of a person who, having drawn or indorsed a bill abroad, came to this country and received the notice here {(f). But it is now settled that it is sufficient to send information that the bill has been protested, without any copy of the protest (e). Inland bills require no protest, but are usually noted ior non-payment, a ceremony (m) Lafitte V. Slatter, 6 Bing. 623 ; on the face of it to tie suoli." Turner v. Samson, 2 Q. B. D. 28. (c) In Ex parte Lowenthal, L. R. 9 (x) 7 East, 359, at pp. 361, 362. Ch. 591, the Lords Justices expiessed (y) See Leaeh v. Sewitt, i Taunt. an opinion that a notice simply stat- 731. ing the bill had been ' ' duly presented (z) Sect. 50 (2) (d). See Turner v.^ and dishonoured," was sufficient. Samson, 2 Q. B. D. 23. {d) Cromwell v. Hynson, 2 Esp. .511 ; (o) Casirique v. Bemaho, 6 Q. B. KoHns v. Gibson, 3 Camp. 334 ; 1 M. & 498. S. 288 ; B. N. P. 271. (i) Sect. 51 (2). The section only (e) Goodman t. Sarvey, i Ad. & E, applies to " a foreign bill appearing 870. BILLS OF EXCHANGE AXI) PROMISSORY NOTES. 277 ■which is, however, quite tinneoessary (/). When a bill is noted Notice. or protested, it must he noted on the day of its dishonour — a point which had not hitherto been settled {g). A protest is a minute of the non-acceptance or non-payment, accompanied by a solemn declaration on the part of the holder against any loss to be sustained thereby (A). It is made out by a notary public, who, at a seasonable hour in the course of the same day in which the bill has been dishonoured, again presents or causes it to be presented, and, if payment be again refused, makes a minute, consisting of his initials, the day, month and year, and reason, if assigned, of non-payment. This minute, the making of which is termed noting the bill, is a mere memo- randum, from which the notary may afterwards draw up a protest at his leisure {i), but, per se, it is of no legal effect {k). The protest must contain a copy of the bill ; it must be signed by the notary ; and it must specify the person at whose request the bill is protested, the place and date of protest, the cause or reason for protesting the bill, the demand made, and the answer given, or the fact that the drawee or acceptor could not be found (/). The protest must, in this country, be stamped (m). If the services of a notary cannot be obtained at the place where the bill is dishonoured, any householder, or " substantial resident of the place," may, in the presence of two witnesses, give a certificate attesting the dishonour of the bill, and the (/) Sect. 61 (1). See the subject the said bill of exchange, discussed, Chitty on Bills, 8th edit., (Signed) A. B. pp. 600, 601. G. H. [g) Sect. 51 (4) ; and for the excep- I. K. tions, see sect. 51 (6) (a), and (9). As to stamp, see 33 & 34 Vict. o. 97, (A) The form given in *the Krst s. 116, and sohed. Schedule of the Act is as follows : — (i) Sect. 93. See Chaters v. Bell, 4 "Know all men that I, A. B. [house- Esp. 48. Even in the case of a pay- holder] of , in the county of , ment supra protest this may be after in the United Kingdom, at the request action: Geralopulo v. Wieler, 10 C. B. of C. D., there being no notary public 690. available, did on the day of , (A) leftley v. MUh, 4 T. R. 170 ; 188 , at , demand payment [or Sogers v. Stephens, 2 T. R. 713; Gale acceptance] of the bill of exchange v. Walsh, 5 T. R. 239 ; B. N. P. 271 ; hereunder written from E. P. , to which Orr y. Maginnis, 7 East, 359. demand he made answer [state answer, (I) Sect. 61 (7). if any] : wherefore I now, in the pre- (m) 33 & 34 Vict. o. 97, s. 116, and senoe of G. H. and I. K., do protest ached. 278 MERCANTILE CONTRACTS. Notice. certificate will operate as ii it were a formal protest of the bill {m). In ordinary cases the hiU is protested for non-accept- ance or non-payment at the place where it is dishonoured («). But a hill which is presented through the post and returned hy post dishonoured, may be protested at the place where it is returned ; and a biU payable at the place of business or resi- dence of some person other than the drawee which has been dishonoured, by non-acceptance, must be protested for non- payment at the place where it is payable (o). The protest of a foreign bill is excused by any circumstance which would excuse the giving of notice, e. g., when, after the exercise of reasonable diligence, notice cannot be given (jo). " Where the acceptor of a bill becomes bankrupt or insolvent, or suspends payment before it matures, the holder may cause the bill to he protested for better security against the drawer and in- dorsers" {q). The only consequence of such a " protest for better security" in the United Kingdom is that the bill may be accepted by .any person for honour (r). It is not necessary to preserve the right of taking recourse against the drawer or indorser before maturity of the bill. Section VII. — Payment. Payment. The payment must of course, subject to the provisions of the Act with respect to crossed cheques (.s), be to the holder or Ms. representative {t). Where money is paid into a bank on the joint account of persons not partners in trade, the bankers are not discharged by payment of the cheque of one of those persons without the authority of the other {u). There are some rules respectiag payment of a forged note or (m) Sect. 94. («). Sect. 51 (6). (o) Sept. 51 (6) ; and compare 2 & 3 Will. 4, 0. 98 (repealed). [p) Sect. 61 (9). (?) Sect. 51 (.5). (/■) Sect. 65. Ex parte Wacherlath, 5 Ves. 574. («) Sect. 82. (<) Sect. 59. (m) Innes v. Stephenson, I M. & Rob. 145. BILLS OF EXCHANGK AND PROMISSORY NOTES. 279 bill of which it is necessary to take notice. In general, a forged Payment, or an unauthorized signature is wholly inoperative («). But, as we have seen, the acceptor is precluded from denying against a holder in due course the genuineness of the drawer's signature {y). If the drawee have not accepted, but pay a forged bill or note, he cannot recover his money back from such a holder ; at all events, not unless he discovers the forgery and gives notice that very day before the position of the holder is changed (z). And the same diligence is incumbent on one who pays for the honour of a person whose signature has been forged («). Nor will he who pays a forged bill or note have any remedy against the person whose signature has been forged, unless that person, by his gross negligence, facilitated the commission of the forgery {b) ; in which case, if the negligence was the proximate cause of the loss, he will have to bear it. Thus, where Hall drew upon his banker for Zl., writing the sum in words and in figures, and the bearer of the cheque erased the words and figures and altered it into a cheque for 200/., the banker who had paid a cheque thus altered was forced to bear the loss(c). But where a cheque for 601. 2s. 2d. was drawn so carelessly that the agent who presented it, and who had previously filled it up, was enabled to introduce a figure of 3 before the figures 50, and the words " three hundred " before the word " fifty," it was held that the drawer, not the banker who paid it in its altered state, should be the sufEerer (c^). A signature by pro- curation being a notice that the agent has a limited authority to sign, the party paying must ascertain the authority of the («) Sect. 24. Sobarls v. Tucker, 16 1 C. P. 463. Q. B. 560; Vagliano v. Bank of Mng- (i) Johnson v. WindU, 3 Bing. N. 0. land, 23 Q. B. D. 243. 225 ; Vagliano v. Bank of England, 23 {y) Sect. 54 (2). Smith v. Che$ter, 1 Q. B. D. p. 262. T. R. 654 ; Ashpitel v. Bryan, 3 B. & (c) Hall v. Fuller, 5 B. & C. 750. S- *74. (f^) Young v. Grote, 4 Bing. 253. («) Price V. Mai, 3 Burr. 1364 ; See further as to negligence being the Smith V. Mercer, 6 Taunt. 76 ; Cooks v. proximate cause of forgery, Arnold v. Masterman, 9 B. & 0. 902 ; Wilkmaon Cheque Bank, 1 0. P. D. 258 ; Halifax v. Johnson, 3 B. & 0. 428 ; Matter v. Union v. Wainwright, L. R. 10 Ex. Maidstone, 1 C. B. N. S. 273. 183 ; Vagliano v. The Bank of England, (a) Wilkinson v. Johnson, ubi supra ; 23 Q. B. D. 243. compare Phillips v. Ilk Thurm, L. E. 280 MERCANTILE CONTKACTS. Payment, person SO signing (e). So, likewise, a banter must ascertain the genuineness of all necessary indorsements of a bill (/). Sect. 60 (re-enacting 16 & 17 Vict. c. 59, s. 19) enacts that a banker who pays in good faith and in the ordinary course of business {g) a bill payable to order on demand, that is, a cheque .(sect. 73), is not bound to show that the indorsement of the payee or of any subsequent indorsee was genuine or autho- rised {h). Section 60 protects only a hanlter ; the drawer may, in the absence of negligence conducing directly to the fraud, recover the money from the person who received it from 'the banker imder a forged indorsement (»). This section does not apply to a bill the signature of the drawer of which is forged (A;). The person paying must also take care that there is. no re- strictive indorsement {f) ; and it is dangerous to pay before the instrument is due, as the bill may, in certain circumstances, be re-issued (»w). When a bill is paid it is the duty of the holder to deliver it up to the person paying (w). Payment supra protest. — ^Aiter a bill has been protested for non-payment, any person may pay it supra protest for the honour of any one liable thereon ; and he who does so is subro- gated to the rights and duties of the holders as regards the party for whose honour he pays (o). Before he so pays he must take care that the bill is protested (js). Such a payment is usually made upon dishonour [q). How enforced. — Payment of a bill or note may be enforced by action against the drawee, if he has accepted, and against the {«) Sect. 25. Stagg v. Elliott, 12 C. 373. B. K. S. 373. [k) Orr v. XTnion Bank, 1 Maoq. 513. (/) Sobartsv. Tucker, 16 Q. B. 560; (?) Sect. 35 (1). Lloyd y. Sigourmy, , Vagliano v. Bank of Mnglamd, 23 Q. B. 5 Bing. 626. D- P- 256, (ot) Sect. 37. {g) Smith t. TJnion Bank, 1 Q. B. D. (») Sect. 62 (4). 31- (o) Sect. 68 (6). {h) Charles v. Blaekwell, 2 0. P. D. (p) Sect. 68 (3). ^^1- (?) Sect. 68 (1). Vandewall v. (i) 0^rfc«v.5««««,L.Ii,.9C.P. 193; Tyrrell, M. AM. 87; Geralopulo v. Bohbett T. Pinkett, 1 Ex. D. 368, p. Wieler, 10 C. B. 690. BILLS OB- EXCHANGE AND PROMISSORY NOTES. 281 drawers or indorsers, if the bill has been dishonoured either by Payment, non-acceptance or non-payment. All these parties may be sued either in the same or different actions, and either at the same time or successively (s). In general, the drawer or indorser of a bill to whom it has been re-indorsed has no remedy upon it against any intermediate parties, because he would be liable over to them ; yet if it were indorsed by them under circumstances excluding their right to have recourse to him, for example, "without recourse" (<), or as sureties to him for the acceptor, he may sue upon them («). A drawer who pays a bill to the order of a third person may enforce payment against the acceptor (x). A payer for honour is subrogated to the rights and duties of the holder (y). It would seem that an indorser who paid would be entitled to all the benefit of the securities deposited with the holder by the acceptor (c). What recoverable. — The holder is generally entitled to recover, from any party liable on the bill, the money -expressed to be payable on the instrument, with interest from the time of pre- sentment for payment if the biU is payable on demand, and from the maturity of the bill in any other case, together with the expenses of noting and protest if necessary (a). Such amount wiU be deemed liquidated damages, and may be re- covered under R. S. C. 1883, Ord. XIV. r. 1 (b). On a bill dishonoured abroad the holder may, in lieu of the above damages, recover from the drawer or indorser the amount of the re-exchange, that is, the loss resulting from the dishonour, («) E. S. 0. 1883,"_0. 16, rr. 4, 5; Wilkmson v. Vhwin, 7 Q. B. D. 636; Smith V. Woodcock, 4 T. E. 691 ; Wilders v. Stevens, 15 M. & W. 208. Goodman v. Crmner, 18 Q. B. 757. [x) Sect. 69(a). Woodward y. Fell, As to consoUdation of actions, see L. E. 4 Q. B. 55. O. 49, r. 8. See, as to proceedings for {y) Sect. 68 (5). Goodall v. PolhiU, costs after payment, London and Sub. U L. J. C. P. 146 ; Ex parte Bank v. Walkimhaw, 25 L. T. N. S. L. E. 6 Eq. 344. 704. It is usual to proceed summarily (z) Duncan, Fox ^ Co. t. North Wales under O. 14, r. 1. Bank, 6 App. Cas. 1. (0 Sect. 37. (a) Sect. 67 (I). («) Bishop V. Emjward, i T. E. 470; («) As to interest reserved by the Morris v. Walker, 16 Q. B. p. 594 ; bill, see sect. 9. 282 MERCANTILE CONTKACTS. Payment with interest until the time of payment (c). A bill of exchange, drawn by an Australian bank on its London agent, was indorsed to another Australian bank and presented for acceptance at the London branch. Acceptance was refused. It was admitted that, i£ the holder sent out the bill to AustraKa, he would be allowed, under the South Australian Bills of Exchange Act, 1884, 10 per cent, interest. North, J., held that the holder could recover only the amount of the re-exohange with interest. " Those cases " (referring to Allen r. Kemble (d), and Gibbs v. Fremont (e)'" show clearly that the liability to damages is to he measured according to the law of the country where the contract which was broken was entered into" (/). Sect. 67 (1), he held, was limited to bills dishonoured at home, and sect. 57 (2) to bills dishonoured abroad, that is, at a place foreign to that where the bill was drawn or indorsed, and the only damages were those specified in sect. 57 (2). Though the bill be returned through ever so many hands, the drawer will be liable for the re-exchange on each return (g). Before the passing of the Bills of Exchange Act, it had been decided that, in the event of the drawer paying the holder of the bill damages for re-exchange, the drawer could recover the amount from the acceptor (A) ; and the Act has made no change in this respect («'). (c) Sect. 57 (2). Ex parte Roharts, Sme v. Fompe, 8 C. B. N. S. 538. 18 Q. B. D. 286 ; In re Commercial ETidenoe is not admissible of a custoin Bank of South Australia, 36 Oh. D. that the holder shall instead of re- 522. exchange pay him what the plaintiff (d) 6 Moo. P. 0. 314. gave him for the purchase of the bill : (e) 9 Ex. 25. Ibid. But see ?F»W«M« v. .4yer», 3 App. (/) In re Commercial Bk. of S. Aus- Gas. p. 14S. tralia, 36 Oh. D. at p. 526, per North, (A) In re General South American Co., J. See, also, Bx parte Sobarts, 18 Q. 7 Ch. D. 637. B. D. 286. (») £x parte Sobarts, 18 Q. B. D. (g) Mellish T. Simeon, 2 H. Bl. 378 ; 286. De Tastet v. Baring, 11 East, 266 ; BILLS 01' EXCHANGE AND TROMISSOKY NOTES. 283 Section YIII. — Resistatice against Payment. If the person sued upon a bill or note tMnks proper to defend Eesistance himself, he either denies that he was ever liable, or, admitting pf^ent. his liability to have existed, contends that it has been deter- mined. First, if he deny that he was ever liable, he may rely upon the absence of any of those circumstances which are above shown to be essential to the holder's right to recover, the presence of which he has not by his own act admitted {h) ; or on the insufficiency/ or illegality of the consideration for his liability. Insufficiency of Consideration. — Contrary to the general rule which prevails respecting other simple contracts, a bill or note is always primd facie presumed to have been given for a suffi- cient consideration (l) . " Valuable consideration " is declared to be "any consideration sufficient to support a simple con- tract" (m), and to include " an antecedent debt or liability " (w). The presumption as to value is open to rebuttal, and the acceptor as against the drawer, the indorser as against the indorsee, may show that he has received no consideration, or no sufficient consideration, for his liability (o). The former circum- stance may be a defence in toto {p) ; the latter is a defence 2^^'o tanto {q), provided the deficiency of consideration is ascertained (A) Vide ante, pp. 260, 261, 268, 278, Spimor v. Spincei; 2 M. & G. 295 ; 280, 281. Astley v. Johnson, 3 H. & N. 137. la [l) Seot. 30 (1), and sect. 27 (2). Wells v. Hopkins, the bill was given (»i) Seot. 27 (!) (a). for hops to be supplied according to (») Seot. 27 (1) (b). Currie v. Misa, sample. Inferior hops having been L. R. 10 Ex. 163 ; Stott v. Fairlamb, supplied, but not accepted, the bill 53 L. J. Q. B. 47. faUs to the ground : accord. Hooper y. (o) Seot. 28. Bell v. Gardiner, 4 Treffry, 1 Exch. 17. In Jones v. Jones, M. & G. 11, where a note had been 6 M. & W. 84, a plea that the biU given in renewal of a bill satisfied by was the price of an estate bought alteration. The payee of a promissory without writing, was held bad, unless note given without consideration is not it also state a refusal to convey. entitled to claim as for a debt in the {q) Agra Bank v. Leighton, L. R. 2 administration of the donor's estate. Ex. at p. 64 ; Warwick v. Nairn, 10 In re Wliitaker, 37 W. R. 673. Ex. 762 ; Cook v. Lister, 13 C. B. N. S. {p) Welh V. Sopkim, .5 M. & W. 7 ; 543. 284 MEKCAKTILE CONTRACTS. Besistauce against payment. and liquidated, for otherwise the remedy is by coimterelaim or cross action (r) . He may also protect himself on the ground that his signature was obtained by duress, or fraud (s) ; or that the biU or note has been lost, improperly converted, or stolen (t). These defences are available against a holder who has not given value for the bill or note (m). But they may be rebutted by the fact that the holder is a " holder in due course," that is, that he took the bill or note in good faith and for value, and that he had no notice of any defects in title (x) ; where that is the case, it will be no defence that the bill was originally accommodation paper, and known by the holder so to be(y). Every holder is prima, facie presumed to be a holder in due course, that is, he will be presumed to have acquired his interest bond fide and for value, until, in an action, it is admitted or proved that the acceptance, issue, or indorsement is affected with fraud or illegality, in which case the burthen of proof is shifted, unless and until the holder proves that subsequent to such fraud or illegality he has given value in good faith (s). If a person holding a biU for a specific purpose — for example, for the benefit ()•) Morgan v. Hiehardson, 1 Camp. 40, in notis ; Fleming v. Simpson, ibid. ; Forman v. Wright, 11 C. B. 481 ; Solonum v. Turner, 1 Stark. 51 ; Tye T. Gwynne, 2 Camp. 346 ; Moggeridge y. Jones, 14 East, 486 ; Spiller v. West- lake, 2 B. & Ad. 155 ; jRichards v. Thomas, 1 C. M. & R. 772 ; Day v. Nix, 9 Moore, 169 ; Warwick \. Nairn, 10 Exoh. 762. Undervalue may be material in showing absence of bona fides in the holder: Jones v. Gordon, 2 App. Cas. 616. (s) Sect. "29 (2). Whistler v. Forster, 14 C. B. N. S. 248. He may also spply to set the bill aside (Smith v. JTay, 7 H. L. Oa. ,750), or to restrain the circulation of the bill; and see that case as to what fraud will suffice. (t) Sect, 21 (1). Grant v. Vaughan, Burr. 1616 ; Peacock v. Rhodes, Dougl, 633, at 636 ; Gill Y, Gubitt, 3 B. & C. 466. See cases collected ante, sect. 3. Ab to lost bills, see post, p. 298. («) That i^, acquired the legal right : see Whistler v. Forster, 14 C. B. N. S. 248. {x) Sect. 29 (1). If on recover- ing the amount, he would hold part only of the money beneficially, and the rest as a trustee, he nevertheless may recover all : Seid v. Furnival, 1 C. & M. 638 ; Cole v. Cresswell, 11 Ad. & E. 661 ; Sroim v. Rivers, Dougl. 472. (y) Sect. 28 (2). Charles v. Maraden, 1 Taunt. 224. (z) Sect. 30 (2); sect. 90. Tata^n V. Baslar, 23 Q. B. D. 346 ; Mills v. Barher, 1 M. ifeW. 425 ; Jacob v. Em- gate, 1 M. & Eob. 445 ; Edmunds v. Groves, 2 M. & W. 642; Sarvey v. Towers, 6 Exoh. 656 ; French v. Archer, 3 Dowl. 130 ; Low v. Chifney, 1 Bing. N. C. 267. See Heath v. Samsom, 2 B. & Ad. 291 ; Pater son v. Kardacre, 4 Taunt. 114 ; Wyat v. Campbell, M. & M. 80 ; Mann v. Lent, 10 B. & C. 877; Whitaker v. Edmunds, 1 Ad. & E. 638 ; Percival v. FrampUm, 2 C. M. & R. 180. BILLS OF EXCHANGE AND PllOMISSOKY NOTES. 285 of the drawer or acceptor — indorses it over in breach of the Resistance . 1 ■ against trust reposed in him, an indorsee who has notice of the trust at payment. the time of the indorsement cannot acquire any better right or title to the bill than the indorser had {a). It is not sufficient for the purpose of casting such a suspicion on the holder's title as would call on him to prove that he had given value, to show that the bill was an accommodation bill; for that purpose it should be shown that' the bUl was obtained from the acceptor, or some person between him and the holder, fraudulently (b). When a biU or note is taken by the holder overdue, he takes it subject to any defects of title affecting it at its maturity, or, as they used to be called, the equities attaching to the bill, that is, such equities as naturally arise out of the bill transaction, and are not merely collateral (c). A right of set- off would not be such an equity (rf) ; on the other hand, the fact that a bill was purchased with another person's money would constitute such a defect (e). This rule does not apply to over- due cheques (/). Illegality of Consideration. — Another ground of defence against an immediate party to a bill or note is the illegality of the con- sideration (g) ; as that the bill or note was secretly given for join- ing in the acceptance of a composition (h) ; for prostitution (i) ; [a) Solomons v. Bank of England, 13 Saywood v. Chambers, 5 B. & Aid. 753 ; East, 135, n. ; Whistler v. Forater, 32 Bryant v. Christie, 1 Stark. 329 ; L. J. C. P. 161 ; U C. B. N. S. 248. Leicester v. Ease, 4 East, 372. See (A) Sects. 28 (2), 29 (2), 30 (2). Hall Yomg v. Timmim, 1 Tyr. 237. V. Fealherstone, 3 H. & N. 284 ; Fetty (h) Vide oases as above, note (g). V. Cooke, L. R. 6 Q. B. 790. \i) Walker v. Parkins, 3 Burr. 1668. (c) Sect. 36 (2). Brown v. Davies, Past seduction is not an illegal oon- 3 T. R. 80 ; Barough v. White, 4 B. & sideratiou : Annandale v. Sarris, 2 P. C. 326. See ante, p. 263. Wms. 432 ; Cray v. Rooke, Eorr. 163 ; {ft) Quids V. Harrison, 10 Exch. 572; and past cohabitation has been said to In re Overend, Gurney ^ Co., L. R. be a good consideration: Turner v. 6 Eq. 344. Vaughan, 2 Wils. 339, per Bathurst, J. ; (e) In re Furopean Bank, L. R. 5 Ch. and Ayerat v. Jenkins, 16 Eq. 275, 358. But neither past seduction nor cohabi- {/) ZondonandCotmtyBankv.Groome, tation is a sufBcient consideration to 8 Q. B. D. 288. support an agreement with a woman : {g) Sect. 29 (2). Knight y. Sunt, 5 Beamtumt v. Meeve, 8 Q. B. 483 ; or Bing. 432 ; Britten t. Hughes, 6 Bing. as it would seem, a bill or note. 460 ; Blogg v. Pinkers, Ry. & Moo. 125 ; 286 MERCANTILK CONTRACTS. KesiBtance payment. for dropping a criminal prosecution («') ; for recommendation to a public office (k) ; in pursuance of a smuggling contract {I) ; for money lost by gaming or betting on the sides of persons so gaming ; money knowingly lent for such gaming or betting, or lent at the time and place of such play, to any person then gaming or betting, or who shall, during the play, play or bet (m) ; for the amount of a wager upon any branch of the public re- venue (w) ; or for spirituous liquors sold in small quantities con~ trary to the stat. 24 Geo. 2, c. 40, s. 12 (o) ; or for agreements of maintenance and champerty (^). Bills given in respect of a wager are, by 8 & 9 Vict. c. 109, made void, but the onus of proving that a holder gave no value lies on the defendant (j). Payment by the drawer of the acceptor's bets on horse races is good consideration (r). "Where the consideration of a bill or note is partly illegal, the security, being entire, becomes void in toto (s), though the plaintiff may still, without using the bill or note, recover that part of the consideration which is good {t). If a bill or note given for an illegal consideration be renewed, the new instru- ment is also void (m), though not, if it be so reformed as to exclude that pffirt^ of' the consideration which was objeetioii- able (a;). ' (i) Collins V. Blcmtern, 2 Wils. 341, 1 Sm. L. C, 9th ed. p. 398 ; Keir y. Zeeman; 6 -Q.- B. 308; 9 Q. B. 371. But see Flower v. Sadler, 9 Q. B. D. 83 ; 10 Q. B. D. 572 (C. A.) ; and see Mrown v. Brine, 1 Ex. D. 5 ; JFivaz v. NieholU, 2 0. B. 501 ; Mastei-s v. Ibherson, 8 C. B. 100 ; Clubb v. Sutson, 18 0. B. N. S. 414. (A) Sanington v. Dtichatel, 1 Bro. C. 0. 124. {I) Guichard v. Roberts, W. Bl. 445 ; Banks v. Colwell, cited 3 T. R. at p. 81. (m) 9 Anne, c. 14 (o. 19, revised ed. Statutes), which is not repealed, as to such securities, by 8 & 9 Vict. 0. 109 ; Batty v. Marriott, 5 C. B. 818 ; Say \. Ayling, 16 Q. B. 423. See Lloyd v. Gurdon, 2 Swanst. 180 ; Jeffreys v. Walter, 1 Wils. 220 ; Lynall V. Longbotham, 2 Wils. 36 ; Shillito v. Theed, 7 Bing. 405. (m) Shirley v. Sankey, 2 B. & P. 130; Atherfold v. Beard, 2 T. E. 610. (o) Scott V. Gillmore, 3 Taunt. 226. {p) Bradlaugh v. Newdegale, 11 Q. B. D. 1. (}) Mtch V. Jones, 5 E. & B. 238 ; Belfast Banking Co. v. Doherty, i Ir. li. E. Q. B. D. 124. ()•) Oulds V. Sarrison, 10 Ex, 572. (s) Scott V. Gillmore, supra. See Cruickshanks v. Base, 1 M. & Roh. 100. (t) Sobinson v. Bland, Burr. 1077; Wood V. Benson, 2 0. & J. 94. (m) Chapman v. Black, 2 B. & Aid. 688 ; Wynne v. Callander, 1 Euss. 293 ; Freston v. Jackson, 2 Stark. 237 ; Say V. Ayling, 16 Q. E. 423. {x) See Preston v. Jackson, ubi sup. ; Flight Y. Reed, 1 H. & C. 703 ; Snh- BILLS OF EXCHANGE AND PROMISSORY' NOTES. 287 Formerly, in some cases of illegality, the bill was void even Reslstanoe in the hands of a holder bond, fide, and for value. These were, payment, where the consideration was, either wholly or in part, for money lost or applied in any of the modes of gaming ahove enumerated (2/). But by the stat. 5 & 6 WiU. 4, c. 41, it is enacted, s. 1, that no bill or note shall be absolutely void on any of the above grounds, but that any bill or note that would have been void on any of the above grounds shall be deemed to have been drawn, accepted, made or taken for an illegal considera- tion (z) ; and (s. 2) that if any person shall make, draw, give or execute any such note or biU, and shall pay to any indorsee or holder thereof the money thereby secured, or any part thereof, such money shall be deemed to have been paid for and on account of the person to whom such bill or note was origi- nally given upon such illegal consideration as aforesaid, and shall be a debt due from such last-mentioned person to the person who shall have so paid the money. When the illegality was such as to make the instrument void in the hands even of a bond fide indorsee, yet i£ it were not originally made on that consideration, such illegality in the consideration on which it was afterwards transferred, was no defence against such indorsee, if he was not, in making out his title, bound to state or prove the signature of the person who made the illegal transfer (a) ; the authorities were contradictory upon the question whether such illegality was a defence, when he was bound to state the signature and prove it (6). As to gaming securities, it was never any objection to an action against the indorsee that the bUl or note was made on a gaming consideration ; for, though the statute directed that they should be void to all intents and purposes, that meant only so far as was necessary to further the purposes of the Act; and, to exempt an indorser from suit, might have assisted a winner, whom the statute meant to ner v. Siehardsm, Bayl. 6th ed. p. (a) Daniel v. Oartowy, 1 Bsp. 274. 527. (*) Farr y. Miasm, 1 East, 92; (y) BotDyer \. Bampton, 2 Str. 1155. Daniel\. Cartony, -abisTipTa; Zoweay. {z) See Hitcheockv. Way, 6 Ad. & E. Mimaredo, 1 Stark. 385. 943. 288 MERCANTILE CONTRACTS. Resistance punish, not to protect (c). The Bills of Exchange Act enacts payment. that a " holder in due course," that is, one who has taken a hill complete and regulax on the face of it in good faith and for value, is not affected by illegality in the inception of the bill, if he had no notice of any defect in the title of the person who negotiated it. And any holder who derives his title from a holder in due course, and who is not himself a party to any fraud or illegality affecting it, has all the rights of the holder in due course against the acceptor and all parties to the biU prior to the holder in due course [d). Consequently a bill originally given for an illegal consideration may be sued upon by an indorsee for value without notice. Bills or notes, how- ever, may be absolutely void against both immediate parties and holders in due course, either because the alleged parties did not make them, or had not the capacity. Such are (subject to exceptions (e)) forged instruments ; or notes issued by companies not capable of making them ; e.g., a. railway company (/). Again, the defendant may admit his. former liability, but contend that it has been determined by the suspension, ex- tinguishment, satisfaction, or discharge of the holder's right of action. We will say a few words concerning each of these grounds of defence. 1st, Of Suspension. — If the holder renew the bill or note, that is, if he take another biU or note from the defendant in continua- tion of it, his right of action on the first biU or note is sus- pended {g) till he has satisfied the defendant that he has no claim against him on the second, e. g., by delivering it up. There may, (e) Edwards v. Sick, 4 B. & Aid. bills accepted by a third person, whioh. 212. are not negotiable by the party gfiving [d) Sect. 29 (2), (3) ; Ex parte Pyke, them, will not suspend the remedy: 8 Ch. D. 754. James \. Williams, 13 M. & W. 828 ; («) See ante, pp. 251, 255, 267. Williams v. James, 2 Exch. 798. (/) Bateman v. Mid Wales Ky. Co., Whether taking a bill really operates L. E. 1 C. P. 499. as a suspeusion, or only as a condi- ig) National Savinc/s Bank v. Tranah, tional payment, see Belshaw v. Bush, L. E. 2 0. P. 556 ; Price v. Price, 16 11 0. B. 191 ; Bottomley y. Nuttall, 5 M. & W. 232 ; Currie t. Misa, L. E. C. B. N. S. 122. 10 Ex. at p. 163. But the receipt of BILLS OF EXCUANGj); AND PROMISSORY NOTES. 289 after a hill or note has been drawn or made, be a binding verbal Resistance promise for valuable consideration to renew it when due (A), payment. But the defendant who relies on such a promise must show that he took proper steps to obtain the renewal (?). And such a verbal promise must not be contemporaneous with the drawing of the biU or note, or, if it be made to an indorser, with his indorse- ment ; if it be, the law will not enforce it ; for to do so would be to incorporate with a written contract an incongruous parol condition, which is contrary to first principles {k). But a con- temporaneous written agreement for renewal will afford an answer as between the parties to it {I). 2ndly, Extinguishment or Merger. — The defendant's liability on the bill or note will be extinguished or merged, if the plaintiff obtain from him a security of a higher description, e. g., a judgment upon it against him {rri). Such a judgment is not per se a satisfaction of the debt, nor will it, until satisfaction, prevent the holder from proceeding on the bill or note against any other distinct party to it {n) . A judgment, though un- satisfied, against one of several joint acceptors or makers, is a good defence to an action against the others (o). But it is not so if the acceptors or makers are joint and several (p). 3rdly, Satisfaction or Payment. — Satisfaction is by actual pay- ment of the bill or note, or what is equivalent to payment {q) ; and this releases all parties subsequent to the person making it, (A) Eoare v. Graham, 3 Camp. 57, at paid if a certain event happen : Foster p. 68, per Lord Elleniorough. See Gib- v. Jolly, 1 C. M. & E. 703. See, how- Jon V. Scott, 2 Stark. 286. But such an ever, s. 21 (2) (b). agreement would not operate as a (/) Sect. 21 (2). Young v. Amten, suspension. If it afford any answer L. K. 4 C. P. 553. it would be by way of uaiver or {m) Siddall v. Rawcliffe, 1 C. & M. satisfaction: Ford v. Beech, 11 Q. B. 487. 862 ; or defence upon equitable (n) Bao. Abr. Extinguishment, D. ; grounds. Olaxton v. Swift, 2 Shower, 441, 494 ; (i) Maillard v. Faye, L. K. 6 Ex. Lutw. 878 ; Sapling v. Mulhall, 2 "W. 312 ; Gibbon v. Scotl, ubi supra. B1.1235. (i) See Scare v. Graham, ubi supra. (o) King v. Scare, 13 M. & W. 494; T. Cru.r, L. K. 6 0. P. 37. Kendall v. Samilton, 4 App. Cas. 504 ; On the same principle, proof cannot Cambefort v. Chapman, 19 Q. B. D. be given of a parol agreement oontem- 229. poraneons with the making of the (p) Ibid, note, to the effect that it shall not be (?) Sect. 69 (1). S. — vox,. I. Tl 290 MERCANTILE CONTRACTS. Resistance against payment. as "well as aU prior parties for his accommodation. It differs from extinguisliment, inasmucli as, though the holder's claim may he extinguished as to some and not. as to others, yet if satisfied as to any, it is satisfied as to all of these parties (r). But payment of a hiU, even at maturity, by a drawer for value, who is also the payee (s), or by an indorser (t), or by a stranger (u) upon his ovra. account, vrall not discharge the acceptor (r) . . The payment must be by or on behalf of the drawee or acceptor (a;) . There may be a satisfaction ^ro tanto, as by part payment, or the receipt of dividends under a bank- Any material alteration of a bill or note after it has been issued, without the assent of all parties liable on the bill, avoids the bill, except as against a person who has made or assented to the alteration and subsequent indorsers (s). But if the material alteration be not apparent, a holder in due course may (r) Sard v. Shades, 1 M. & W. 153 ; Fierson t. Dtmlop, 2 Cowp. 571 ; Hx parte Wyldman, 2 Ves. sen. 113; Ewin T. Zancaster, 6 B. & S. 571 ; Windham T. Wither, Str. 515 ; Gillard v. Wise, 5 B. & C. 134 J Coo/c T. Zister,,, 13 C. B. N. S. 643. As to what may operate as a satisfaetion, see Sard y. Shades, supra ; Sibree y. Tripp, 15 M. kW. 23 ; Bell v. Smkley, H Exch. 631 ; Gaddard y. O'Brien, 9 Q. B. D. 37 ; by realising a security : Sills y. Mesnard, 10 Q. B. 226. (s) Sect. 69 (2) ; Johnson y. Kennion, 2 Wils. 262 ; Williams v. James, 15 Q. B. 498 ; Janes y. Braadhurst, 9 C. B. 173 ; see Ooak v. Lister, 13 0. B. N. S. 643. But in bank- ruptcy the holder of a bill who has been thus paid will not be allowed to prove against the acceptor for the whole amount: Mx parte Taylor, 26 L. J. Bktcy. 58; yet he may recover in an action the balance, as trustee for the drawer: Thornton v. Maynardjli. R. 10 0. P. 695. (t) Goodwin v. Cremrr, 18 Q. B. 757. («) Deacon v. Stodhart, 2 M. & G-. 317. If made on the acceptor's ac- count, he might adopt it: Jones v. Braadhurst, ubi supra ; Belshaw v. Bush, 11 C. B. 191 ; Simpson v. Eg- gingtan, 10 Ex. 845 ; see Walter v. James, L. E. 6 Ex. 124. (») Unless he were an accommoda- tion acceptor. See as to this, Strong v. Foster, 17 C. B. 201 ; Foaley v. Sarra- dine, 7 E. & B. 431 ; Solomon y. Davis, 1 Cab. & El. 83. {x) Sect. 59 (1). (y) Johnson v. Kennion, 2 Wils. 262 ; Bacon v. Searles, 1 H. Bl. 88 ; Fierson Y. Dunlop, Cowp. 671 ; Walwyn v. St. Quintin, 1 B. & P. 662. See Cook Y. Zister, 13 0. B. N. S. 643. (z) Sect. 64 (1). Master y. Millar, 4 T. R. 320; 1 Sm. L. 0, 9th ed. 825 ; Alderson v. Langdale, 3 B. & Ad. 660 ; Atlcinson y. Sawdon, 2 Ad. & B. 628 ; Sloman v. Cox, I C. M. & R. 471. An alteration even by a stranger in a material point will vitiate the instrument, as it was the laches of the holder in not keeping it safily. See the principle laid down and explained in DavidsonY. Cooper, 13 M. & W. 343 (Exch. Ch.) )ilLI,s 01' EXCHANGE AM) PKOMISSOKV .VOTES. 291 enforce payment of it according to its original tenour (a). This Resistance is an alteration of the common law. Even though the parties pfyj^nt. consent to such an alteration after issue, tlie instrument, though unimpeiichable by them, is a new contract, and the old stamp will not suffice (i), unless such alteration were made to correct a mistake, and render the hill what it was originally meant to have been (c). Alterations in the date (rf), sum payable, or time or place for payment, or addition of a place of payment without the acceptor's assent, or words expressing the value received to be on a particular accotmt (e), or adding a new maker or drawer (/), are material (g). But the insertion of a mei'e memorandum, giving the right place for payment, or the correction of the drawee's name to make it correspond with his acceptance, or nii alteration of the marginal figures, are, it has been held, not so (//) ; and an alteration perfectly immaterial to the rights of the parties will have no effect («'). Nor will the alteration affect its validity, if made with the consent of parties be/ore it has mued (k). A bill or note is muecl when it is first delivered complete in form to a person who takes it as holder (1) : and this is, primd facie, so soon as it is passed away by the drawer or maker, or (when the alteration is in the acceptance) accepted by the drawee {m). If a bill or note exhibit the appearance of (a) Sect. 64 (1). be a material alteration: Parry v. (i) Bowman v. Niehol, 5 T. R. 537. Nicholson, 13 M. & "W. 778. (o) Htjrom V. Thompson, 11 A. & E. (^) Sect. 64 (2). See Suffel v. Banh 31 ; Kershaw v. Cox, 3 Esp. 246 ; of England, 9 Q. B. D. 555 ; Leeds Jacob V. Mart, 6 M. & S. 142; Clerk y. Bank v. JFal/cer, 11 Q. B. D. 84. lilnckstock, Holt, 474. (A) Trapp v. Spearman, 3 Esp. 67; [d) Hirschman v. Budd, L. R. 8 Maraon v. Petit, 1 Camp. 82, n. ; Far- Ex. 171. With regard to cheques, j!(/iac v. -So«. 178, where Ste- in Owen v. Burnett, 2 C. & M. 353. phen, J., reviews the oases. (m) Batson v. Donovan, 4 B. & Aid. (A) Mayhew v. Eaines, 3 B. & 0. 21 ; Great Northern Sail. Co. v. Shep- 601 ; MowUyy. Some, 3 Bing. 2. herd, 8 Exoh. 30; Belfast and B. It. {I) NiehoUon v. Willan, 5 East, 607. Co. v. Xeys, 9 H. L. Ca. 556 ; Cahill See Van Toll v. South Eastern Rail. v. The London and North Western Rail. Co., 12 C. B. N. S. 75; Sarris r. Co., 13 0. B. N. S. 818. Great Western Rail. Co., 1 Q. B. D. (o) See these statutes in the Ap- 616- pendix. CONTRACTS VVJTH CARKIEBS. 307 land{p), for hire, shall be liable for the loss (q) of, or any injury Contracts to•\ ^ .1 • T-i '!• j*i.i with carriers. , any gold or silver com, gold or silver m a maniiiactuTed or unmamif actured state, precious stones, jewellery, watches, clocks, time-pieces, trinkets (r), biUs, bank-notes, orders, notes or secu- rities for payment of money (s), stamps, maps, writings, title- deeds, paintings (t)) engravings, pictures, gold or silver plate or plated articles, glass (ii), china, silks manufactured or un- manufactured, wrought up or not wrought up with other mate- rials (v), furs («), or lace [not being machine-made : 28 & 29 Vict. c. 94], contained in any parcels (y), or package (z), when the value (as) exceeds the sum of 10^. ; unless at the time of delivery at the office, warehouse, or receiving-house (h) of such carrier, or to his book-keeper, coachman, or other servant, the value and nature of such article or articles shall have been declared, and the increased charge, or an engagement to pay the same, ac- cepted by the person receiving the parcel (c) . By sect. 2, common carriers, on the delivery of such parcels or packages exceeding (p) This statute applies, though the carriage is to be partly by water, e.if., from London to Jersey, so as to pro- tect the carrier as regards the land journey : Pianeiani v. The Zondm and South Western Sail. Co., 18 C. B. 226; Le Conteur v. The London and South Western Rail. Co , L. E. 1 Q. B. 64; SaxendaU v. The Great Eastern Sail. Co., L. R. 4 Q. B. 244 ; Doohn v. Midland Rail. Co., 2 App. Cas. 792. But the Act does not apply to carriage by sea only: Peninsular and Oriental Co. V. Sand, 3 Moo. P. C. N. S. 272. iq) Infra, p. 308. (r) Bernstein v. Baxendale, 6 C. B. N. S. 261, overruling Sa^ey v. Mason, Car. & M. 45. («) Stoesiger v. The South JEaitern Sail. Co., 3 E. & B. 549. {t) In the sense of works of art : Woodward v. London $ North Western Ry., 3 Ex. U. 121. («J See Owen t. Burnett, 2 C. & M. 363; Bernstein v. Baxendale, 6 C. B. N. S. 251. (v) Silk dresses made up for wear come within these words : Flowers v. South Eastern Railway, 16 L. T. 329, overruling Davey v. Mason, Car. & M. 45. («) On the question, what falls within this denomination, aeeMayhewv. Nelson, 6 C. & P. 68. (y) The carriers will not be liable for things merely accessory to these articles: Wyld V. Pichjord, 8 M. & W. 443 ; Menderson v. London and North Western Railway, L. E. 6 Ex. 90 (picture frames) ; but they will be liable for things not accessory : Treadwin v. T/ie Great Eastern Rail. Co., L. E. 3 C. P. 308. («) Whaite v. The Lancashire and Forkshire Rail. Co., L. E. 9 Ex. 67. (a) Blankensee v. London and North Western Rail. Co., 46 L. T. 761. (i) See Syms v. Chaplin, 5 Ad. & E. 634 ; Stephens v. London % South Western Railway, post, p. 308. (tf) He may waive this; therefore, if he make no such demand, he will be liable : Behrens v. Great Northern Rail. Co., 6 H. & N. 366 ; 7 H. & N. 950. V 9, 308 MERCANTILE CONTRACTS. Contracts the value of 10/. and so declared as aforesaid, may demand an with camera. ijjpj,gg^gg^ j.^^^ ^f charge, to be announced by a notice in legible characters affixed in the office {d ) ; and persons sending parcels are to be bound by such notice, without further proof of the same having come to their knowledge. By sect. 3, carriers shall, if required, give a receipt for the parcel, acknowledging the same to have been insured (e), which receipt shall not be liable to any stamp duty ; and carriers who do not give such receipt when required, or affix the proper notice, are not entitled to the benefit of this Act, but shall be responsible as at common law, and liable to refund the increased charge. Carriers cannot, Sy a notice, limit their liability at common law to answer for the loss of any articles in respect whereof they are not entitled to the benefit of this Act (/). Every office of such common carrier shall be deemed a receiving-house {g) ; any one proprietor shall be liable to be sued, and no action shall abate for the want of joining any co-proprietor (A). Parties entitled to damages for parcels lost or damaged may recover the extra charges for insurance («). " Loss," in sect. 1, means a loss by the carrier of the article itself {k), and not a loss sustained by the owner by reason of delay, or a temporary loss (l). The Act does not protect a common carrier from liability to answer for losses or injury arising from the felonious acts (m) of any servant in his employ; {d) The form of notice, almost iini- 121. versally adopted by land carriers since (A) Sect. 5. See Syms v. Chaplin, 6 this Act, is given in the notes to Owen Ad. & E. 634. V. Burnett, i Tyrwh. at p. 133. See (j) Sect. 7. Draysen v. Home, 32 L. T. 691, as to {k) Seam v. The London and South defective notice. Western Sail. Co., 10 Ex. 793. {e) Feck v. If. S. S. Co., E. B. & E. (/) Millen v. Braseh, 10 Q. B. D. 958. 142. (/) Sect. 4. This means a mere (m) Sect. 8. The felony of a servant, public notice : Walker v. York and therefore, forms a good answer to a ptea North Midland Sail. Co., 2 E. & B. of this statute: Maehu v. The London 750; and see infra, p. 311, notes («) and South Western Rail. Co., 2 Exoh. and (J). 415; The Great Western Sail. Co. v. (g) This -would include an inn at Simell, 18 C. B. 575, So appa- which the carrier is in the habit of rently a misdemeanour would be a receiving goods: Stephens v. London good defence. But, " without gross and South Western Rail. Co., 18 Q. B. D. negligence," would form no answer to CONTRACTS WITH CARRIERS. 309 a term which includes not merely his own immediate servants, Contracts but those employed hy any person with whom he may contract '^ 1 to perform part of his duty (w). Nor does it protect any such servant from liahility to answer for the consequences of his own neglect or misconduct (o). The Act extends to a loss at a point, to which the goods have been negligently taken by the carrier, beyond the intended destination (p). Common carriers are not concluded as to the value of any parcel by the value declared {q). The carrier is not, in a case within the Act, liable for a loss of the articles named in the statute, though occa- sioned by the gross negligence of his servants, not amounting to a misfeasance (r). It was at one time supposed (s) that the notice directed by the 2nd section to be affixed in the office, was a substitute for the notice formerly employed, and that, imless this was put up, the person sending the goods was under no obligation to notify their description and value, and the carrier was liable for their loss. This view proved to be erroneous ; the Court of Exchequer Chamber held that the protection afforded by the 1st section is absolute, unless the value and nature of the articles be declared, and also that it applies not only in cases where the goods are delivered to the carrier at an office, but on the road, or at any other place. The operation of the Act is a plea, that the goods were received North Western Sail. Co., L. K. 9 Ex. on the terms of a notice uucomplied 93; M' Queen v. Great Western Rail, vfith: Mttv. The Great Western Sail. Co., L. R. 10 Q. B. 569; Turner Co., 11 0. B. 140. V. Great Western Railway, 34 L. T. («) Maehu v. The London and South 22. WettemSail. Co., 2 Exch. 415 ; Stephen (o) Sect. 8. V. London and South Western Rail. Co., (p) Morritt v. North Eastern Rail. 18 Q. B. D. 121, which goes beyond Co., 1 Q. B. D. 302. the former case. The servant of the [q) Sect. 9. proprietor of a receiving office for (r) Einton v. DihUn, 2 ft. B. 646, parcels intended to be sent by the overruling Owen v. Burnett, 2 C. & M. defendants' railway held to be a 353. And see Austin v. Manchester "servant" within the meaning of the Railway, 10 0. B. at p. 474; Morritt Act: Way v. Great Eastern Rail. Co., v. North Eastern Rail. Co., I Q. B. D. 1 Q. B. D. 692. See Doolan v. Mid- 302. land Rail. Co., 2 App. Cas. 792. As (s) Hart v. Baxendale, 6 Exch. to the evidence necessary to support 769. this reply, see Vaughton v. London and 310 MERCANTILE CONTRACTS. Contracts thus oonoiselv explained by Mr. Justice Patteson, in delivering with carriers. ,, . . « , , , ^ . ,,■. the opinion of that Court [t): — "The meaning of the legislature is, that aE persons sending goods of a particular description and value, whenever they deliver them to the carrier, are hound to give information of the nature and value of the articles. That is the first clause ; and the object of the legislature -was, that such information shall he given, whether the goods were delivered at the ofla.ce of the carrier, or at the sender's house, or on the road, or elsewhere, and clauses follow with certain provisions as to what is then to be done. Although the value and nature of the articles may be declared, it does not necessarily follow that the carrier would be protected ; but a difEerent clause must be acted on before his liability ceases. However, the first step to be taken is, that the sender of the goods notify their value ; then it is that the carrier is entitled to have a larger charge. He cannot have that larger charge, or save himself from responsibility, by saying, ' I wUl have such and such a sum of money ; ' but he must have a tariff stuck up in his oflfice, to notify to all persons sending articles of that kind what he proposes to demand beyond the usual charge. The notice required by the 2nd section to be afl&xed in the ofllce is not a notice that the carrier means to avaU himself of the benefit of the Act, and that aU persons who send articles of a particular description and value shall tell him that they are of that description and value, for the Statute requires that in the first instance ; but it is only a notice of what the extra charge is to be." Special contracts are not to be affected by this Act (u) ; but if they be not inconsistent vdth the exemption, it will apply (»). Independently of the Act, the carrier may make what terms he pleases. Whether the consignor has, in fact, assented to the conditions — whether, for example, he is bound by printed con- ditions on a receipt or ticket — may be a question of difficulty {x). But if a carrier receive goods upon the terms that he is only to be responsible for particular risks, he will only be liable for them (y) ; or that the owner shall take all risks of the convey- {t) BaxmdaU v. Hart, 6 Exch. at p. {v) BaxendaU v. Great Eastern Rail. 789. Co., L. R. 4 Q. B. 244. (») Sect. 6. As to what is a special (a;) See the judgment of Stephen, J., contract, see York, Newcastle, and Ber- in WatUns v. Rymill, 10 Q. B. D. 178. tviclc V. Crisp, 14 C. B. 527. [y) Scaife v. Farrant, L. R. 10 Ex. 358. CONTRACTS WITH CARRIE KtS. 311 anoe, and that he, the carrier, shall not be responsible for damage ContraotB howsoever caused, he wiU not be liable even for the gross negli- '- gence of himself or his servants (z). The ticket to this effect, delivered by the carrier to the person bringing the goods, may constitute such a special contract, and not a mere notice which would be void imder the 4th section (a). A notice, too, to the like effect previously served by the carrier on the person sending the goods, and not expressly dissented from by him, is sufficient to warrant a Jury in finding that there was such a special con- tract, and that he did not receive them as a common carrier {b) . The railway companies, which had acquired, by means of the facilities and powers conferred on them by Parliament, and their union with the canals, which, for the most part, had become attached to them, a monopoly in effect of the carrying trade throughout the country, proceeded to take advantage of these decisions, and create for themselves, through the medium of such tickets and notices, exemption from risk, even for their own carelessness and misconduct. In order, therefore, to pre- vent them from subjecting the public to unreasonable and improper conditions (c), " The Eailway and Canal Traffic Act, 1854 (d), provides, by s. 7 : — "That every such company as aforesaid shall be liable for the loss of, or for any injury done to any horses, cattle or other animals (e), or to any articles, goods or things in the receiving (/), forwarding or delivering (^) thereof, occasioned by the neglect or («) Austin V. Manchester, ^-c. Sail. Vict. o. 119, a. 16, the provisions of Co., 16 Q. B. 600 ; Austin v. Man- this Act are extended to steam vessels Chester, $o. Sail. Co., 10 C. B. 454 ; worked by railway companies in eon- Carr v. The Lancashire, ^c. Sail. Co., 7 nection with their traffic, in respect of Exch. 707 ; White y. The Great Western which they are enabled to take toUs : Sail. Co., 2 C. B. N. S. 7. Cohen v. South Eastern Bail. Co., 1 (ffl) Carr v. The Lancashire and Gfreat Ex. D. 217. Northern Sail. Co., 7 Exch. 707 ; (e) Dogs : Ashendon v. London and Austin V. The Manchester Sail. Co., 10 Brighton Sail. Co., 6 Ex. D. 190. C. B. 464 ; Oreat Northern Sail. Go. v. (/) EodgmanY. TheW. Midland Sail. Morville, 21 L. J. Q. B. 319. Co., 5 B. & S. 173 ; 6 B. & S. 560. (4) Walker v. The York and North (g) Sooth v. North Eastern Sail. Co., Midland Sail. Co., 2 E. & B. 750. L. R. 2 Ex. 173; Gill v. Manchester (c) Fardingtm% v. South Wales Sail. Sail. Co., L. R. 8 Q. B. 186. This Co., 1 H. & N. 392. See Wise v. word seems not to have been noticed Great Western Sail. Co., 1 H. & N. 63. in Shepherd v. Bristol and Exeter Sail. W 17 & 18 Vict. c. 31. By 31 & 32 r'o., L. R. 3 Ex. 189. This applies to 812 MEECANTILE CONTRACTS. Contracts default (k) of suoL. company or its servants (l), notwithstanding any with carrierB. notice, condition or declaration made and given by sucli company contrary thereto, or in anywise limiting such liahUity, every such notice, condition or declaration heing hereby declared to be null and void : Provided always, that nothing herein contained shall be construed to prevent the said companies from making such condi- tions with respect to the receiving, forwarding and delivering of any of the said animals, articles, goods or things as shall be adjudged by the Court or judge before whom any question relating thereto shall be tried, to be just and reasonable : Provided always, that no greater damages shall be recovered for the loss of, or for any injury done to any of such animals beyond the sums herein- after mentioned : (that is to say) for any horse, fifty pounds ; for any neat cattle per head, fifteen pounds ; for any sheep or pigs per head, two pounds ; unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared (m) them to be respectively of higher value than as above mentioned, in which case it shall be lawful for such company to demand and receive, by way of compensation for the increased risi (re) and care thereby occasioned, a reasonable per centage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge ; and such per centage or increased rate of charge shaU be notified in the manner prescribed in the statute 1 1 Geo. 4 & 1 WUl. 4, c. 68, and shall be binding upon such company in the manner therein mentioned: Provided also, that the proof of the value of such animals, articles, goods and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury : Provided also, that no special contract between such company and any other parties respecting the receiving, forwarding or delivering of any animals, articles, goods or things as aforesaid, shaE be binding upon, or affect any such party, unless the same be signed by him or by the passengers' luggage, ante, pp. 302, (m) But if he has made a deolara- ^O^- tion that they are of less value he will (ft) As to oases of inevitable accident, be bound by it : M'Cmce v. The London see Ashmdon v. London and Brighton f North Western Sail. Co., 7 H. & N. Rail. Co., 5 Ex. D. at p. 194. 477. [t) "Servants" include agents (not («) "Although a small percentage strictly servants) employed to do work may be reasonable irrespective of dis- which the railway company are under tauoe, it by no means follows that the a contract with others to perform: same is true of a high percentage." Doolcm V. Midland Rail. Co., 2 App. DieJcson v. Great Northern Rail. Co., 18 Gas. 792. Q. B. D. at p. 187. CONTRACTS WITH CARRIERS. 313 person delivering (o) such animals, articles, goods or tMngs respec- Contraote tively for carriage {p): Provided also, that nothing herein contained ^th cazriers. shall alter or affect the rights, privileges or liabilities of any such company under the said Act of 11 Geo. 4 & 1 "WiU. 4, c. 68, with respect to articles of the descriptions mentioned in the said Act"(?). The following interpretation of this olDsoure enactment was given by Jervis, 0. J. {r) : — " The fair meaning of the section, as it seems to me, is this: — The first branch of it declares that all notices, conditions or declarations made and given by the company, shall be null and void in so far as they go to release the company from liability for loss of or injury to goods, &c., in the receiving, forwarding or delivering thereof, occasioned by the neglect or default of the company or its servants. But then it goes on to provide, in the next branch, that this shall not prevent the company from making such conditions which shall be adjudged by the Court or judge, before whom any question relating thereto shall be tried, to be just and reasonable. And, further, though just and reasonable, such condition or 'special contract ' shall not be binding, unless signed by the person sending or delivering the goods. The result seems to be this : — A general notice is void : but the company may make special contracts with their customers, provided they are just and reasonable, and signed ; and whereas the monopoly created by railway companies compels the public to employ them in the conveyance of their goods, the legislature have thought fi.t to impose the further security that the Court shall see that the condition or special contract is just and reasonable " («). This interpretation of the statute was udopted by the Ex- chequer Chamber in McManus v. The Lancashire and Yorkshire Ry. Co. (t), and subsequently, in Peek v. North Staffordshire By. (o) See Feeh v. North Staffordshire ss. 14, 16, and 34 & 35 Viet. c. 78, Rail. Co., E. B. & E. 958 ; 32 L. J. 8. 12. Q. B. 241 ; 10 H. L. 473. This only {r) The London ^ North Western Sail. applies when the company seek to Co. t. Dimham, 18 C. B. 826 ; and see exempt themsdves : BaxendaU v. Great Simons v. The Great Western Mail. Co., Eastern Mail. Co., L. R. 4 Q. B. 244. 18 0. B. 805. (p) This section applies to passen- («) Fardington v. South Wales Mail. gers' luggage: Cutler v. North London Co., 1 H. & N. 392 ; Wise v. T%e Great Mail. Co., 19 Q. B. D. 64. Western Mail. Co., 1 H. & N. 63. (?) See also 31 & 32 Vict. o. 119, (<) 4 H. & N. 327. 314 MERCANTILE CONTRACTS. Contracts Co. {u), by the House of Lords; Lord Westbury and Lord wi camerg. j^gy^gigy^ig £q ^q latter adopting the above language. Every special contract for carriage, that is, every contract subject to other terms than common law liabilities of the carrier, must be in "writing, must be just and reasonable, and signed by the person sending or delivering the goods. Whether the conditions which a railway company has imposed be just and reasonable, must depend, in many instances, upon the circumstances of the particular case («). The burden of showing that the contract is reasonable lies on the company. A condition which provides that the company shall not be responsible for any damage, however caused («), or in any case {y), is certainly unreasonable' and bad (a). The circum- stance that alternative rates or terms are offered is a material, though not conclusive, element in determining the reasonableness of a contract (a). "It is not open to doubt," said Lord Herschell in Great Western Rail. Co. V. McCarthy (i), " since the case of Peek v. North Stafford- shire Rail. Co., that a contract exempting the company from liability («) 10 H. L. 473. {y) Ashmdon v. L. ^ £. Rail. Co., (») Simons v. The Chreat Western 5 Ex. D. 190 ; Cutler v. North Zondon M. Co., 18 0. B. 805; Seal v. The Sail. Co., 19 Q. B. D. 64. South Devon Sail. Co., 5 H. & N. 875 ; {z) M'Mmus v. The Lancashire mi Ashendm v. L. B. # S. G. Rail. Co., 5 Yorkshire Rail. Co., 4 H. & N. 327 ; Ex. D. 190 ; Manchester, Sheffield and M'Cance v. L. % N. W. Rail. Co., 7 Lincolnshire Rail. Go. v. Rrown, 8 App. H. & N. 477 ; 3 H. & C. 343 ; Rooth r. Cas. 703. In Gorton V. The Bristol and The iV. H. Rail. Co.^ L. E. 2 Ex. :Eiceter Sail. Co., 1 B. & S. 112, a con- 173 ; Manchester, Sheffield and Zincoln- dition that no claim for damage will shire Rail. Co. v. Brovm, 8 App. Cas. be allowed, unless made within three 703 ; If Arc v. London and North West. days after the delivery of the goods; Sail. Co., L. R. 9 0. P. 326; Bich- nor for loss, unless made within three sony. Great NorthernRail. Co., ISQ,.'B. days of the time when they should be D. 176. See, as to exemption from delivered, was thought to be bad (per liability of railways conveying goods Oockbum, C. J., at p. 146) ; and a partly by railway and partly by sea, condition "that the company would 31 & 32 Viot. o. 119, s. 14, and for not be accountable for the loss, de- goods, &o., carried in a vessel not tention or damage of any package, belonging to the railway company, 34 insufSciently or improperly packed," & 35 Vict. i;. 78, s. 12. was held to be unjust and unreason- (a) Manchester, Sheffield and Lin- able. colnshire Rail. Go. v. Broum, 8 App. {x) Or caused by detention or delay, Cas. 703. or overcarriage : Allda;/ v. The G. W. (J) 12 App. Cas. 218, at p. 228. Sail. Co., 6 B. & S. 903. CONTRACTS WITH CAKRIERS. 315 in tlie terms of tlie consignment note in the present case, is primd Contraots facie not just and reasonable, and that, if no other alternative is ^ith earners , offered to the consignor, the company are liable for the negligence of their servants, notwithstanding the stipulations of the contract of carriage. It is equally well settled, since the decision of yoiir Lordships' House, ia the case of Manchester, Sheffield, and Lincolnshire Rail. Co. V. Brown (c), that, if the consjgfnor has an offer iored fide made to him of having his goods carried upon terms just and reasonable, and voluntarily chooses, in consideration of a pecuniary benefit, to exonerate the carrier from any part of his ordinary responsibility, a contract thus limiting the carrier's liability may be just and reasonable, though without the alternative option it would not be. It appears to me, that all the questions in the present case resolve themselves into this one : was the alternative offered to the plaintiff, and which it was open to him to accept in lieu of that contained in the contract, which he in fact entered into, a just and reasonable one ? I may remark, before I proceed further, that, in my opinion, the question whether a contract is just and reasonable within the meaning of the statute, must be determined by the Court or judge alone, and that it is not a question proper to be left to a jury, even though questions of fact be necessarily involved in its deter- mination." By sect. 2 of the Act railway and canal companies are re- quired, " according to their respective powers," to " afford all reasonable facilities for the receiving and forwarding and deliver- ing of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles" {d). Thus conveniently timed trains may be ordered {e) ; and a company may be required to erect other structures than those which actually exist, if such are within their powers (/). The («) 8 App. Caa. 703. Rail. Go. v. Sailway Commissioners, 7 (d) RaUway and Canal TrafSo Act, Q. B. D. 182 ; Corporation of Hastings 1854 (17 & 18 Vict. c. 31), o. 2. As to v. South JEasUrn Sail. Co., 3 N. &M. reasonable facilities, see Baxmdalc v. 179 ; Beeston Brewei-y Co. v. Midland London and South Western Bail. Co., 12 Bail. Co. (connection by a siding with C. B. N. S. 7S8; Garton v. Bristol a railway), 5 B. & M. 53. and Exeter Rail. Co., 6 0. B. N. S. (e) G. X. of Scotland Rail. Co. v. 639 ; Baxendale v. Great Western Rail. Sighland Sail. Co., 6 B. & M. 103 Co., 6 C. B. N. S. 309 ; Nicholson v. (/) See per Selbome, L and Great Western Rail. Co., 5 C. B. N. S. Brett, L. J., in S. E. R. Co. v. Railway 366 ; 7 C. B. N. S. 75o ; Great Western Commissioners, 6 Q. B. D. 586 ; Local 316 MERCANTILE CONTRACTS. Contracts decision of the Court of Appeal in Dickson v. Great Northern L Rail. Co. (g), gives to this provision a very important efEect. It imposes on railway companies the duty of receiving, carrying, and forwarding all traffic, that is, all passengers, goods, and animals. "The important point," says Lindley, L. J. (A), "is that railway companies are bound to carry goods and animals which they have facilities for carrying. It woidd, however, be a mistake to suppose that railway companies are bound to carry, as common carriers, everything which they can be required to carry under the provisions of the EaUway and Canal Traffic Act, 1854. Railway companies are bound by that Act to provide reasonable facilities for carrying passengers, but they are not common carriers of passengers. So railway companies are bound to provide reasonable facilities for carrying animals or particular classes of goods ; but it by no means I follows that they are liable as common carriers for what they are 'bound by statute to carry. This distinction is important and requires to be borne in mind. Whether railway companies are common carriers of particular classes of goods depends upon what they habitually do, or profess to do, with respect to such goods. The EaUway and Canal Traffic Act, 1854, does not make railway companies liable as common carriers in respect of goods which they do not profess to carry as such. This was, in fact, decided in Oxlade v. North Eastern Rail. Co. " (j). At conamon law a carrier was not bound to charge his cus- tomers equally (J), provided the charges were reasonable. But by the Eailway and Canal Traffic Act, 1854, s. 2, it was enacted that — "No such company shall make or give any undue or unreason- able preference or advantage to or in favour of any particular person or company, or any particular description of traffic, in any respect whatsoever, nor shall any such company subject any par- ticular person or company or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever " (A). Board for Newington t. N. E. R. Go., {k) Extended to steam vessels used 3N. &M. 306. by railway companies :' 31 & 32 Vict. (y) 18 Q. B. D. 176. c. 119. As to the construction of this (A) Ibid, at p. 184. provision, see Benahy Main Colliery Co. (j) 1 C. B. N. S. 454, at p. 498. v. Manchester, §c. Sailway, 11 App. (i) G. W. Rail. Co. v. Sutton, L. E. 4 Cas. 97 ; Lancashire g- Yorkshire Rail- H. L. 226, 237. way v. Greenwood, 21 Q. B. D. 215. CONTRACTS WITH CARRIERS. 317 In general, difEerences in charges not accounted for by differ- Contracts ences in cost of service will be regarded as undue preference (1). - The section extends to terminal charges {m). Thus a lowering of rates, not in consequence of difference of cost of service, but in order to exclude competition, will be deemed undue preference («) . But the section does not apply to rates charged by a railway company for the use of docks owned by them, but whoUy unconnected with their business as a railway company (o) . It has been held that it is no defence to an action for charges that they are unreasonable, and that they give an undue preference {oo). By the Eailway and Canal Traffic Act, 1888 (51 & 52 Vict. c. 25), it is enacted — Sect. 27 — " (1.) "Whenever it is shown that any railway company charge one trader or class of traders, or the traders in any district, lower tolls, rates, or charges for the same or similar merchandise, or lower tolls, rates, or charges for the same or similar services, than they charge to other traders, or classes of traders, or to the traders in another district, or make any difference in treatment in respect of any such trader or traders, the burden of proving that such lower charge or difference in treatment does not amount to an undue preference shall lie on the railway company. " (2.) In deciding whether a lower charge or difference in treat- ment does or does not amount to an undue preference, the Court having jurisdiction in the matter, or the Commissioners, as the case may be, may, so far as they thint reasonable, in addition to any other considerations affecting the case, take into considera- tion whether such lower charge or difference in treatment is neces- sary for the purpose of securing in the interests of the pubhc the traffic in respect of which it is made(j9), and whether the inequality cannot be removed without unduly reducing the rates charged to the complainant : Provided that no railway company shall make. As to what is undue preference, Z. ^ 4 N. & M. 1. N. W. Rail. Co. v. M/erahed, 3 App. (m) Z. | iV. TT. Sail. Co. v. Evershed, Cas. 1029 ; In re Ransome f E. Coimtiea 3 App. Cas. 1029. Compare E. % W. Rail. Co., 1 C. B. N. S. 437 ; 4 C. B. I. Dock Co. y. Savill, 39 Oh. D. 332. N. S. 136 ; Ayr Trustees v. Glasgow («) Garton v. £. f E. Rail. Co., 1 B. f S. W. Rail., 4 B. & M. 90; Skin- & S. 112. ningrove Iron dp. v. N. E. Railway, (o) East ^ West India Dock Co. v. 6 B. & M. 244 ; Zondonderry Commis- Savill, 39 Ch. D. 624. sioners v. G. N. Railway, ^c, 5 ib. (oo) Zaneashire and Yorkshire Rail. 282; and oases cited supra, p. 315, Co. v. Greenwood, 21 Q. B. D. 215. ^o*^W- (p) See Garton v. 3. ^ E. Rail. (I) Richardson v. Midland Rail. Co., Co., supra. 318 MERCANTILE COM'llACTS. Contracts nor shall the Court, or the Oommissioners, sanction any difference ■with carriers. Jq ^j^g ^gjjg^ rates, or charges made for, or any diflferenee in the treatment of, home and foreign merchandise, in respect of the same or similar services. " (3.) The Court or the Commissioners shall have power to direct that no higher charge shall be made to any person for services in respect of merchandise carried over a less distance than is made to any other persons for similar services in respect of the like descrip- tion and quantity of merchandise carried over a greater distance on the same line of railway" (p). Sect, 29. — " (1.) Notwithstanding any provision in any general or special Act, it shall he lawful for any railway company, for the purpose of fixing the rates to be charged for the carriage of mer- chandise to and from any place on their railway, to group together any number of places in the same district, situated at various dis- tances from any point of destination or departure of merchandise, and to charge a uniform rate or uniform rates of carriage for mer- chandise to and from all places comprised in the group from and to any point of destination or departure. " (2.) Provided that the distances shall not be unreasonable, and that the group rates charged and the places grouped together shall not be such as to create an undue preference" (y). The Eailway Commission, established by the Eegulation of Railways Act, 1873, has been re-organi^sed, and its jurisdiction much enlarged, by the Eailway and Canal Tra£Bc Act, 1888 (>•). To a Commission, styled the Eailway and Canal Commission, and consisting of two appointed Oommissioners and three ex officio Commissioners, are transferred the jurisdiction and powers vested in the Eailway Commissioners established by the Act of 1873. Sect. 9 enacts— " Where any enactment in a special Act — " (a) contains provisions relating to traffic facilities, imdue preference, or other matters mentioned in section two of the Eailway and Canal Traffic Act, 1854 ; or " (b) requires a company to which this part of this Act applies to provide any station, road, or other similar work for public accommodation ; or " (c) otherwise imposes on a company to which this part of this {p) See Soziery. Caledonian Rail. Co., JieU and Lincoln Rail. Co., 3 N. & M. 1 N. & M. 27. 426. {q) See as to g:roup rates, Dmaiy (r) 61 & 52 Vict. o. 25. See Ap- Mnin Colliery Co. v. Manchester, Shef- pendix. CONTRACTS WITH CARIIIERS. 319 Act applies, any obligation in favour of the public or any Contracts individual;" ^^'^''^"^"^- the Commissioners have the like jurisdiction to hear and deter- mine as in the case of a contravention of sect. 2 of the Railway and Canal Traffic Act. Under that Act and the Eegulation of Railways Act, 1873, no action lay for breach of the provisions as to undue prefer- ence («). But sect. 10 of the Act of 1888 enacts that — " Where any question or dispute arises, involving the legality of any toU, rate, or charge, or portion of a toll, rate, or charge, charged or sought to be charged for merchandise traffic by a com- pany to which this part of this Act applies, the Commissioners shall have jurisdiction to hear and determine the same, and to enforce payment of such toU, rate, or charge, or so much thereof as the Commissioners decide to be legal." They may also, in addition or substitution for other relief, award damages (t). Generally speaking, when goods are forwarded in pursuance of an order which binds the person giving it to receive the goods, as the property in them passes to that person by the delivery to the carrier, he is the proper plaintiff if they be lost (w) ; for the vendor was his agent to employ the carrier («•). But it is otherwise when the property in the goods has not yet passed to the vendee, as where there is no writing or acceptance sufficient to satisfy the Statute of Frauds, and the carrier was not of his selection (») ; or where the goods are sent merely for approval (y), or the consignee is the agent of the consignor (z), or the carrier has contracted to be liable to the consignor in (») L. $ N. W. Sail. Co. v. Everahed, any time require the carrier to deliver 3 App. Caa. 1029. them to him. Ibid.; London and North («) 61 & 62 Viet. c. 25, s. 12. Western Sail. Co. v. Bartlett, 1 B.. & («) Dawes v. Peek, 8 T. E. 330 ; N. 400. Dutton V. Solomonson, 3 B. & P. 582 ; (») Coats v. Chaplin, 3 Q. B. 483 ; Davis V. James, 5 Bur. 2680 ; Tromon Comnis v. Bristol and Exeter Sail. Co., V. Dent, 8 Moore, P. C. 419; Martin 3 H. & N. 510; Norman v. Phillips, T. Great Indian P. S. Co., L. R. 3 14 M. & W. 277. Ex. 9 ; Crouch v. The Great Northern (y) Swain v. Shfphei-d, 1 M. & Rob. Sail. Co., 11 Exch. 742, 767. 223. (») Cork Distilleries Co. v. Great S. {ij Sargent v. Morris, 3 B. & Aid. $ W. Sail. Co., L. R. 7 H. L. 269 ; 277. consequently the consignee may at 320 MEKCANTILE CONTRACTS. Contraota oonsideratioii of the latter's beooming responsible for the price L of the carriage {a). The question with whom the contract or carriage was made is to be determined by the whole terms. In Great Western Rail. Co. v. Bagge (b), it appeared that the con- signor had contracted with the consignee to pay the carriage, and it was held that the consignor was liable to pay the freight. It frequently happens that goods are sent to a booking-office keeper for the purpose of being delivered by him to a carrier. In such case, the booking-office keeper being the agent of the owner for the purpose only of delivering to the carrier, it must, in order to fix him with negligence, be shown that he omitted so to deliver. It will not be even prima facie evidence against him, as it would against the carrier, that the goods never reached their destination (c). A question frequently arises in practice, whether carriers who have received goods to be taken to a point beyond that to which their own means of conveyance extend, are liable as carriers for loss beyond that point, or are to be considered as agents for the purpose of carrying to the end of their track, and employing fresh agents at its termination to complete the journey. In such cases they are generally regarded as the carriers throughout (d). A similar qucere arises when the customer does not call for the goods (e). With regard to the remuneration to which a carrier is entitled, it is clear that he must carry for a reasonable amount ; and if he insist on receiving more before conveying the goods, or before parting with them, an action for money had and received will {a) Moore v. Wilson, 1 T. R. 659 ; Srisiol md Exeter Sail. Co., L. R. 3 Dmis T. James, 5 Burr. 2680. Ex. 189. If there be an interchange (i) 15 Q. B. D. 625. In Btmlop v. of traffic, and, as ia Gill v. The M. S. Zambert (6 C. & P. 600) the autho- # I. Sail. Co., L. R. 8 Q. B. 186, an rities are reviewed. arrangement by which the traffic is (c) Gilbart v. Dale, 6 Ad. & E. 543. worked as if the concerns of both were {d) Bristol and Exeter Rail. Co. v. amalgamated, both or either may be Collins, 7 H. L. Ca. 194; 1 H. & N". sued most probably. But the Railway 617 ; Muschamp v. Lamcaater and Fres- and Canal Traffic Act does not affect a ton Mail. Co., 8 M. & W. 421; Sco- railway company beyond its own line : thorn V. S. Stafford Rail. Co., 8 Exch. Zunz v. 8. E. Rail. Co., L. R. 4 Q. B. 341 ; Webher v. G. W. Rail. Co., 3 H. 539. & C. 771 ; Crouch v. G. W. Sail. Co., [e) Mitchell v. Z. ^ Y. Sail. Co., L. 2 H. & N. 491, 603 ; Shepherd y. R. 10 Q. B. 266. CONTRACTS WITH CARRIERS. 321 lie against him for the excess (/). What is such reasonable Contraots amount appears to be a question for the jury {g). In like '- manner, if a railway company has, in disregard of s. 90 of 8 & 9 Vict. 0. 20, and s. 2 of 17 & 18 Vict. c. 31, made unequal charges under like circumstances, and given undue preference, those who have made such higher payments under protest may recover them (A). Where the goods are of extraordinary danger, or carried under peculiar circumstances, it is in the carrier's option to insist upon a special contract («). If such goods are tendered to a carrier, and he gives notice to the owner that he will not be responsible for loss, imless a more than ordinary rate of insur- ance be paid, which the owner declines to pay, but leaves the goods to be carried, it appears that the carrier receives them on the footing of such notice. If the carrier be not a railway or canal company, his liability becomes limited, and he is only bound to use the ordinary care of a bailee for reward. Carriers have a particular Hen for their charges (A). They may also by agreement, or by a custom clearly proved, have a general lien for the balance of their charges (/). (/) Farker v. 0. W. Sail. Co., 7 M. & G. 263. See IHekford v. Grand Junction Sail. Co., 8 M. & W. 372 ; 10 M. &W. 389; Ashmoley. Wainwright, 2 Q. B. 837 ; Parker v. Bristol and Exeter Sail. Co., 6 Exoh. 702 ; Crouch V. G. N. Sail. Co., 11 Exoh. 742. (g) Aahmole v. Wainwright, 2 Q. B. 837. (A) L. f ST. W. Sail. Co. v. Everahed, 3 App. Cas. 1029. (0 See Wyld v. JPiekford, 8 M. & W. 443 ; and Crouch v. L. ^ N. W. Sail. Co., 14 C. B. 256. And see per Parke, B., in Carr v. L. f T. Saihoay, 7Exch. atp. 709; Walker y. The York and North Midland Sail. Co., 2 E. & B. 760 ; also see Butt v. O. W. Saihcay, 11 C. B. 140 ; Wiae v. 6. W. Sailway, 1 H. & N. 63 ; Sughee v. G. W. Sail- wag, 14 C. B. 637. The oharge of a, railway company for insurance must not be unreasonable : Peek v. N. Staf- ford Sailway, E. B. & E. 958 ; Sarri- son T. i. J B. Sailway, 2 B. & S. 122, 162. (k) Skinner v. TTpshaw, Ld. Kaym. 762. (i) Smhforth v. Sadfield, 7 East, 224 ; WHght v. Snell, 5 B. & Ad. 850 ; Butler T. Woolcott, 2 Bos. & P. N. E. 64. S. — vol.. I. 322 MERCANTILE CONTRACTS, CHAPTER III. Contracts of affreight- ment. CONTRACTS OF AFFREIGHTMENT. Sect. 1. Contract of Affreightment hy Charterparty'. 2. Contract for Conveyance in a General Ship. 3. Duties of Masters and Owners. 4. Duties of Merchant. 5. General Average. 6. Salvage. Contracts of affreightment, being contracts for the carriage of goods in vessels, fall imder the general denomination of con- tracts with carriers (a). On account, however, of the important place they occupy in the mercantile law, it has been thought proper to devote a separate chapter to their consideration. Con- tracts of this description are either — 1. Contracts of affreightment by charterparty ; or 2. Contracts for the conveyance of goods in a general ship. Section 1. — Affreightment hy Chartetparty, mSfb'^*" "^^^ contract by charterparty is defined to be that " by which charterparty. an entire ship, or some principal part thereof, is let to a mer- chant for the conveyance of goods, on a determined voyage to one or more places "(i). It may be, and more often is, a con- tract by which the shipowner agrees to carry goods on a specified . vessel for a particular voyage or series of voyages (c). The in- (a) The carriage of passengers in merchant vessels is now regulated hy Stat. 18 & 19 Vict. o. 119; 26 & 27 Vict. c. 51, and 3.'5 & 36 Vict. c. 73. (*) Abbott, Part 3, e. 1. (c) See per Coclcburn, C. J., in Sande- man v. Scurr, L. R. 2 Q. B. at p. 96. CONTRACTS OF AFFREIGHTMENT. 323 strament by whioh the contract is recorded, and which, though Affreight- sometimes a deed, and almost invariably in writing (d), is not charterpaity. necessarily so, is generally executed by the owner of the ship, when made at the place of his residence, and sometimes by the managing owner or the master, and often by means of a broker (e). If made abroad, it can of course only be executed {d) lidgett v. Williams, 4 Hare, 466 ; S(yrBley y. Rush, cited 7 T. R. 209. («} As to ship-husband's right to execute a oharterparty, see Ttmnaa v. Lewis, i Ex. D. 18. The following is a form of charter- party :— Chabtebpabtt. London, 5th Nov. 1886. A.B. &Co., E.C. OUTWABS. This charterparty is mutnally en- tered into between 0. D. & Co. as agents for owners, and Messrs. A. B. & Co. as charterers, of the good ship or vessel Ajax, captain, Anderson, now in Hull. The vessel is 1,395 tons net, British register, guaranteed to be made tight, staunch, strong, coppered in 1886, and in every way fitted for the voyage. Class of vessel is S/Srds L 11 in French Veritas, and is to be so con- tinued throughout the voyage. The voyage to be Liverpool to Yoko- hama and Hiogo, or so near thereto as the vessel can safely get, where cargo is to be delivered as per bills of lading in the customary manner, so ending the voyage. The vessel to proceed with all safe speed direct to the port of discharge. Vessel's hold and cargo capacity are given to charterers for cargo, except only what is customary and necessary for the ship's stores for the above voyage ; and owners hereby guarantee the vessel to carry 1,850 tons (of 20 cwt.) weight of cargo (without being overladen), or if this be refused by owners or captain, then charterers have power to deduct the pro rati equivalent for such short carrying from owners' account. The weight of cargo to be computed from invoices, and from carriers' notes and from bills of lading. Either these original docu- ments, or shippers' certificates of such weights, to be accepted as absolute proof by the owners. The cargo to be taken on board as customary, and to be of lawful mer- chandise, including gunpowder (in the river), charterers erecting the neces- sary magazine, specie, kerosine or similar oils, acids on deck at shipper's risk ; also machinery which can be shipped without cutting hatches. The vessel to proceed to any crane as re- quired in loading dock, but any extra expense in loading or discharging packages over three tons weight to be borne by charterers. Charter money to be paid owners is 2,068?., say two thousand and fifty- eight pounds sterling, in full of all port charges, primages, &o. 1,000(. to be payable abroad, at current rate of ex- change, by bills of lading, or charterers' order (at their option), to captain on final and truedeUveryof cargo; balance to be paid here in cash on sailing, less 6 per cent, for interest and insurance. Captain to have an absolute Hen and charge for freight on cargo, but to have no recourse on charterers for any freight due abroad, per bill of lading, if not paid ; charterers' responsibility to cease as soon as cargo is signed for, except for advance due here, and the " order (if any) for balance due abroad. Loading dock to be ordered by charterers, and to load in the river if required. Vessel to be made ready, and proceed to her loading berth as soon as possible on signing of this -^2 324 MERCANTILE CONTRACTS. Affreight- ty the master, unless an agent of tlie owner be there (d) ; and oharterparty. in that case, if loj deedj no action can be maintained on the charter. Provided there is not suffi- cient water to allow of her leaving the dock fully laden, the loading to be coinpleted in the river. Loading days allowed charterers are thirty, with two clear days extra for clearing; for any used for loading beyond these lit. per day demurrage to be paid to owners by charterers. Sundays, customs or bank holidays, or detention by frost, are always ex- cluded throughout this oharterparty. Any day or days during which ballast is discharged not to count against charterers. Captain to notify, in writing, when vessel is in a proper loading berth as above, with the hold clear and cleaned, vessel painted, rigged, and ready for cargo. When such are complied with, loading da.ys to commence twenty-four hours after such notice has been received by charterers. Lay days not to com- mence to count before 20th November, unless vessel and cargo both ready sooner ; and charterers to have the ' option of cancelling this oharterparty if vessel not arrived and ready to com- mence loading by 5th December. Mate's receipts to be signed for the cargo as taken on board. On produc- tion of these, the bills of lading are to be signed by the captain at charterers' request, at any rate of freight, such bills of lading to be without prejudice to this charter. Captain shall also sign for weight of coal, pig iron, or other cargo, when weighed alongside or on board, or delivered on official weighing machine notes. Captain to attend at least once daily at charterers' office to sign bnis of lading. Stevedore to be appointed by char- terers. His men are to take on board and stow the cargo under the direction of the master. The master and owners alone to be responsible for stowage of cargo and trim of vessel. Charterers to charge owners for stowage of cargo at the rate of Is. id. per ton in account. Owners to pay the usual advertising, printing, and measurer's charges, not exceedingeightguineas. Underwriters' surveyors to settle all disputes as to stowage or draught, and their recom- mendation or decision to be carried out by captain and owners. Dunnage or mats, if required, to be provided by owners. Consignment of vessel to be placed in the hands of the agents appointed by the charterers, whom the owners also accept as agents of the vessel at her ports of discharge inwards, the owners paying two and a -half per cent, inwards on amount of this char- ter, and charterers' agents to have the preference outwards. Should the ves- sel put into any port or ports on the vray, while under this charter, she is to be consigned to charterers' agents there. A brokerage of five per cent, on this charter is due by owners to B., J. & Co., on signing of same. If any disputes arise, the same to be settled by two London commercial men, each party naming one as an arbitrator, and, if necessary, the arbi- trators to appoint a third. The deci- sion of the majority shall be final, and any party attempting to revoke the submission to arbitration without the leave of a court shall be liable to pay to the other or others, as liquidated damages, the estimated amount of chartered freight. It is further agreed that these presents may be made a rule of her Majesty's High Court of Justice. It is also further agreed that the said vessel shall, by the owners thereof, {d) See Stumors v. Breen, 12 App. Cas. p. 704. CONTKACTS OF AFFREIGHTMENT. 325 covenant against the owner, unless the party executing it had Afeeight- an authority by deed to do so (e). But an action may be sus- charterparty. tained for the breach of such of the general duties of a ship- owner as are not inconsistent with its terms (/) ; and a voy- age may be made up to a certain period under a charterparty by deed, and afterwards under a parol agreement, or vice versa, (g). Whether a charterparty is signed by a person as an agent, or as a principal, is to be determined by reference to the rules already stated in regard to agency (h). The terms of a charterparty cannot, of course, be varied by parol (»), though it may, like other mercantile instruments, be explained, though not contra- dicted, by evidence as to the usage of trade ; e.g., the well-known Txsages of a port {k). during the whole of the said voyage, be kept tight, staunch and strong, and well found and provided with men and mariners, sufficient and able to navi- gate the said vessel, and with all man- ner of rigging, boats, tackle, provi- sions and appurtenances whatsoever (restraints of princes and rulers, the dangers and accidents of the seas, rivers, and navigation, fire, pirates, and enemies, throughout this charter- party always excepted). In the event of war being declared between the nation to which this vessel belongs and any other, charterers have the option of cancelling the charter be- fore the vessel proceeds to sea, upon indemnifying the owners from all con- sequences of re-delivering the cargo ; and in case the charter be so cancelled, the charterers shall pay to the owners the sum of ISl. for each and every day which shall elapse between the time of the vessel being in a loading berth and the cancelling of such charter, or the final discharge of the cargo (if any) which may have been received on board, whichever last shall happen. For the due performance of the agree- ments and matters herein contained, each of the said parties bindeth himself and themselves, each of the other, in the sum of estimated amount of freight. Vessel to call at a wharf in the Tees, on her way to dock, to load some iron, provided same can be done with safely to vessel, and no extra expense be incurred ; if the latter, then the same to be paid by charterers. By authority of X. Y., New York ; C. D., as Agent. A. B. Signed by 0. D., in the presence of E. F. Signed by A. B., in the presence of G. H. («) Harrison v. Jackson, 7 T. R. 207 ; and Borsley v. Rush, there cited. (/) Leslie v. Wihon, 3 B. & B. 171. And see per Tindal, C. J., in Bushell V. Seavan, 1 Bing. N. C. at p. 121. (j?) White V. Farkin, 12 East, 578. (A) See pp. 172 et seq. ; and Parker V. Winh, 27 L. J. Q. B. 49 ; Eough v. Monzanos, 4 Ex. D. 104. (t) Gibbon v. Young, 2 Moore, 224 ; Thompson v. Brown, 7 Taunt. 656 ; Sumhle v. Hunter, 12 Q. B. 310. (*) Zeidemanv. Schultz, 14 C. B. 38; Sussian Steam Nav. Co. v. Silva, 13 C. B. N. S. 610 ; Hudson v. Ede, L. R. 3 Q. B. 412 ; Norden Steamship Co. v. Bempsey, 1 C. P. D. 664; Hutchinson T. Tatham, L. R. 8 0, P. 482 (evi- denceof custom that agents, who signed as such, were liable if principal not 326 MERCANTILE CONTBAOTS. AfEreigHt- mentby charterparty. In construing charterparties and bills of lading the governing principles are, that the intention of the parties, as apparent in the document, shall prevail (/) ; that, as a rule, the law of the flag of the ship shall regulate the construction of the docu- ments (m) ; that they are to be read with a regard to business habits and usages {n) ; and that words are to be understood in their business meaning (o). Thus, to illustrate the last part of this proposition, " port" used in a charterparty will not be necessarily understood to mean the limits of a port as defined for customs or pilotage purposes, but as understood among men of business. If a vessel were required to deliver at a certain port, and it were usual to deliver part of the cargo at one place in a port and part at another, such would be the proper places of delivery (p). Or, to take an instance in which the strict grammatical construction of these documents was not followed, in Nottebohn v. Richter {q), the charterparty required the vessel to proceed to a specified port, take on board a cargo of mahogany from the bank of the river at the ship's risk, proceed, after loading, to a safe port in Europe, the act of God and other usual perils excepted, and deliver the cargo in a specified manner. According to grammatical construction the exceptions would apply only after loading ; they were, however, held ap- plicable to all the risks. The provisions of the charterparty consist of either conditions precedent or substantive parts of the agreement, the breach of which by one party entitles the other to rescind the contract, or representations or collateral promises, the breach of which gives rise to a cause of action and a right to damages. Speaking generally, any covenant, the non-fulfilment of which will frus- trate the object of the voyage, wiU be regarded as a condition disclosed within » certain time; but 137; The Wilhelm Schmidt, 25 L. T. see Filce v. OngUy, 18 Q. B. D. 708) ; The Skandinav, 61 L. J. Ad. 93. (Q Chartered Sank of India v. Nether- lands 8. Nav. Co., L. E. 10 Q. B. D. 521 ; Dimeeh v. Corlett, 12 Moo. P. 0. Cas. 199 ; In re Missouri Steamship Co., 37 W. E. 696. (m) Lloyd V. Guibert, L. E. 1 Q. B. 115; TheOttetanoandMariaflV.Ji.l, 34. (») Stewart v. Merchants' Marine In- surance Co., 16 Q. B. D, 619 ; Meken V. Wait, 16 Q. B. D. 67. (o) 8.8. Garston Co. v. Hickie, 16 Q. B. D. 680. (p) Nielsen v. Wait, supra. (?) 18 Q. B. D. 63. CONTRACTS OF AFFBBIQHTMENT. 327 precedent. The breach of other covenants will give rise only to Affreight, actions for damages (r). In Behn v. Bumess (s), the leading oharterparty. case on the suhjeot, it was held that the words " now in " were a warranty, or a condition precedent to the contract, that the ship was then at the port named. So, in Fraser v. Tele- graph Comtrudion Co. {t), a statement "shipped on hoard the steamship," was held to he a condition precedent or warranty, which wajs broken by shipment on a vessel whose principal motive power was not steam. So, a statement that the vessel shall sail before a certain day (w), or as to the vessel's class, but not as to her being rightly classed (x). The instrument expresses the freight to be paid, and gene- rally the burthen of the ship; by which latter specification the parties are not however concluded, provided the excess is not unreasonable ; for a merchant has been held liable on his covenant to furnish a full cargo, though he had furnished 260 tons, the speoifled burthen of the ship, which in reality con- tained 400 {y). It also comprises covenants from the owner that the ship shall be tight, staunch, furnished with all necessaries ; that she shall be ready and fit by a certain day to receive (is), and shall wait a certain time to ship her cargo ; shall sail at a particular time (a) for her destined port (J), " or as near (r) Tarraiochia v. Miekie, 1 H. & N. (U. S. S. C), 353 ; and infra, 366 (A). 183 ; McAndrew v. Chappie, L. R. 1 See Maekill v. Wright, 14 App. Cas. 0. P. 643. 106 (as to a guarantee by shipowner (s) 3 B. & S. 761. So, in Davison v. to carry eo much dead -weight). Von Lingen, 6 Davis, TJ. S. Supreme (s) Stanton v. Sichardson, la. E. 7 Court, 40, the words " now sailed or 0. P. 421 ; 9 C. P. 390, affirmed in about to sail," in a oharterparty, were House of Lords, 45 L. J. C. P. 78 ; held a condition precedent, or, as it is TuUy v. SowUng, 2 Q. B. D. 182 sometimes called, a warranly. (charterer in the case of a time charter if) L. K. 7 Q. B. 566. not bound to take a vessel not ready (m) GlahoJm v. Says, 2 M. & 0-. 257 ; at or about the time specified). Seeger v. Duthie, 8 C. B. N. S. 45. (a) Eudson v. Bilton, 6 E. & B. 665 ; (a) South V. Macmillan, 2 H. & C. Price v. Livingstone, 9 Q. B. D. 679 750; French v. Newgaas, 3 0. P. D. ("final sailing"). 163. (4) If no particular time be men- (y) Hunter v. Fry, 2 B. & Aid. 421 ; tioned, the law implies that she shall Barker y. Windle, 6 £. & B. 675 ; Fust sail within a reasonable time : M'An- V. JDowie, 5 B. & S. 20, 33 ; Morris drew v. Adams, 1 Bing. N. C. 29. See V. Levison (3 per cent, difference), 1 also Clipsham v. Vertue, 5 Q. B. C. P. D. 156; JFatts v. Camors, 8 Davis 265. 328 MERCANTILE CONTRACTS. ■^^fb^*' thereto as she may get " (d), deliver the goods safely there, charterparty. and he properly foTUid in men and stores during the voyage, to the hest of the owner's endeavours. It may, of course, comprise any other engagements which the charterer thinks proper to exact and the owner to concede ; e.g., as in Nottehohn V. Richter (e), that the cargo shall he taken on hoard hy the ship's hoats and crew " at ship's risk " ; that the master is to sign bills of lading without prejudice to the charterparty. A clause is usually to be found exempting the owner from liability in case of his being prevented from performing his contract hy restraint of princes. These words are not equivalent to the , words " Queen's enemies," found in bills of lading, and implied by law if not there. " Eestraints of princes " do not include the judgments or acts of a court of law (/). They apply to an actual [g), not a mere expected restraint, and enure to the benefit of the owner, not of the merchant ; on account of which the clause is sometimes worded "restraints, 4'c., mutually excepted" Qi). It likewise generally extends the exemption to " dangers and accidents of the seas, rivers, and navigation." In order to satisfy these words, there must be an enduring, and not a mere temporary impediment to the prosecution of the voyage (»). The expression " perils of the sea " or " dangers and accidents of the sea," would include foundering by collision vrith another vessel. The meaning of the expression when it occurs in a policy of marine insurance was explained by Lord Herschell in The Xantho (Ji) : — " I think it clear that the term ' perils of the sea' does not cover every accident or casualty wjiich may happen to the subject-matter of the insurance on the sea. It must be a peril of the sea. Again, it is well settled that it is not every loss or damage of which the sea is the immediate cause that is covered hy these words. [d) Gapper-v. Wallace Bros., 5 Q. B. D. 163 ; Metcalfe v. Britatmia Iron Worlcs Co., 1 Q. B. D. 613. (e) Ante, p. 326. (/) Fmlay v. Liverpool^ G. W.S. Co., 23 L. T. 261. {jg) Or where there is a reasonable apprehension of capture : The San Soman, L. R. 3 A. & E. 383; L. R. 5 P. C. 301 ; The JEmpress, L. E. 3 A. 6 E. 697. (h) See an instance in Crow v. Falk, 8 Q. B. 467. (t) Schiliwi V. Berry, 4 E. & B. 873 ; The General Steam Kavifation Co. T. Slipper, 11 C. B. N. S. 493. {k) 12 App. Gas. 603, at p. 509. CONTRACTS OF AFKREIGHTMENT. 329 They do not protect, for example, against that natural and Afireight- inevitaUe action of the winds and waves which results in what may ^^^rty. be described as wear and tear. There must be some casualty — some- thing which could not be foreseen as one of the necessary incidents of the adventure. The purpose of the policy is to secure an indemnity against accidents which may happen, not against events which must happen. It was contended that those losses only were losses by perils of the sea which were occasioned by extraordinary violence of the winds or waves. I think that this is too narrow a construc- tion of the words, and it is certainly not supported by the autho- rities or by common understanding. It is beyond question that if a vessel strikes upon a sunken rock in fair weather and sinks, this is a loss by perils of the sea ; and a loss by foundering, owing to a vessel coming into collision with another vessel, even when the collision results from the negligence of that other vessel, falls within the same category. Indeed, I am aware of only one case {I) which throws a doubt upon the proposition that every loss by incursion of the sea, due to a vessel coming accidentally (using that word in its popular sense) into contact with a foreign body, which penetrates it and causes a leak, is a loss by perils of the sea." Damage to cargo, caused by rats gnawing a hole in a pipe connecting the bath room with the sea, and the influx of water, was held to come within the exception " dangers and accidents of the seas." The loss " arose directly from the action of the sea. It was not due to tear and wear, nor to the operation of any cause ordinarily incidental to the voyage, and therefore to be anticipated" (w). The words do not protect a shipowner from liability for the negligence of the ship's master and crew (o). To avail himself of the exemption he must, in the absence of express provision, show that he has performed his duty to carry with reasonable care. Hence, a collision not caused by the fault of the carrying ship comes within the exception ; it is otherwise if due to its fault (p). There seems to be no distinc- tion in theory between the meaning of the words " dangers and {I) I. D., Cullen V. Sutler, 5 M. & S. Uery Co., L. E. 3 C. P. 476. As to the 461. onus of proof, see Tat/lor v. Liverpool («) Samilton, Fraser ^ Co. v. Pan- f G. W. Steam Co., L. E. 9 Q. B. 646; dorfi Co., 12 App. Cas. 618. Cisech v. General Steam Navigation Co., {o) The Xantho, 12 App. Cas. at p. L. R. 3 C. P. 14 ; but qu(Bre as to 610 ; Lloyd v. General Iron Screw Col- the latter. liery Co., 3 H. & C. 284 ; S3 L. J. Ex. {p) The Xantho, supra. 269 ; Grill v. General Iron Screw Col- 330 MEKCANTILE CONTRACTS. Affreight- accidents of the sea " in a contract of affreightment and in a ment °y , , , ... chaiterparty. policy of insurance (p) . But in fact, owing to the difference in the purpose of the two contracts, the words will not protect the shipowner in circumstances in which the insurer would be liable. The exemption, unless limited, would apply to such perils at any time after the chaxterparty was entered into (q). Usually the words "during the voyage" are added. Whether this phrase would include perils at the place of landing is a question as to which there have been conflicting decisions. But the authorities, on the whole, seem in favour of the opinion that it would (r). If no time be fixed for loading or unloading, it must be performed within a reasonable time, which appears to mean "reasonable" having regard to the whole circumstances («). Frequently the words " with all dispatch according to the custom of the port," are added. This is no more than is implied; the charter-party will be construed with reference to the custom of the port of discharge. In construing what is reasonable dispatch the number of ships and appliances is to be taken into account (ss). But the charterer usually covenants to load and unload within a specified time, called lay days {t) ; or if he detain the ship for a longer time, which he sometimes receives liberty to do, to pay a daily sum, which, as well as the delay itself, is called demur- rage (m). The charterparty sometimes ends with a clause pur- {p) Hamilton, Fraser S; Co. v. Fan- dorf # Co., 12 App. Cas. S18 ; The Xantho, 12 App. Cas. 603 ; and infra, Chapter IV., sect. 4. (j) Barker v. M'Andrew, 18 C. B. N. S. 759. (r) Bi-ueev. Mcolopulo {1&55), 11 Ex. 129; Barker v. M'Andrew (1865), 18 C. B. N. S. 759 ; Hudson t. Sill, 30 Ij. T. 555 (1874). On the other hand, Crow V. Falk (1840), 8 Q. B. 467 ; VaUnte v. Giibs (1859),. 6 C. B. N. S. 270. (») Wright v. New Zealand Shipping Co., 4 Ex. D. 166; PostUtliwaiteY. Free- land, 5 App. Cas. p. 621 ; Nordm Steamship Co. v. Dempsej/, 1 C. P. D. 654. [ss) FostUthwhaite v. Freeland, 5 App. Cas. 599. (<) Sometimes the covenant is to load or unload "in turn," "or usual dispatch of the port," " or according to the custom of the port." As to these, and as to the interpretation of the expressions "days," "running days," "worMng days," see Nielsen T. Wait, 16 Q. B. D. 67 (C. A.); Wyllie-w. Harrison, 13 Sc. Sess. Cas., 4th series, 92. (m) As to the meaning of this word, see Gray v. Garr, L. B. 6 Q. B. 522 ; Zockhart v. Falk, L. R. 10 Ex. 132 ; Harris v. Jacots, 15 Q. B. D. 247. The word is often used to denote damage for detention due, in addition to demurrage proper: Id. 250. CONXRACrS OF AFFKEIGHTMENT. 331 porting to bind the ship's freight and cargo in a pecuniary Affreight- penalty to the performance of the contract. But this seems to oharterparty. be inoperative {sn) ; the party siiing may, according to the nature of the breach, recover more or less than that sum (j/). The stipulations must, of course, be strictly performed on both sides. With respect to the time allowed for loading and unloading, it is held that the charterer must pay demurrage for any delay beyond the arranged period, even though not attri- butable to his fault, but to some unforeseen impediment to loading or unloading (s), such as the crowded state of the docks ; for he has expressly engaged, and is bound by the terms of his own positive contract (a). "The duty of providLng, and making proper use of, sufficient means for the discharge of cargo, when a ship which has been chartered arrives at its destination and is ready to discharge," says Lord Selborne, L.O., in Postlethwaite v. Freeland{b), " lies (generally) upon the charterer. If by the terms of the oharterparty he has agreed to discharge it within a fixed period of time, that is an absolute and unconditional engagement, for the non-performance of which he is answerable, whatever may be the nature of the impediments which prevent him from performing it, and which cause the ship to be detained in his service beyond the time stipulated. If, on the other hand, there is no fixed time, the law implies an agreement on his part to discharge the cargo within a reasonable time ; that is, as was said by Mr. Justice Blackburn in Ford v. Cotesworth (c), ' a reasonable time under the circumstances.' " Consequently, a delay of thirty-one days, owing to the absence of lighters, caused by the custom of the port, did not impose liability for demurrage on charterers boimd to " discharge with all despatch according to the custom of the port " (rf). (x) Abbott, Part 4, c. 2, s. 2 (12fch without knowledge of either party), ed.); The Juliana, 2 Dodson, 604, 521. (a) See -DaW v. iV«feo», 6 App.Cas. 38; (y) Godard v. Gray, L. B. 6 Q. B. Sarria v. Jacobs, 16 Q. B. D. 247 ; at p. 147. Fordv. Cotesworth, L. R. 4 Q. B. 127; If) Barker v. Soigion, 3 M. & S. 6 Q. B. 544 ; Cunningham v. Dunn, 3 267 ; Thiis v. Byers (bad weather), 1 0. P. D. 443, as to failure to load Q. B. D. 244 ; Thompson v. Wagner, 4 owing to acts of a foreign state. Gamp. 335, n. ; Kearott v. Pearson, 7 H. (i) o App. Gas. 699, at p. 608. ftN. 386; J'«»«'ei;Av.5. Co., 2 Q. B. D. 238 ; French v. Gerher, 2 0. P. D. 247 ; Sarris v. Jambs, IS Q. B. D. 331 ; Restitution Co. v. Hrie i Co., 61 L. T. N. S. 330. As to its effect on freight payable before load- ing, see Lochhart v. Falk, L. R. 10 Ex. 132. (i) Salvesen t. Guy, 13 So. Sess. Gas., 4th series, 85; Benyon v. Kennett, 8 ib. 694. CONTRACTS OF AFFREIGHTMENT. 337 It often becomes important to determine whether, according AffreigM- to the true construction of a charterparty, the possession of the oharterparty. ship passes to the merchant, so as to constitute him an owner pro kdc vice, and cause the general owner to stand to him in the relation of a lessor rather than a carrier. On this question may depend the owner's right of lien for the freight, of which description of remedy we shall speak more fully hereafter (j), or his own liability to the suit of third parties (k) . It is impossible, however, to lay down general rules for its solution, which must, in each case, be gathered from the terms of the instrument, or its purpose and object. Rarely in modern cases is it held that such a transfer of possession takes place. In the case of a ship let to the Commissioners of the Transport Board, the possession was held to pass to the king, on account of the nature of the service on which she was to be engaged (l). On the other hand, though the charterparty in Wagstaff v. Anderson (m) provided that the whole ship should be at the disposal of the charterers except the space necessary for the crew and stores, that the master was to sign bills of lading at any rate of freight which the charterers might require, without prejudice to the charterparty; it was held the charterers were not liable for improper sale of goods by the master. It is questionable whether the decision in the former case would now be followed. Lord Ellenborough relied U) See Abbott, Part 4, o. 2, 12th ed. ; 7 E. & B. 704 ; Sandeman v. Seurr, L. lion V. Colvin, 3 Bing. N. C. 17 ; E. 2 Q. B. 86 ; The Omoa Coal Co. v. Small V. Moates, 9 Bing. 674 ; Belcher Huntley^ 2 C. P. D. 464 ; Steely. Lester, T. Capper, 4 M. & G-. 602. See also 3 0. P. D. 121. Marquand v. Banner, 6 E. & B. 232 ; (/) Triniti/ H. v. Clark, 4 M. & S. Croookewit v. Fletcher, 1 H. & N. 893 ; 288. See Dean v. Sogg, 10 Bing. 345 ; Thompson v. Small, 1 C. B. 328 ; San- Yates v. Hailstone, 3 Taunt. 293 ; N^eill demon v. Scurr, L. R. 2 Q. B. 86. v. Ridley, 9 Ex. 677 (freight of deck (A) Newberry v. Colvin, 1 C. & J. cargo payable to owner) . In Fenton v. 192 ; 1 01. & F. 283 ; Lean v. Hogg, 10 City of Dublin Steam Packet Co., 8 A. & E. Bing. 346 ; Reeve v. Davis, 1 Ad. & E. 835, the owners were to keep the vessel 312 ; Fenton v. City of Dublin Steam in order, and the charterers to pay all Packet Co., 8 Ad. & E. 835 ; Marquand wages and disbursements; it was held, V. Banner, 6 E. & B. 232 (which is that the owners continued in possession doubtful) ; Meiklereid Y. West, 1 Q. B. of the ship, and liable for mischief done D. 428 ; and see per Cresswell and by the negligence of the crew. Willes, JJ., in Gilkison v. Middleton, 2 (m) 5 C. P. D. 171. C. B. N. S. 164 ; Schuster v. M'Kellar, S. — VOL. I. Z 338 MERCANTILE CONTKACTS. Affreight- much On the fact that the constniction which he adopted would ment by . m ii • i p charterparty. "enable the Crown fully and beneficially to enjoy the use of the ship, which seems immaterial. He also said of the agree- ment that "it is the same thing as the hire of a waggon and team for a certain term, the proprietor stipulating that the waggon should be driven, and the horses taken care of, by his own waggoner and boy " (n). A charterparty, or written contract for the conveyance of goods, &c. on board ship, is liable to a duty of 6d., which may be denoted by an adhesive stamp. This must be cancelled by the person who last executes it, or by whose execution it is completed. If it be executed abroad, it may be so stamped within ten days after its receipt here and before it has been executed by anyone in this country, and the stamp must be cancelled. An executed instrument, not stamped, may have a stamp impressed within seven days after its execution on payment of the duty and 4s. 6d. penalty; after seven days and within one month, on payment of the duty and a penalty of 10^. In no other case shall the stamp be impressed (o). Section II. — Contract/or Conveyance in a General Ship. Contract for When the masters and owners of a ship engage with separate conveyance in _ j. d o merchants to convey their goods to the place of her destination, _ the contract is said to be for conveyance in a general ship (p). It is usual to advertise such ship in the newspapers, or in cards and handbills ; and care should be taken to insert nothing in these advertisements which it is not the shipowner's intention to make strictly good ; since it is not clear that some of the terms of such advertisements may not be looked upon as incorporated into the contract {q). But the instrument to which reference is (w) See Quarman v. Btmtett, 6 M. & Ziver Alkali Co. v. Johnson, L. B. 7 W. 499. Ex. 267 ; Sapn v. OulUfird, 4 C. P. D. (o) 33 & 34 Vict. 0. 97, soiled., and 182 ; Fmdorfv. Bamilton, 16 Q. B. D. BS. 23, 66, 67, 68. at p. 633, and article in Law Quar- ts) As to tlie liability of the owner terly Review, vol. v., p. 15. of such a ship as a common carrier, (q) Abbott, Pt. 4, c. 4, 12th ed. ; and therefore insurer of goods carried, . JPMUips v. Edwards, 3 H. & N. 813 ; see JVM<7e« upon the good ship called the (r), whereof C. D. is a. 20. ' master, now riding at anchor in the river Thames, and bound for Barcelona, in Spain, 20 bales, containing 100 pieces of broad cloth, marked and numbered as per margin, and are to be delivered in the like good order and condition at Barcelona aforesaid (the act of God, the king's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever excepted), unto E. F., merchant there, or his assigns, he or they paying freight for the said goods per piece freight, with primage and average accustomed. In Witness whereof, the master or purser of the said ship hath aflSxmed to three bdls of [l) Ibid. iP) ^i't)«^ V. Mx, 4 M. & W. (m) See The Thames, 14 Wall. 98. 775, and Iron Mountain Railway v. («) Barter y. Meyerstein, L. R. 4 Knight, 15 DaYia, p. 87. H. L. 317. (i?) Saatings v. Pepper, Pars, on, (o) Smders t. MaeUan, 11 Q. B. D. Shipping, 1, 188, n. 327. (»•) 28 L. J. Ch. 582. CONTRACTS OF AFFREIGHTMENT. 343 lading of this tenor and date ; one of which bills being Contract for accomplished, the other two to stand void. a°gene^°^ ™ " Dated at London, the day of ." ^^ But in the bills of lading actually used, especially by steam- ship companies, are introduced many other proTisions limiting the liability of the owners. A bill of lading should bear a 6d. stamp, and cannot be stamped after its execution. A person who executes an un- stamped bill of lading is liable to a penalty of 50/. (s). In the above form, a consignee {i) of the goods, viz., E. F., is mentioned, to whom, or to whose assigns, they are to be de- livered. But the bill is sometimes made out for delivery " to order or assigns," which imports an engagement to deliver to the person whom the consignor shall nominate, and his assigns, or sometimes to the shipper himself, his order, or his assigns. If no such words appear in the bill of lading, it will be in no sense negotiable (m). Primd facie a delivery of goods on board a vessel, under a bill of lading in the latter form, or to the order of the vendor, though it be the vessel of the intended consignee, imports an intention on the part of the consignor, especially if he be an impaid vendor, to reserve to himself the property in the goods, and that that shall pass by the indorsement of the bill of lading. In such ease, until it has been indorsed and accepted by the indorsee, the goods remain the vendor's, so as to preserve his rights, whether as an unpaid vendor or otherwise {x) ; and he has a perfect right to vary their destination {y), and if payment of the price be refused, to sell them (z). But such a biU. of (s) 33 & 34 Vict. 0. 97, sohed. and {x) Mirabita v. Imperial Ottoman s. 56. JBank, 3 Ex. D. at p. 172;, Wait v. (<) As to the efEeot of this, and his Baker, 2 Exch. 1 ; Soare v. Dresser, right to sue for loss, &o. of the goods, 7 H. L. Ca. 290 ; Ogg v. Shuter, L. R. see Tronson v. Sent, 8 Moore, P. 0. Ca. 10 0. P. 159, overruled 1 C. P. D. 47 ; 419. Gaharron v. Kreeft, L. E. 10 Ex. 274. (m) Henderson v. Comptoir d'Eseompte (y) Ullershatv v. Magniac, 6 Exch. de Paris, L. R. 5 P. C. 263. The con- 670, xi. ; Scothorn v. South Staffordshire trary opinion was expressed in iSa»im« J?«t?. Co. , 8 Exoh. 341; Ogg y. Shuter, y.Buding,M.&U.511. 1 0. P. D. 47. («) Ogg V. Shuter, ubi supra. 344 MERCANTILE CONTRACTS. Contract for lading is not conclusive— it merely creates a presumption (e) : conveyance in ° "^ a i. \ / 7 a general and it will be a, question of fact, looking at the whole of the — '■ . circumstances under which the shipment took place, what was the intention of the parties : whether the delivery was not really for and on account of the vendee, and the bill of lading was made out to the vendor on behalf of, and as agent for, the vendee, in which event the property will have passed and vested in the in- tended consignee ; or whether it was not intended to preserve the rights of the unpaid vendor, until some further act was done, by transferring the bill of lading (/). In the decision of this question, the circumstance of the shipment being on board the vessel of the intended consignee, and the bill of lading being expressed to he freight free, or an invoice being sent by the con- signor stating the shipment to have been made for and at the risk of the intended consignee, will be material for the conside- ration of the jury (g-). If a bill of exchange be sent with the bill of lading, the consignee is bound to accept the bill drawn against the cargo if he retain the bill of lading, and until such acceptance the property in the goods should not pass to the consignee (A) . Other clauses than those above mentioned may be, and often are, introduced into the bill of lading, according to the nature of the contract between the parties to it. It is impossible to state here aU or even many of them. The following are examples : — A clause to provide for the payment of demurrage by the consignee, the effect of which will be to raise an impHed undertaking on his part to pay it, if he receive the goods imder such bill of lading, and that, too, though he have no valuable interest in them ; for the " acceptance of the goods in pursuance (e) The burthen of proof lies on the So in the case of the mate's receipt : party contradicting this presumption : Falk v. Fletcher, 18 C. B. N. S. 403. Sliepherd v. Harrison, L. E. 5 H. L. (g) But see Ogg v. Shuter, ubi supra ; 116. and Turner v. Trustees of Liverpool (/) Van Casteel v. Booker, 2 Exch. Docks, ubi supra, where the goods were 691 ; Twrmr v. Trustees of Liverpool on the vendee's ship. Docks (goods on purchaser's own ship), (A) Shepherd v. Smrison, L. E. 5 6 Exch. 543 ; Shepherd v. Sarrison, H. L. 116; Mirabita v. Imperial Otto- L. E. 5 H. L. 116 ; and see Brovm v. man Bank, ubi supra ; National Bank v. North, 8 Exch. 1 ; Key v. Coiesworth, Merchants' Bank, 1 Otto, 92. 7 Exch. 695 ; Ogg v. Shuter, ubi supra. CONTRACTS OF AFFREIGHTMENT. 345 of a bill of ladinsr, whereby the shipper has expressly made the Contract for ° ... . conveyance in payment of freight or demxirrage a condition precedent to their a general delivery, is evidence of a contract by the consignee to pay such ?1 demand" («■). So, too, there may be a clause "with liberty to call at any port," which permits of calling at any port for any purpose connected with, and in furtherance of, the scope of the adventure. We shall have occasion to advert again to this subject. It has been seen that the bill of lading is usually made out for the delivery of the goods to the order of some person, ex. gr., E. E., or his assigns. E. F. can, therefore, by naming an assign, transfer his right to them to some other person {j). The mode of appointing an assign is by indorsing and handing over {k) to him the negotiable instrument. Accordingly, it is the common practice of merchants to negotiate it, and, by such assignment, the property in the goods is held to pass to the indorsee of the bill of lading if such was the intention of the parties (/). " The bill of lading," says Bowen, L. J., in Sanders v. Maclean (w), " until complete delivery of the cargo has been made on shore to some one rightfully claiming under it, remains in force as a symbol, and carries with it not only the full ownership of the goods, but also all rights created by the contract of carriage between the shipper and the shipowner." Nay, though the con- signee named in the bill of lading should become insolvent, without having paid for the goods, yet his assignment, made for a valuable consideration, and without notice to the assignee that the goods were not paid for, or that they were paid for by biUs (t) Seaife v. ToHn, 3 B. & Ad. 623, Co., L. E. 3 C. P. 190. Until thebiU of per Parke, J. ; see post, p. 375. lading has been received and iwapfeii by {j) Smderson v. Comptoir d'Uscompte the indorsee, or the properly somehow de Farit, L. R. 6 P. 0. 253. The re- appropriated, the property does not oeipt of the goods by the indorsee pass: TFait.v. Baker, 2Sxcb..l; Soars under these circumstances would be v. Dresser, 7 H. L. Ca. 290. evidence from which a contract to pay (I) Wright v. Campbell, i Burr, freight might be inferred. See post, 2046 ; Sewell v. Surdiek, 1 Bla. 628 ; pp. 375, 376. As to special and blank Caldwell v. Ball, 1 T. R. 205 ; Sibbert indorsements, see Sewell v. Burdiek, 10 v. Carter, 1 T. R. 745. App. Cas. at p. 83. (»») 11 Q. B. D. 327, p. 341 ; Barber [k) Sracaehiv. The Anglo-Egyptian N. y. Meyerstein, L. R. 4 H. L. 317. 346 MEROANTILE CONTRACTS. Contract for gyre to be dishonoured, has been held to pass them absolutely to a general his assignee, and to deprive the consignor of his right to stop in ■ — — transitu, which, as against the original consignee, he might have exercised («). But if the assignee of the bill of lading have not given valuable consideration or ac^d bond fide ; for instance, if he knew that the consignee was insolvent, and assisted to defraud. the consignor of the price of his goods (o), he stands in the same situation as the consignee, and the consignor retains his right to stop in transitu. And, if there be any condition, either in the bill of lading or in the indorsement thereof, ex. gr., if the goods are to be delivered jj«ot&(? E. F. pay a certain draft, all subsequent indorsees take subject to that condition, and have no title until it is complied with {p). But although the bill of lading is so far negotiable, it is not negotiable in the sense in which a bill of exchange or promissory note is so ; property does not pass by mere delivery to a bond, fide holder for valuable consideration; it is negotiable only as a symbol of the goods. Therefore, save in cases within the Factors Act ($■), delivery by a person who has improperly obtained it, or without authority from the true owner, of a bill of lading indorsed in blank to a bona fide transferee for value, confers no title to the goods which it represents {r). Its indorsement, too, formerly transferred no more than the property in the goods — ^it did not transfer the contract between the original parties to it. Therefore, the assignee of such an instrument could not maintain an action founded upon that contract (s), nor could an action founded upon it be brought against him. (») Liclcharrow v. Mason, 2 T. R. 63 ; (o) Cuming v. Brown, 9 East, 506 ; 1 Sm. L. 0., 9th ed. 737 ; which was Rodger v. The Gomptoir d^Escompte do reversed in error, 1 H. Bl. 357, and Paris, L. E. 2 P. C. 393. error brought on the reversal in Dom. {p) Barrow v. Coles, 3 Camp. 92. Proc, and the cause directed to be (y) The above passage is cited by tried anew; which it was, and ad- Whiteside, C. J., as a correct state- judged as at first, 6 T. R. 683 ; which ment of the law in Batetnan v. Grem, judgment was acquiesced in. See 2 Ir. C. L. p. 197. Newaom v. Thornton, 6 East, 17 ; Solo- (»■) Gv/rney v. Behrend, 3 E. & B. mons V. Nissen, 2 T. E. 674 ; Gloahee 622. V. Pease, L. E. 1 P. C. 219. («) Lord Eaher, M. E., in Cox v. BriKe, 18 Q. B. D. at p. 160. CONTRAC!TS OF AFFREIGHTMENT. 347 This was foiind. to be inconvenient, and therefore, hy 18 & 19 Contract for Vict. C. Ill, B. 1, it was provided that — a general " Every conBignee {t) of goods named in a bill of lading, and every indorsee of a bill of lading to whom the property («) in the goods therein mentioned shall pass, upon or by reason of such con- signment or indorsement, shall have transferred to and vested in him all rights of suit (v), and be subject to the same Uabilities (w) in respect of such goods, as if the contracts contained in the bill of lading had been made with himself." Neither at common law nor under the statute does every transfer of a bill of lading transfer a property, with the effect of niaking the transferee necessarily subject to aU the liabilities of the transferor. " The preponderance of principle and reason,'' said Earl Selborne, in Sewell v. Burdick {x) — a case in which it was sought to make the pledgees of a bUl of lading liable for demurrage, &c. — "appears to me to be against the proposition that, as between those parties, it can have been intended by, or can be the effect of, the statute to make the creditor of the shipper liable (in effect) as his surety to the shipowner (with whom he was never brought in contact), by reason only of the deposit with him, by way of security, of a bill of lading indorsed in blank, his right under that deposit being (whether at law or in equity) special and not general, and the shipper retain- ing (whether at law or in equity) the real and substantial property in the goods, subject to the security. It had not, until the present case, been directly or indirectly determined by any authority that such is the effect of the statute." The decision in terms applies only to a pledge ; but there can be little doubt that the same result would follow if there was a mortgage (y). Nor does the statute alter the rule that a biU of lading gives, in general, no better rights to the iadorsee than the indorser himself had under the bill of lading (z). It was not {<) See Lewis v. McKee, L. E. 2 Ex. N. S. 812 ; TlieNepoter, L. R. 2 A. & E. 37 ; 4 Ex. 58. 375. (m) As to the meaning of this word, (x) Sewell v. Burdick, 10 App. Cas. see Sewell v. Burdick, 10 App. Gas. 74. 74, at p. 90. (») He may sue in the Admiralty [y) See Lord Blaekbum's remarks. Court, see The Felix, L. E. 2 A. & E. ibid, at p. 97. 273. («) 1 Smith's L. 0. 814, 9th ed. ; (w) Smurthteaite-7. Wilkim, 11 0. B. Owney v. Behrend, 3 E. & B. 622. ship. 348 MERCANTILE CONTRACTS. Contract for intended by the statute to divest the original parties of their conveyance m / \ i i • i a general rights. Therefore, it is provided (a) that nothing therein eon- ^ '^' tained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper {b) or owner, or any Hahihty of the consignee or indorsee, by reason or in consequence of his being such consignee or indorsee, or of his receipt of the goods by reason or in consequence of such consignment or indorsement. The consignee or indorsee does not, however, at all events, incur a permanent responsibility : it may be terminated by his indorsement of the bill of lading, so as to part with the property in the goods (c). But parting with the property without assigning the biU of lading wiU not have that effect yd). Several parts of a bill of lading, signed by the master, are generally delivered to the shipper, and, in some instances, these parts have been indorsed to different persons ; in such case, the shipmaster may deliver the goods to the first person, whether the original consignee or an indorsee, presenting one part of the bin of lading, provided, of course, the master has no notice of a prior assignment (e). The power of thus transferring the property in the goods by an assignment of the bill of lading remains to the shipper as long as the goods are in the hands of any agent of his, and he may alter their destination while they are on board, provided the bill of lading has not been transferred ; thus, if the captain sign a bill of lading for the delivery of the goods to A. or his assigns, and the shipper afterwards obtain and transmit to B. a bin of lading, making them deliverable to him, B. wiU be entitled to them, if nothing further had been done to vest the property in A. (/). The power, too, of thus transferring the {a) Sect. 2. a shipowner may deliver the goods to (4) Fox V. Nott, 6 H. & N. 630. the first person presenting a bill of (c) Smwrthwaite V . Wilkins, 11 C. B. lading, this does not affect the legal N. S. 842. See Zemis v. McEee, L. R. ownership of the goods as between the 2 Ex. 37 ; 4 Ex. 58. holders of the different bills of lading. (d) Fowler v. Knoop, i Q. B. D. Sarber v. Meyerstein, L. E. i H. L. 299. 317. (e) Glyn v. East ^ West India Sock {/) Mitohel v. Ede, 11 Ad. & E. 888; Co., 7 App. Cas. S91, and see Sanders Ellershaw v. Magniac, 6 Exch. 570, n. ; V. Maclean, U Q. B. D. 327. Though Gaharron v. Kreeft, L. R. 10 Ex. 274. CONTRACTS OF AFFREIGHTMENT. 349 property in goods by means of tlie bill of lading continues until Contract for there has been a complete delivery under it, even though they a general may have been landed {g). — '- The above observations regarding the negotiation of the bill of lading by a consignee, apply to the case of consignment of goods to a purchaser ; for where they were consigned to a, factor, his power of altering the property in them, by indorsement of the biU of lading, was less extensive, since it was thought that, though he might bind his principal by a sale of the bill of lading, because a factor's usual employment is to sell, yet he could not by a pledge thereof, for that is not within the scope of his authority (A). The Factors Act, 1889, repealing 6 Geo. 4, c. 94, 5 & 6 Vict. c. 39, and 40 & 41 Yict. c. 39, gives effect to his pledge also(«). The provisions are set out and commented upon ante, Book I. Chap. 5 {J). Bills of lading may be given for goods put on board by the charterer. Usually the bill of lading contains some such words as " without prejudice to the charterparty." But even if there are no such words, the contract will be presumed to be in the charter. "As between the charterers and the ship- owners," says Lord Usher, M. R., in Rodocanachiy. Milbuni [k), "the bill of lading does not alter the contract between them contained in the charterparty." A holder of the bill who is merely an agent of the charterer will be in the same position as the charterer {I). A master may give bills of lading which will in effect vary the charter as against the charterers. In GulHschen v. Stewart (m) , the charterparty contained the usual provisions as to freight and demurrage, and also the cesser clause, namely, that all liability of the charterers ceased as soon as the cargo was on board. A bill of lading whereby the goods were made deh- {•) Faynter v. Jmnes, L. R. 2 C. P. 19 Vict. c. Ill, s. 1, ante, p. 347. 348. "Under an ordinary bill of 360 MERCANTILE CONTRACTS. Duties of upon those of another, though he may any part of what is con- master and owners. Signed to One and the same person for the charges upon it ~~~ all(M). Nor will he be able to sue for primage if the goods he received under a charterparty, the terms of which exclude primage («). The maimer of delivering up the goods, and consequently the period at which the master ceases to be responsible for them, depends, in the absence o£ agreement, on the custom of the place (y). In the absence of any custom upon the subject, the consignee's right has been decided to be to have reasonable time and opportunity for coming and receiving them from the ship's side (s) . The consignee must, in the absence of a special agree- ment, discharge the vessel with reasonable dispatch (a). If the • consignee send a lighter for the goods, the master must, by the custom of the river Thames, watch them in the lighter till it is fully laden (J), but not afterwards (c). In the case of a trans- ferable biU of lading, if it be not produced, the master, after waiting a reasonable time, may deliver the goods to a third person to keep tUl it is produced (f^). In consequence of the difficulties to which a shipowner was subjected in the ease of goods imported from foreign parts, peculiar powers have been conferred on him by statute (e). If the owner of such goods " fails (/) to make entry thereof," or having made entry, to land or take delivery of them at the time (m) Sodergren t. Flight, Abb. p. 323, [a) Fowler v. Knoop, L. R. 4 Q. B. 12th ed., cited 6 East, 622. D. 299. («) Gaughey v. Gordon, 3 C. P. D. (4) Catley v. Wintrmgham, Peake, 419. N. P. C. 160. (y) Petrocoohmo t. Bott, L. R. 9 C. P. (c) Sobimon v. Turpin, Abb. p. 325, 355 ; Marzetti v. Smith, 49 L. T. 12th ed. 580. See when he is prevented from (d) Soward v. Shepherd, 9 C. B. landing them there, Cargo ex Argos, 297 ; Gatliffe v. Bourne, supra. L. E. 4 A. & E. 13. (e) 25 & 26 Vict. c. 63, ss. 67 et seq. («) Oatlife V. Bourne, 4 Bing. N. C. See these sections, App., and Glyn v. 314 ; Bourne v. Gatliffe, 3 M. & G. East and West India Dock Co., 7 App. 643; confirmed on -vmt of error in Cas. 691. House of Lords, 7 M. & G. 850 ; (/) See The Energie, L. R. 6 P. C. 11 C. & F. 46; Ford v. Cotesworih, at p. 316, as to the meaning of Ij. R. 6 Q. B. 644; Cunningham v. "fails." Dmn, 3 C. P. D. 443. CdNTRACTH OF .VFFllEIGHTMEXT. 361 appointed by the charterparty or bill of lading, or if no time be ^^*^^ °^ , specified, within seventy-two hours after the ship is reported, the owners, shipowner is enabled to make entry of, land the goods, and place them in a wharf or warehouse, and give the wharfinger or warehouse keeper notice of his Hen, for which they may be retained {g). They then may be detained, not only for this lien but also for rent, and in the event of the lien not being paid or deposit made for it, the wharf or warehouse owner, if required by the shipowner, is to sell {h) at the expiration of ninety days from the time of their deposit with him, or if the goods be perishable, at an earlier period at his discretion. Notice of this sale is to be published, and also given to the owner of the goods if he be known. The freight and other charges may then be deducted from the proceeds («). In cases to which the Merchant Shipping Act does not apply, i.e., goods not imported, the shipowner ceases, if the consignee does not take delivery, to hold them as carrier; he is liable only as a warehouseman (k). AU the duties which the law has thus imposed upon ship- owners, at all events when common carriers, and their agents are, after aU, no more than consequences of the general rule before stated respecting carriers (kk), viz., that they are respon- sible at conmion law for everything, except the act of God (l) and the Queen's enemies, and wear and tear, or natural decay and deterioration of goods (m). However, this, their common {ff) The Energie, L. R. 6 P. 0. 306 ; (kk) Seeijw Alkali Co. v. Johnson, Meytratein v. Sarber, L. E. 4 H. L. L. E. 9 Ex. 338, and Notara v. Sender- 817. As to his power to do this son, L. E. 7 Q. B. p. 236. abroad, see Mors Le Blanch t. Wilton^ (Q As to the meaning of the phrase, L. E. 8 0. P. 227 ; and as to the con- see per Melliah, h. J., in Nugent v. airaotionoiBeot.&T, The Clan Macdonald, Smith, 1 C. P. D. at p. 444; Livei- 8 P. D. 178; Beresfordir. Montgomtrie, Alkali Co. v. Johnson, L. E. 9 Ex. 34 L. J. C. P. 41. As to the duties of 338. a shipowner after goods are landed, see (m) Liver Alkali Co. v. Johnson, Glyn T. Eatt India Sock Co., supra. supra ; Nugent v. Smith, 1 C. P. D. (A) Sect. 73. 423 ; Slower v. G. W. Sail. Co., L. E. («) Sect. 76. 7 0. P. 665 ; Farrar v. Adams, B. N. (k) Crouch v. Great Western Sy. Co., P. 69. As to " Queen's enemies," see 2 H. & N. 491. The Teutonia, L. E. 4 P. C. 1 71 ; Sus- sell V. Niemann, 34 L. J. C. P. 10. 362 MERCANTILE CONTRACTS. Duties of law liability, is usually narrowed by their own express stipii- owners. lations in the charterparty or biU of lading, and has also been qualified by the intervention of the legislature. The bill of lading contains, as we have seen, these words: " the act of Grod or the Queen's enemies (m), fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, excepted "(o). The first two of these were, as we have seen, exceptions, even at common law. The third is made so by stat. 17 & 18 Vict. c. 104, s. 503, which enacts {p), that no owner of any sea-going ship, or share therein, shall be liable to make good any loss or damage which may happen without his actual fault or privity of or to any goods, merchandise, or other things whatsoever, taken in or put on board any such ship, by reason of any fire happening on board such ship. In this clause the master is not mentioned, and it may there- fore be doubtful whether his responsibility is in this case removed by the statute ; but the insertion of the word " fire " in the bm of lading certainly removes it ( g-). " Fire " means fire on board the vessel ; it does not extend to fire on board a lighter on which goods have been placed for the purpose of landing them (»'). The exception "fire on board" would not exempt the shipowner from liability for general average for loss by water being poured on the cargo to extinguish a fire (s). An injury by rats is not a danger or accident within this" ordiaary exception in the bill of lading, unless it led to sea damage ; and the owner has been held liable for such damage, even though he had cats on board (^). He was also, like an (») See the preceding note. It is [q) Abb. Part 4, c. 3, s. 3, 12th usual to except, also, "restraints of ed. princes," as to which, see Finlay v. [r) Morewood v. PolJoh, 1 E. & B. Liverpool ^ G. W. S. Co., 23 L. T. 743. N. S. 251. («) Crooks v. Allan, 5 Q. B. D. 38 ; (o) See ante, p. 342. ' Schmidty. MoyalMailS.S. Co., 45 L.J. {^) This was a substitution for the Q. B. 646. statute 26 Greo. 2, c. 86, s. 2, which [t) Imeroni v. Brury, 8 Exoh. 166; was repealed by 17 & 18 Vict. c. 120, Kay v. Wheeler, L. R. 2 C. P. 302 ; ssi4andl4.> w\-^SamiltonFraser^Co.-v.rmdorff,Vl App. Cas. 518. CONTRACTS OV AFFREIGHTMENT. 363 ordinary carrier, liable for .the felonious acts of his servants Duties of master and or strangers. Whence it has become not unusual to extend owners. the exception to the acts of robbers, and sometimes thieves. But the former has been held not to apply to thefts without force {u), and the latter not to thefts by persons belonging to the ship (»). The shipowner's contract in the case of a bill of lading, says Willes, J., in Orilly. General Iron Screw Colliery Co. (y), "is to cairy with reasonable care, imless prevented by the excepted perils." Before he can avail himseK of the exceptions, he must have acted with " reasonable care," and he wiU be responsible for the result of these, or other like excepted causes, if the loss happen through the fault of himself or the master (z). Thus, damage in consequence of a collision from negligence, or barratry of the crew (a), or bad stowage {b), or defective fastening of the ports (c), or deviation {d), are not within the exceptions (e). The 17 & 18 Vict. e. 104, also enacts (/) that no owner of any sea-going ship, or share therein, shall be Hable to make good any loss or damage that may happen without his actual fault or privity of or to any gold, silver, diamonds, watches, jewels, or l^recious stones, taken in or put on board any such ship, by reason of any robbery, emhezzkiitcnt, making atvay with or secreting thereof, imless the owner or shipper thereof has, at the time of shipping the same, inserted in his bills of lading, or otherwise declared in writing to the master, or owner, of such ship, the true nature (») Be Rothschild v. Royal Mall S. P. ante, p. 329. Company, 7 Exoh. 734. (i) Sayn v. CulUfard, i 0. P. D. [x) Taylor v. Liverpool and G. W. 182. Steam Co., L. R. 9 Q. B. 546. (o) Steel v. State Line S.S. Co., 3 (j/) L. R. 1 C. P. 600, at p. 612, App. Cas. 72. cited by Lord Seraehell in The Xantho, [d) Scarainanga v. Stamp, 5 C. P. D. 12 App. Cas. p. .510. 295. (s) Phillips V. Clark, 2 C. B. N. S. («) Chartered Mercantile Bank of India 156. V. N. I. 8. N. Co., 10 Q. B. D. at (a) Lloyd v. General Iron S. C. Co., 3 p. 531, per Brett, L. J. ; The Chasca, H. & C. 284 ; Grill v. The G. I. S. C. supra ; and see Dixon v. Sadler, 5 M. & Co., L. R. 1 C. P. 600 ; 3 C. P. 476 ; W. 406 ; Davidson v. Burnand, h. R. 4 The Chasm, L. R. 4 Ad. 446 ! Czech v. C. P. 117. O. ,-. Mendc:, 2 B. & Aid. 374 MEKCANTILE CONTBACi'S. Duties of the expired. It is well established that, if the ship has waited a fihlTlTlAT* : '■ reasonable time to deliver goods from her side, the master may- land and warehouse them at the charge of the merchant ; and it cannot be doubted that it would be his duty to do so rather than to throw them overboard. In a case like the present, where the goods could neither be landed nor remain where they were, it seems to be a legitima.te extension of the implied agency of the master to hold that, in the absence of all advices, he had authority to carry or send them on to such other place as in his judgment, prudently exercised, appeared to be most convenient for their owner ; and if so, it will foUow from established principles that the expenses properly incurred may be charged to him." The owner has a Hen on the goods until the freight is paid, if he do not agree to waive it («), have not lost it by conduct inconsistent with its continuance (y), or have not framed his charter-party ia such a manner as to part with the possession of the vessel to the charterer (s). This right he will retain against the charterer or his agent with notice of the charter, though hills of lading be signed making the goods deliverable on payment of less freight (a). But as agaiast assignees or consignees who have purchased or made advances on the faith of the bill of lading without notice of the charter-party, he can only retain the goods for the freight mentioned in the hill of lading {b). It has been held, even in case of a chaxter- party by which part of the freight was payable during the voyage and the rest by bills at two and four months' date from the day of the arrival of the ship in the Thames on her home- ward voyage, that the charterer, having failed before the ship's return, the owner might insist on retaining a lien on the goods (;(.•) Hotv V. Kirchner, 11 Moore, freight. P. 0. Ca. 21 ; Kirchner v. Venus, 12 («) McLean v. Fleming, L. B. 2 Moore, P. 0. Ca. 361; Kern v. H. L. So. 128; Gray \. Carr,'L.'S,. 6 Deslmdes, 10 C. B. N. S. 205 ; GM- Q. B. 522. stones V. AUen, 12 0. B. 202 ; Gilkison [b) Gardner-r. Treehiimn, 15 Q.B.D. V. Middkton, 2 0. B. N. S.- 134. 154 ; and see Fry v. The C. M. B. of (y) Bunncy v. Foyntz, 4 B. & Ad. India, L. R. 1 C. P. 689. As to the 568; Carver, s. 679. meaning "without prejudice to the (a) See Omoa Coal Co. v. Muntley, charter-party," see Foster v. Co&j, 3 2 C. P. D. 464, and JTirchney v. Vemis, H. & N. 705 ; Shand v. Samderson, 4 12 Moore, -P. 0. :;G1, as to lien for H. ,!i- N. 381. CONTRACTS OF AFi'KElGHTMEK T. 375 for his freight (c). But it would seem that, in the absence of ^^*^%°* *^ special agreement, there is no lien for freight due before delivery. The lien, too, is sometimes extended to dead freight and de- murrage, hut this must be by agreement The shipowner has not, in the absence of a general usage, a right to a general lien id). Whether the shipowner exercise that right or no, he may sue the charterer upon his contract to pay freight (e). When there is no charter-party, a contract to pay freight may gene- rally be inferred from the fact of shipment (/) ; though the shipper may be freed from liability by the express terms of the bill of lading, or by delivery of a bill of lading, with an in- dorsement freeing the shipper {g). Where a biU of lading ex- pressed goods to be consigned on account and risk of William Beekford, to Messrs. P. & W. or their assigns, they paying freight, the owner had a right to sue the consignor, Beekford, for freight in the absence of any evidence of a custom among merchants to the contrary. This appears to be the effect of the BiUs of pion V. C'olvin, 3 Bing. N. C. 17. See Savillev. Campion, 2B. & Aid. 603 ; Christie v. lewis, 2 B. & B. 410. In Campion v. Colvin, the Court ap- pears to rest its decision on the ground of special agreement, rather than on the general right of lien. •'Looking," says Tindal, C. J., " to the intention of the parties, it is clear the shipowner meant to insist on the delivery of the bills before the delivery of the cargo ; so that with respect to the time at which the freight was payable, there is no difference between this and the preceding oases." AxA see Akagtr \. St. Katherine's Bock Company, 14 M. & W. 794, where it was held there was no lien for freight, it having been made payable "in cash two months after the vessel's inward report ; " though another clause provided that the ship should deliver her cargo " on being paid freight," at il. Jer ton, and the charterer had become bank- rupt. So in Tamvaco t. Simpson, 19 0. B. N. S. 463 ; L. R. 1 C. P. 363 ; where bills had been given which had been dishonoured. (d) Rushforth v. Sadfteld, 6 East, 619. (c) Tapley v. Martens, 8 T. B. 4S1 ; Christy v. Row, i Taunt. 300 ; Shepard V. Be Bernales, 13 East, 665 ; Abbott on Shipping, 12th ed., p. 355. (/) Fox V. Nott, 6 H. & N. 630. (y) Domett V. Beekford, 2 N. & M. 374 ; 6 B. & Ad. 521 ; overruling the opinion expressed by Lord Tenterden in Brew v. Bird, M. & M. 156. It might, however, be otherwise if the consignment were from vendor to vendee. (See Barker v. Savens, 17 Johns. 284, cited M. & M. 157, in notis.) In such a case, it might be urged that the consignor, in employ- ing the shipowner, acted as agent for the consignee (see Freeman v. Birch, 1 N. & M. 420) ; and perhaps Bomett V. Beekford, and the opinion of Lord Tenterden in Brew v. Bird, might, if this distinction were adopted, prove not completely irreconcileable. 376 JtEKC.iM'lLE COKTRACTS. Duties^of the Lading Act, 1855 (18 & 19 Yiot. c. Ill), which states (sect. 2) that nothing in the Act shall affect any right to claim freight against the original shipper or owner. Where the goods were deliverable to assigns on paying freight, and the consignees in- dorsed to C. & Co., their agents, who obtained the goods, it was held, before the Bills of Lading Act, that the consignees were not liable for fi-eight (A) ; the plaintiffs had debited C. & Co. with the freight. At common law the consignee or the indorsee of the bill of lading may be sued if he have received the goods in pursuance of a hill of lading, imposing the payment of freight or demurrage upon him («). "Whereaeargo,"saidParAc,B.,in Young x. Moeller(j), " is received under a bill of lading, that, though not necessarily raising a contract in law, is evidence from which a jury may infer a contract to pay freight in consideration of the captain giving up his lien on the goods." But if the consignee appears upon the face of the bill of lading to be a mere agent, no con- tract to become personally liable for freight can at common law be implied from his receipt of the goods under it{k). Nor was the acceptance of the goods o/" «foe^ sufficient to impose charges in respect of them, although other circumstances concurring with acceptance may (/) ; such, for instance, as the previous dealings of the parties (m). And if there be only a bill of lading the law will not, from his mere receipt of goods under the biU of lading, (A) Tallin v. Crawford, 9 M. & W. (consignee not liable for general aver- 716. In leu-is v. M'JCee, L. R. 2 Ex. age contribution) ; and see per Slack- 37 ; i Ex. 58, the consignee had ia- bum, J., in Kingston V. Wendt, 1 Q.B. dorsed the bill of lading to " W. & K. D. 371. or order, &c., looking to them for all [m) Coleman v. Lambert, 6 M. & "W. freight, &o." But there was no proof 502, ubi, by Farke, B.; "The con- of assent by the plaintiffs discharging signee is, prima facie, the owner of the consignees. the goods ; but if he be not, he is not (») Wegener v. Smith, 16 0. B. 285 ; liable, simpUciter, as consignee, ex- Wegtielin v. Cellier, L. R. 6 H. L. Cas. cept on a new contract to pay the 286 ; Totrng v. Moeller, 5 E. & B. 755 ; freight. That is evidenced in oi-di- Allen V. Coltart, 11 Q. B. T>. at p. 785. naiy oases by the bill of lading. I See Michenson v. Begbie, 6 Bing. 190. accede, also, to the decision in WiUon U) 5 E. & B. at p. 760. v. Kynier (supra), that the same eri- (*) Amos V. TemperUy, 8 M. & W. 798. denoe may be deduced from the pre- (0 Wilson V. Kymer, 1 M. & S. vious dealings between the parties." 157; Seaife v. Tobin, ?, B. & Ad, 623 CONTKACTS Of AFFKEIGHTMENT. 377 raise an implied promise from an indorsee to pay freight or Duties of the charges (»), though it is evidence of such a promise, which may he suhmitted to the jury, and on which they may find it (o). But if there he a charter-party containing an express contract hy the charterer to pay freight, referred to in the hill of lading, it is questionahle whether, apart from the Bills of Lading Act, a jury would he warranted in finding an agreement on the part of the consignee or indorsee to pay freight, as the reference in the hill of lading may have heen introduced simply for the purpose of keeping the charter-party unvaried, and preserving the lien for freight under it{p) ; and it is clear that the mere acceptance of goods under a hill of lading, making them deliver- ahle to the consignee, " paying for the goods as per charter- party," does not render him liable for demurrage at the port of loading stipulated for by the charter-party (q). Now the Bills of Lading Act, 1865 (r), s. 1, enacts that — "Every consignee of goods named in a bill of lading, and every indorsee of a bill of lading to whom the property (i) in the goods therein mentioned shall pass upon or by reason of such consign- ment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with himself." Apparently these words would include freight to be paid in advance, hut not actually so paid {t). There are some cases in which an utter stranger to the contract may become chargeable with freight. Thus, if a («) Moorsom v. Kymer, 2 M. & S. The lien for freight is not necessarily 303. See Finder v. Wilka, 5 Taunt. reserved ; " without prejudice to this 612 ; Abb. on Shipping, p. 359, 12th charter-party," may mean that the ed. See, however, the statute, ante, contract by that is to remain unvaried : p. 347. Foster \. Colby, 3 H. & N. 70-5 ; ShmiA (o) Moeller v. Yowng, 5 E. & B. 755, v. Smmdenon, 4 H. & N. 381. per Farhe, B. at p. 760; Sanders v. [q) Smith \. SievcJcing, 4 E. & B. Vanzcller, 4 Q. B. 260 ; Kemp v. Clark, 945 ; 5 E. & B. 689 ; and see Chappe. 12 Q. B. 647; Wegener v. Smith, 16 v. Comfort, 10 C. B. K S. 802. C. B. 285. These are cases before the (r) 18 & 19 Vict. o. 111. statute. (s) See supra, p. 347. [p) Siindirs v. J'aiizeller, ubi sup. (/) Cai-ver, s. 606. 378 MERCANTILE CONTRACTS. Duties of the neutral- vessel, laden ■with the goods of one of two belligerents, '- be captured by the other, the ship is to be restored, and the goods confiscated, the captor paying the full freight ; for he has by his own act put himself in the place of the consignee with respect to the goods, and waived the completion of the voyage (»). But this is only where the goods are such as a neutral ship may, by the law of nations, carry (y). On the other hand, if the ship be hostile, and the goods those of a neutral, the captor is entitled to the freight, if he convey them to their destination, but not otherwise (s). If the ship, having performed part of her voyage, be dis- abled from completing the remainder, the master may, as we have seen, tranship the goods in order to convey them to their destination. In that case it was long a question whether the remainder of the voyage, after the transhipment, was to be considered as performed under the old contract or under a new one, and whether the remuneration was to be at the rate of freight originally contracted for, or on a quantum meruit. It is, however, now settled, that if the goods be conveyed safely to their destination, the freight paid shall be that originally con- tracted for. That was decided in Shipton v. Thornton (a), where goods shipped on board the James Scott at Singapore for London, under bills of lading to one Merchant, were, under circumstances of necessity, transhipped at Batavia into the Mountaineer and Sesostris under bills of lading to one EUward or assigns. The goods arrived safe. ElLward indorsed the bills to Merchant, and he received the goods. And it was held that he was liable to the original freight as per James Scott, not to the freight as per James Scott to Batavia only, and then to the rates (which were smaller) as per Mountaineer and " It may be tat en," said the Coui-t, " to be either the duly or the riffht of the shipowner to tranship. If it be the former, it must be so {») The Copenhagen, 1 0. Kob. 289. Ed. Ad. 66. (y) AbbottonShipping, Pt. 4, ch. 9, {a) 9 Ad. & E. 314; Matthews v. s. 11, p. 399, 12tli ed. Giibs, 3 E. & E. 282 ; and Seensdenr. (z) The Forfuna, i C. Rob. 278 ; Wallace, 10 App. Cas. at p. 418. CONTKAOTS OF AFFKEIGHTMENT. 379 in virtue of his original contract ; and it should seem to result from Duties of the a performance by him of that contract, that he will he entitled to shipper. the f uU consideration for which it was entered into, without respect to the particular circumstances attending its fulfilment. If it be the latter, a right to the full freight seems to be implied. The master is at liberty to tranship : but for what pui-pose, except for that of earning his full freight at the rate agi'eed on ? " And the full freight will be due though, in fact, the shipowner has procured them to be conveyed at a less freight than that agreed for in the charter or bill of lading. There was a question incidentally mootedin Shipton v. Thorn- ion{i), on which the language of the judgment is important, viz. : — If the transhipment can only be effected at a higher than the original rate of freight, which party is to stand to the loss ? The opinion of the Court appeared to be, that, in such ease, the master's rif/ht to tranship would be at an end ; but that he WQidd become the freighter's agent to do what was most for his benefit under the circumstances; and that, consequently, if it were for the freighter's advantage that the goods should be for- warded and an increased rate of freight incurred, the freighter would be bound by his agreement to pay such increased rate (/). The effect of the authorities appears to be that the freighter will not be bound unless communication with him was impossible, and unless it was reasonable under the circumstances to forward the goods at the higher freight. Where advance freight has been paid no poi-tion of it iw recoverable (/c), though the goods or ship be lost. Space does not permit stating the other duties of the charterer, but it may be mentioned that if the charterer is required to name a port of delivery he must do so with reasonable diligence. (») Ante, p. 377. freight ? It would seem that he can- (j) See Gibbs v. Grey, 2 H. & N. not: Ibid. 22 ; and see on this Matthews v. Gibis, (k) Byrne v. Schiller, L. E. 6 Ex. ubi sup. ; and Cargo ex Argos, L. E. 5 20, 319 ; Allison v. Bristol Mar. Ins. P. C. 134, at p. 165. Qwace, whether, Co., 1 App. Cas. 209. But see Dii- the captain can charter a larger vessel fourcet v. Bishop, 18 Q. B. D. p. 378. and thus charge the owners for dead 380 MERCANTILE CONTRACTS. Duties of the and will te answeratle -in damages if lie fails (/). The port ° ^PP^''- named must be safe, having regard to the vessel and the cargo (m). The master is not hound to lighten. When, as in Dahl V. Nelson [n) , the charter-party required the vessel to proceed to certain docks, or " so near thereunto as she may safely get," it was held that, in the circumstances, the shipowner had satisfied the obligation by proceeding to the dock gates. The docks being full, the ship could not get a discharging berth, and the dock authorities refused to allow her to enter. " The legal effect of the contract," said Lord Blackburn (o), "in my opinion^ as far as regards the shipowner is, that he binds himself that his ship shall (unless prevented by some of the excepted perils) pro- ceed to the discharging place agreed on in the charter-party. That is, in this case, the Surrey Commercial Docks (which must, I think, -mean inside the docks), with an alternative ' or so near thereto as she may safely get and He always afloat.' The legal effect, as regards the obligation on the merchant, is, I think, that he binds himself, on the ship arriving at the place where it is to dehver, to take the cargo from alongside, and for that pur- pose to provide the proper appliances for taking delivery there. If, as both parties wished and expected, it got to a discharging berth within the dock, the merchant was, by himself, or the dock company as his agents, to provide proper means for landing the cargo on the quay. If the ship may not get safely further than the entrance of the docks, and is entitled to require the merchant to take delivery in the river (which is what, it is said by the plaintiffs, has happened in this case), the merchant must provide lighters or other craft to take the cargo from alongside, unless it is arranged by the pai+ies that, instead, it should go into some other dock." [t] Sieveking v. Xaas, 25 L. J. Q. («) The Alhambra,G'P.'D.%i\ Allen B. 275; Stewart v. Sogerson, L. E. 6 v. Coltart, 11 Q. B. D. 782. C. P. 424. (m) 6 App. Cas. 38. (o) Ibid., at pp. 42, 43. CONTRACTS Ol' AFKREIGHI'MENT. 381 Section V. — General Average. There are two charges which frequently accrue during the prosecution of the adventure, and fall sometimes on the mer- chant, sometimes on the owner, and sometimes on both : these are, general average («) and salvage. Whenever damage or loss is incurred hy any particular part of the ship or cargo, /or the preservation of the rest{t), it is called General Ace rage : that is, the several persons interested in the ship, freight, and cargo, shall contrihute their respective propor- tions to indemnify the owner of the particular part against the damage which has been incurred /or the good of all {u). But the damage must be for the general good, or to avert a common danger (a) ; and, consequently, in order that there may be a general average, the whole adventure, that is, ship and cargo, must have been in jeopardy. The peril, too, must have been imminent. The general average loss need not, however, consist in the actual loss or injury of the subject-matter in respect of General ayerage. («) ' ' In insurance law, the phrase ' general average ' is commonly used to express what is chargeable on aU, ship, cargo, and freight, and particular average, to express a charge against some one thing"; Slaekburn, J., in Singston v. Wendt, 1 Q. B. D. at p. 371. As to particular average, see infra, pp. 438—441. (<) The definition in the text is a curtailed statement of the defini- tion of general average given by Laurence, J., in Birkleij v. Pres- grave, 1 East, 220, which was as follows : • ' All loss which arisesinoon- sequence of extraordinary sacrifices made, or expenses incurred, for the preservation of the ship and cargo, come within general average." Com- pare the following definition by Brett, L. J., in Whitecross Wire Co. v. Savill, 8 Q. B. D. at p. 662 : " If there is an Imminent danger, and if the captain Naorifices part in order to save the rest of the adventure, a claim for a general average contribution arises." And see the remarks of the same learned judge in Si-i-mdenv. Wallace, 13 Q. B. D. 69, p. 72. See as to the general principle, Wilson V. Bank of Victoria, L. E. 2 Q. B. 203; Harrison ir. Bank of Aus- tralia, L. R. 7 Ex. 39 ; Stewart v. West India and Pacific Steamship Co., L. R. 8 Q. B. 88, 362 ; Achard v. Ring, 31 L. T. N. S. 647 ; Strang v. Scott, 14 App. Cas. 601. («) Ba Costa v. Newnham, 2 T. R. 407 ; Williams v. London Assurance Co., 1 M. & S. 318; Price \. A'bWs, 4 Taunt. 123; Oppenheim v. Fry, 3 B. & S. 873 ; 6 B. & S. 348. [x) Job V. Langton, 6 E. & B. 779 ; Si-ensden v. Wallace, 13 Q. B. D. at p. 84. 382 MERCANTILE CONTKACTS. General which average is claimed ; it may he any expense incurred with averag'e, relation to it for the common good, e.g., money paid for salvage services {y), voluntary stranding to avoid total loss (2). In recent times, the chief controversy has heen as to expenses incurred by a vessel putting into a port of refuge. No difficulty arises where the vessel puts in to repair original defects ; expenses so incurred are not the subject of general average. But when the vessel takes refuge to avoid a common peril, the authorities are agreed that the pilotage, towing and other expenses of going in are general average expenses [a). Prob- ably, too, the necessary expenses of coming out are to be so treated, if the vessel put into port owing to a general average act, and if " the going into port, the unloading, warehousing, and reloading of the cargo, and the coming out of port," were parts of one operation for the common safety {I). The dis- charge of the cargo in the port of refuge, if reasonable, having regard to the safety of the ship, will form a general average expenditure (e). According to the decision of the House of Lords in Svensden v. Wallace (/), the expense of reloading after the repairs are efEected is not the subject of a general average, though the cargo was reasonably and properly, for the safety , of the ship, discharged (gr). It is to be observed that, in that case, the original damage, to repair -svhich the vessel put (y) Anderson v. Ocean SS. Co., 10 {a) Atwood v. Sellar, 5 Q.B. I). 2S6; App. Cas. 107. In Soyal Mail Steam Svensden v. TFallace, 10 App. Cas. 404. Packet Co. v. English Bank of Bio de (J) Atwood y. Sellar, supra. But Janeiro, 19 Q. B. D. 362, tlie question see Svensden v. Wallace, 13 Q. B. D. was whether specie, part of the cargo 69 (Lord Esher, M. R., JBowen, L. J. ; of a vessel, was subject to average con- diss., Baggallay, L. J.), tribution in these circumstances : the («) Svensden v. Wallace, 10 App. Cas. vessel ran agrovmd and the specie was 404. landed ; afterwards the master jetti- (/) 10 App. Cas. 404. soned part of the cargo, and she was {jg) Lord Blachhurn's reason appears enabled to complete her voyage. Held, to be that the captain might have that the specie was not liable to con- transhipped, in which case the ex- tribute, penses would have been chargeable to («) Barnard v. Adams, 10 How. U. S. freight, and that if he waits until the 270 ; Whitecross Wire Co. v. Savill, 8 original ship is repaired he ought to Q. B. D. 653 (pumping water into be in no better position, hold to extinguish Are). CONTllACTS OF AFFREIGHTMENT. into port, was accidental, and not the sutject of general average. The loss or expense must have been voluntarily incurred; there must he some sacrifice. The cutting or casting away of something which must be lost by reason of its state, even if the whole adventure be saved, gives no claim to contribution {h) . Masts and sails destroyed in consequence of carrying an unusual press of canvas, are not subjects of general average (i), though if so cut away and abandoned for the preservation of the ship, they are (k). Nor will the ordinary use of the vessel's tackle, engines, &c., be matter of general average. If a ship be obliged to put into port to repair damage, and the master be compelled to hypothecate or sell a part of the cargo to enable him to effect the repairs and prosecute the voyage for the common benefit, the value of that does not form a subject for general average (/); it is not enough that the voyage is impeded; the ship and cargo must be im- perilled. It is not settled whether, if a ship be obliged to go into port for necessary repairs, for acts the subject of general average, the wages of the seamen during the delay are subject of average (»«). According to the majority of English authorities, Hall v. Jnnson [n) being the chief exception, general average includes, not all expenses necessary to bring the voyage and common adventure to a successful issue, but only sacrifices and expenditures for the common safety of vessel and cargo (o). The injury done to a ship, the ammunition lost, or the expense of healing sailors woimded in action with the enemy, is not reimbursed, according to our law, by a general average (^j). (A) Shepherd v. Eottgen, 2 C. P. T>. v. Chapman, 2 H. L. Cas. 696. 686. Compare Corrij v. Coulthard, (m) Power t. TThitmore, supra. See, cited 2 C. P. D. at p. 683. Atwoodv. Sellar, 5 Q. B. D. at p. 291 ; (») Covington v. Roberls, 2 B. & P. Svensden v. Wallace, 13 Q. B. D. 69. N. E. 378 ; Power v. JThitmore, 4 M. («) 4 E. & B. 500. & S. 141. Compare iJo4t«so« v. Piicc, (o) Per Boiven, L. J., in Svensden 2 Q. B. D. 295. v. Wallace, 13 Q. B. D. at p. 85. (k) Birkley v. Presgrave, 1 East, 220. (jo) Tayloi- v. Curtis, 2 Marsh. 309 ; [t) Hallelt T. Wigram, 9 C. B. 580 ; 6 Taunt. 608. Benson v. Dimcan, 3Exoh. 644 ; Benson 383 General average. average, 384 MERCANTILE CONTRACTS. General The owners of deck cargo, If jettisoned, are not entitled to average contribution, unless such cargo is permitted to be carried according to an established custom, or by the consent of the other owners of cargo {q). Nor are wrongdoers whose default led to the jettison so entitled (qq). It is no answer to a claim on a general average bond or an average contribution that the ship was unseaworthy. But if the loss was occasioned by the unseaworthiness, it would be a defence (r). Speaking generally, " property," says Wills, J., in Royal Mail Steam Packet Company v. English Bank of Rio de Janeiro (s), " whether ultimately saved or jettisoned., actually at risk at any- time during which the operation causing loss has been going on (comprehending under that phrase all such acts as may be properly considered as forming together one whole), is liable to contribution; provided that in consequence of that operation the whole adventure be preserved from destruction ; because, if it was not at risk during any part of that time, no adventure of which it formed one of the constituents was saved by the operation." But there are exceptions. Only those objects of value which fall under the denomination of merces are liable, and which pay freight. Hence provisions are exempt (t), as is the wearing apparel of passengers. The owners contribute according to the clear value of ship and freight (m) at the end of the voyage, after deducting the expense thereof. Cargo stowed on deck, though not entitled to contribution if jettisoned, contributes even where by the bill of lading goods are so carried "at merchant's risk" (x). [q) Wright v. Marwood, 7 Q. B. D. 14 App, Oas. 601. 62; Soyal Exchange Shipping Co. v. (?■) &Afo«« v. J?mo<, 14C.B.N.S. 59. Dixon, 12 App. Cas. U; Gould v. (s) 19 Q. B. D. 362, at p. 372. Oliver, 4 Bing. N. C. 134 ; Miluiard v. (() Brown v. Stapyleton, 4 Bing. 119. mhbert, 3 Q. B. 120; Strang, Steel ^ (m) But not in respect of jEreight Co. T. Scott ^ Co., 14 App. Oas. at paid in advance: Frayes v. Worms, p. 609. As to what words in a charter- 19 C. B. N. S. 169, See Byrne v. party or bill of lading will exclude Schiller, L. E. 6 Ex. 20, 319. The liability for general average, see charterer must contribute for that. Burton v. English, 12 Q. B. D. 218. (x) Burton v. English, L. E. 12 {qq) Strang, Steel § Co. v. Seott $ Co., Q,. B. D. 218. CONTRACTS OF AFFREIGHTMENT. 385 Mariners do not contribute for their wages, save in the instance General of the ransom of the ship (is). — average. — A consignee not owner of the goods at the time the average sacrifice was made is not bound to contribute (a), unless he took delivery under a bill of lading which expressed, or under circumstances which implied, a contract to pay. An owner of goods entitled to average contribution may sue other cargo owners for contribution (b). As to the time and place of adjusting : — Where the voyage has been completed, or the adventure has been frustrated, all in- terests or goods which were at risk when the sacrifice or expen- diture was made, contribute, and receive contributions, according to their value at the place ; goods, for example, are valued, both for the purpose of contributing and receiving contribution, at the market prices at the place of adjustment. The value of the ship is taken at the place of adjustment before any repairs are effected (c). Where new work has been done, or materials supplied to the ship, the general rule is to deduct one-third of the actual cost of repairs, renewals, and materials. No deduc- tions are made when perfectly new materials, such as ropes or sails, have been lost or sacrificed ; nor for the value of anchors, provisions, &c., which do not deteriorate. Only one-sixth is deducted for the cost of new chain cables (d). Goods sold at an intermediate port in the course of the voyage contribute in respect of the benefit which they have derived from the sacrifice (e). As to goods jettisoned : — "If the goods jettisoned," said Bovill, C. J., in Fletcher v. Alexander (/), " were in such a condition that they would in all probability have arrived undamaged at the place of adjustment, I see no reason why their value at the time of the jettison should [z) See 27 & 28 Viot. o. 26, s. 45. 735, p. 762 ; Titman v. Universal Mar. {a) Scaife v. ToUn, 3 B. & Ad. 623 ; Ins. Co., 9 Q. B. D. 192 ; Carver, 407 ; Eingston v. Wendt, 1 Q. B. D. 367. Lowndes, 187. See p. 474, infra. («) Lobson V. Wihm, 3 Camp. (e) Mill v. Wilson, 4 C. P. D. 329. 480. (/) L. R. 3 C. P. 375, at pp. 383, (c) 2 Amould, 903 ; Lowndes, 192. 385 ; Lloyd v. Guibert, L. K. 1 Q. B. (rf) Aitchison v. lohre, 4 App. Cas. 115. S. — VOL. I. C C 886 MERCANTILE CONTKACtS. General not be taken .... On the other hand, it may he that if they had average. j^^^ been thro-wn overboard they would not in all probability have arrived at their destination in a sound or saleable condition .... The value for the purpose of contribution to general average must be taken to be what it would realize in such damaged state." The practice is, to make an accomit of the articles that are to contribute, in which the property sacrificed is included, otherwise its owners would receive its value without paying towards the loss. Another account is made of the losses to be replaced : the average is then commonly adjusted by the brokers, and paid by the insurers (g) of the different parties chargeable ; and, if there be any dispute, it may be recovered by action (h). There is a lien for general average when due by the cargo («), but the owners of the cargo have no lien for it on the ship (/). This law of general average is of extreme antiquity, being confessedly derived from that passage in the Ehodian Code preserved by Justinian : — " Lege Ehodi^ oavetur, ut, si levandse navis gratis, jactus mercium factus sit, omnium contributione sarciatur quod pro omnibus datum est." It is scarcely necessary to point out the reasonableness of this regulation. ' ' When the ship, ' ' writes Lord Tenter den, " is in danger of perishing from the violent agitation of the wind, or from the quantity of water that may have forced a way into it, or is labouring oil a rock or a shallow, upon which it may have been driven by a tempest,' or when a pirate or an enemy pursues, gains ground, and is ready to over- take it, no measure that may facilitate the motion and passage of the ship can be really injurious to any one who is interested in the welfare of any part of the adventure, and every such measure may be beneficial to almost all. In such emergencies, therefore, -v^hen {g) See Dickenson v. Jardine, L. E. T^eroxix. ,XempY.MaUiday,'L.'R.lQ,.'B. 3 C. P. 639; Stewart v. W. India ^ 520; Crooks v. Allan, 6 Q. B. D. '«> S. S. Co., L. B. 8 Q. B..362. Lord &her, M. E., in Suth v. Zatn- (A) Sir/cletj y. Presgrave, 1 East, port, 16 Q. B. D. 735, at p. 736. 220 ; Dobson v. Wilson, 3 Camp. 480; {j) The North Star, 29 L. J. Adip. Sheppardy. Wright, S\Q-weic,V.C.2i. 73; 1 Lush. 46; Croska v. AlUn, («) See Lord Tenterden'i judgment, 5 Q. B. D. 38. : Scaife v. Tobin, 3 B. & Ad. at p. 528 ; CONTRACTS OF AFFREIGHTMENT. 387 the mind of the brave is appalled, it is lawful to have recourse to General -*■ ^ average, every mode of preservation, and to cast out the goods in order to lighten the ship, for the sake of all. But if the ship and the resi- due of the cargo be saved from the peril by the voluntary destruc- tion or abandonment of part of the goods, equity requires that the safety of some should not be purchased at the expense of others, and therefore all must contribute to the loss" (i). The jurists of the middle ages sought to fritter away this ixseful law, by prescribing various, and sometimes intricate, forms to be observed on the occasion of the jettison. But, as Lord Tenterden has remarked, "The regulations prescribed by persons at ease in the closet or senate-house will seldom be followed at the moment when life or liberty is in jeopardy — at such a moment every one present will exclaim, with the friend of Juvenal : — ' Fundite qnse mea sunt — etiam pulcherrima.' And, provided that the jettison have been the effect of danger and the cause of safety, all writers agree that contribution ought to be made, although the forms have not been complied with "(A). Indeed Emerigon, to whom his Lordship refers, cites a remark of Parga, who says, that during sixty years' experience as a Genoese magistrate, he had met with but five instances of regular jettison, all of which were suspected of fraud, because the forms had been too accurately observed. The following tables show what matters may, according to the recent cases, be the subject of general average contribu- tion : — General Average Contribution. What allowed. April, 1877. Spars and cargo consumed as fuel for an engine (C. A.) used' in pumping where the ship springs a leak in consequence of heavy weather. {Robinson v. Price, 2 Q. B. D. 295.) March, 1882. Damage to cargo by water used to extinguish fire. (C. A.) {The Whitecross Wire Co. v. Savill, 8 Q. B. D, 653.) (t) Abbott, 12th ed. pp. 499—503. {h) Abbott, 12th ed. p. 603. cc2 388 MERCANTILE CONTRACTS. General Bec. 1879. Goods injured by water to extinguisli fire, even average. though there be a clause in the bill of lading that the shipowner is not to be liable to any damage to goods capable of being covered by insurance. {Crooks v. Allan, 5 Q. B. D. 38.) April, 1881. Loss of freight arising from cargo damaged by water used to extinguish fire. {Pirie v. Middle Dock Co., 44 L. T. N. S. 426.) Dec. 1883. Deck cargo of timber carried at full freight, but (C. A.) " at merchant's risk," if cargo be carried on deck by custom, and jettisoned. {Burton v. English, 12 Q. B. D. 218.) What riot allowed. May, 1878. Salvage expenses incurred merely in the ship- owner's own interest. {Schuster v. Fletcher, 3 Q. B. D. 418.) Expenses incurred in the identification of goods mixed during voyage. {Ibid.) Expenses of sale of unidentified goods. {Ibid.) Nov. 1877. Cutting away a mast where-the mast is a wreck (0. A.) and valueless when cut away, and must have been lost in any event. {Shepherd v. Kottgen, 2 0. P. D. 585.) May, 1881. Deck cargo where there is no custom to carry deck (0. A.) cargo, and where it is not a coasting voyage. ( Wright V. Marwood, 7 Q. B. D. 62.) PORT OF REFUGE EXPENSES. Where the Original Damage was a Subject of General Average ; e. g., the Cutting Away of a Mast. Towage, Pilotage, and Port Dues inwards — admitted as General Average {I). Expenses of unloading the Cargo — admitted as General Average (/). Expenses of warehousing Cargo — admitted as General Average (m). Expenses of reloading Cargo — admitted as General Average (m). Pilotage and Port Dues outwards — admitted as General Average {m). Where the Original Damage was a Subject of Particular Average ; e. g., a Dangerous Leah caused by a Tempest. Towage, Pilotage, and Port Dues inwards — admitted as General Average («). 9) AtwoodY. Sellar, 5 Q. B. D. 286 ; Svensdm v. Wallace, 10 App. Cas. 404. Svensden v. Wallace, 13 Q. B. D., pp. (») Svensden v. Wallace, 10 App. 76, 87. Cas. 404, p. 412. (w) Atwoody. iSellcer,enpia,; but see CONTRACTS 01' AFFREIGHTMENT. 389 Expenses of unloading the Cargo— admitted as General Average (gi). General Expenses of reloading Cargo — ^not admitted as General Average (A). average. Pilotage and Port Dues outwards — not admitted as General Average (A). Section VI. — Salvage. Salvage is defined to be a compensation to be made by the shipowner or merchant, to other persons, by whose assistance the ship or its lading may be saved from impending peril, or recovered after actual loss («). The policy, as well as justice, of awarding such a compensation is so obvious, that it has been in all ages allowed by the codes of all civilized nations. Salvage may become due upon rescue (Ji), either from the perils of the sea, or from the hands of enemies (/). The property in respect of which salvage is claimed must be salved or saved {m). Even when there is a request and an agreement, the presumption is to hold that nothing is due unless something more than life is saved («). Though there need not be actual or imminent danger to found a claim for salvage, there must be the possibility of destruction if the services are not performed (o). Towage, as a rule, gives no such claim; and the seamen or crew of a vessel, whose duty is to do the best they can, are not, in ordinary cir- cumstances, entitled to it. But a tug engaged to tow, or a pilot, or even seamen, may be entitled to salvage if unforeseen perils arise and unusual services are performed. The test, as stated in one case in which pilots claimed salvage, is, " Were the acts of the pilots, by reason of the weather and the position of the ship, made so different in danger or responsibility from the ordinary acts of service of pilots, as that no fair and reasonable owner would have insisted on requiring such service for other than Salvage. (y) Svenaden v.' Wallace, 10 App. Cas. 404, p. 4T2. (A) Sven$den v. Wallace, 10 App. Cas. 404, at p. 416. (i) Adopted by Lindley, L. J., in The City of Chester, 9 P. D. 182, at p. 201 ; Abb. Shipp. 12tli ed. p. 536. See The Chetah, L. E. 2 P. C. 205. In Raft of Timber, 2 W. Rob. 231, timber was salvaged. (*) The Ed. Httwkim, 31 L. J. Adm. 46. {I) 13 & 14 Vict. 0. 26 ; 27 & 28 Vict. c. 25, ss. 40, 41. (m) The Killeena, 6 P. D. 193 ; The Eenpor, 8 P. D. 115. («) The remarks in The Renpor, supra, seem, irreconcilable with the judgment in The Undaunted, Lush. 90. (o) Dr. Lushington in The Charlotte, 3 TV. Rob. at p. 71 ; approved in The Strathnaver, 1 App. Cas. 58. 390 . MERCANTILE CONTRACTS. salvage reward ?"(i?). If a contract for specified and agreed salvage services — e, g., to take the vessel to a particular port — cannot be performed by reason of supervening circumstances, such as the coming on of a hurricane, the salvors may recover for salvage services actually rendered {pp). There is no distinction between river and sea salvs(ge {q). Originally salvage was not due for saving life without property. This, however, has been altered by statute {r). When the rescue is from dangers of the sea, the salvor or rescuer has a lien on the goods preserved (s), and formerly might have kept them till a recompense had been made to him {t) ; but now, when the salvage of wreck occurs in the United Kingdom (m), they are to be delivered to, and taken charge of by, the receiver appointed by the Board of Trade, who may detain («) them until satisfaction is made of the salvage, or security has been given by the owner for its payment. The amount of this recompense might, too, if the parties, did not agree, have been ascertained by a jury in an action brought by the salvor against the owner of the goods, or by the owner of the goods (having first tendered what he thought sufficient) against the salvor {y). In most cases, the Admiralty Division will, on suit brought, fix the amount of salvage to be paid, and take care of the T^TOj^evty pendente lite (s). If the parties have made an agreement as to salvage, the Court will enforce it, unless {p) Ackerbkmv. Price, TQ.B.D. 129, 443, 450, 468. The Zeta, L. K. 4 Ad. at p. 133. 460. As to the course to be pursued {pp) The Westbourne, 14 P. D. 132. in case of salvage by Her Majesty's (y) Vivian v. Mersey Docks Board, ships abroad, see 17 & 18 Vict. o. 104, L. R. 6 0. P. at p. 28, per Willes, J. bs. 486 et seq. (r) 17 & 18 Vict. 0. 104, s. 458, and {x) 17 & 18 Vict. c. 104, s. 468 ; 24 & 25 Vict. c. 10, s. 9 ; Cargo ex and in case of wreck, unless this be Schiller, 2 P. D. 146; Brett, L. J., done, the right to salvage mil be in Adcerblom v. Price, 1 Q. B. D. at forfeited, p. 133. (y) Abb. Shipp. 12th ed. 537 ; but («) And so has the shipowner who now see 17 & 18 Vict. o. 104, s. 460. pays salvage: Briggsir. The Merchant (2) 17 jfe 18 Vict. o. 104, ss. 460, Traders' Association, 13 Q. B. 167; 468,476; 24 & 25 Vict. c. lO; See Bingston v. Wendt, L. R. 1 Q. B. D. The Jtasche, L. R. 4 Ad. 127. As to at p. 373. the limit of the amount it will award, (<) Bartfort v. Jones, 1 Ld. Raym. see Gore v. Bethel, 12 Moore, P. C. 393 ; Baring v. Bay, 8 East, 57. Ca. 189. (m) 17 & 18 Vict. 0. 104, ss. 441, CONTRACTS OF AFFREIGHTMENT. 391 manifestly unf aii ; but if the agreement be such, the Court will Salvage, decree what remuneration, having regard to the value of the property sold and the nature of the services, is reasonable (a). The powers of the Court may, under the County Courts Admi- ralty Jurisdiction Act (6), be conferred on a county court in all cases where the value of the property saved does not exceed 1,000/., or the amount claimed does not exceed 300/., or the parties agree in writing that the Court shall have juris- diction. Besides these jurisdictions, a tribunal for the summary ad- justment of salvage in certain cases has from time to time been provided by several statutes (c). By the Acts now in force, upon any dispute arising as to the amount of salvage within the United Kingdom wbioh the parties cannot agree to settle, if the sum claimed does not exceed 200/., or upon such a dispute, whether the services were rendered in the United Kingdom or not, where the value of the property saved does not exceed 1,000/. («/), it shall be referred to two justices, in the case of wreck, resident near where it is found, or, in the case of services to any ship or boat, or her cargo, &c., resident near the place where she is lying, or into which she is first brought after the accident, or to any stipendiary magistrate or county court judge. If the sum claimed exceed 200/., the dispute may be referred to two justices, if the parties consent ; if not, it is to be decided by the High Court, upon the application of either the salvors or owners. But if the claimants do not recover more than 200/. they wiU. not recover costs, unless the Court certifies that it was a fit ease for the Superior Court. If it be referred to two justices, they may (e) call in a person conversant with maritime affairs as assessor, or, whether they differ or not, appoint such a person sole umpire to decide the matter, and they, or he, will (a) AoTterllom v. :Pr%ee, 7 Q. B. D. 26 Gf«o. 2, c. 19 (repealed) ; 49 Geo. 3, 129; The Silesia, 5 P. D. 177.- See o. 122 (repealed); 53 Geo. 3, o. 87 also Anderson v. Ocean Stfam Ship Co., (repealed) ; 1 & 2 Geo. 4, oo. 75 (re- 10 App. Cas. 107, as to power of pealed) and 76. See 17 & 18 Vict. u. master to bind cargo owners by a 120, s. 4 ; 9 & 10 Vict. c. 99, o. 21 salvage agreement. (repealed). («) 31 & 32 Vict. 0. 71, ss. 1, 2, 3 ; (d) 25 & 26 Vict. o. 63, o. 49. The Glmnihanta, 2 P. D. 45. (e) 17 & 18 Vict. c. 104, ». 461. ' (c) 12 Ann. stat. 2, c. 18 (repealed) ; 392 MERCANTILE CONTKAOTS. Salvage, have perfect discretion as to the costs (/). Against any award thus made there is an appeal to the High Court, where the sum in dispute exceeds 50/. {g). These regulations do not apply to the Cinque Ports {h), where a summary jurisdiction is, however, provided by stat. 1 & 2 Geo. 4, c. 76 (f). When ship, cargo, and freight are benefited by salvage ser- vices, all are bound to contribute (/). Passengers' wearing apparel and their personal effects are not liable to contri- bution {k). With respect to salvage from enemies, the law formerly was, that where a ship was taken and re-taken before the captor had conducted her infra prwsidia, or, at all events, before he had obtained a sentence of condemnation against her, the original owner had a right to her again on paying salvage to the re- captors. But, if not re-taken till a later period, she was deemed to have become the absolute property of the captors, and consequently the lawful prize of the re-captors ; the original owner's possibility of reinstatement, or his right of postliminium, being considered extinguished by the carriage infra prcesidia, or sentence of condemnation (l). This rule was, however, altered by the Legislature in favour of the original owner of the cap- tured property, who is now entitled to have it again on pay- ment of salvage of one-eighth, no matter at what period the re-capture may have taken place (m) ; and the benefit of this alteration is extended to the allies of Great Britain, whose vessels have been captured by the enemy and re-captured by British ships, unless, indeed, it appear that those allies them- selves act towards British property on a less liberal principle ; for, in that case, our Courts adopt their rule, and mete to them according to their own measure of justice (n). if) 17 & 18 Vict. u. 104, s. 462. N. S. 61. iff) Id. 8. 464. The Generous, L. B. (A) The WilUm III., L. E. 3 A. & 2 A. & E. 67. B. 487. See Lowndes on General (h) Id. 8. 460. Average, 3rd ed., 212. (j) And see 9 & 10 Vict. o. 99, s. 42, (Z) See case of Z'Actif, 1 Edw. 185. and 9 Geo. 4, o. 37. With regard to (m) 27 & 28 Viot. o. 25, s. 40, which appeals in such oases, see 3 & 4 Viot. relates to the ships or goods helongiag u. 65, 8. 5 ; and as to small salvage to Her Majesty's subjects, claims, see 25 & 26 Viot. u. 63. («) iSir W. Scott's judgment in The U) The Fusilier, 3 Moo. P. C. C. iSanta Cruz, 1 0. Bob. 63 ; "Wheaton's CONTKACTS OF AFFREIGHIMENT. 393 The amount of salvage on re-capture has at various times Salvage, been variously regulated by statute. In 1793, it was fixed at one-eighth for the Royal Navy, and one-sixth for private ships (o) . By the Naval Prize Act, 1854 (27 & 28 Vict. c. 25), s. 40, the rate of salvage is fixed at one-eighth of the value. But the Prize Court may, when the re-capture has been effected under oiroumstanoes of special difficulty or danger, award a larger proportion, not exceeding one-fourth. International Law, edited by Law- (o) 33 Geo. 3, o. 66. lenoe, 663. 394 CHAPTEE IV. MAEITIME INSUKANCE. Sect. 1. Definition and Nature of the Contract. 2. The Parties, or who may he Insurers and Insured. 3. Subject-matter, or what may be Insured. ■ 4. The Policy. 5. Results of Contract. 6. Proceedings on the Contract. Section I. — Definition and Nature of the Contract. Definition INSURANCE is a Contract by which one person, ia consideration and nature of . -, , , .,.« ,-, . , the contract. 01 a premium, undertakes to indemnity another against a par- ticular loss (a). The object of the contract ia marine and foe insurances is that, in case of loss, the person insured shall be fully iademnified, but no more. Contracts of Hfe insurance, however, are, as we shall see here- after, not contracts of indemnity (b) ; they are contracts to pay a specified sum in a certain event. Even contracts of mariae insurance are not always contracts of perfect indemnity; the assured may recover more or less than the sum which would actually compensate him (c). Thus, under a valued policy, that is, where the value of the thing insured has been agreed on between the parties, if there has been a total loss of the thing insured, the assured, who has an insurable interest, recovers, ia the absence of fraud, the sum agreed upon, which may be in {«) 2 Bl. Com. 458 ; and Bee Sreti, 287 ; Aitehison v. Lohre, 4 App. Gas. L. J., in Castellainy. Freston, 11 Q. B. 765, at p. 761 ; Marine Insurance Go. v. D. at p. 386. China Transpacifie Co., 11 App. Cae. (i) See p. 493, infra. 673. See Lord EersehelPs remarks at (c) Irving v. Manning, 1 H. L. C. p. 588. MARITIME INSURANCE. 395 excess of the true value of tlie thing lost(c). On the other Definition hand, the value of the thing lost may be in excess of the agreed the oontraot. value, yet the assured does not recover more than the sum in respect of which he paid a premium. It is an implied term in a contract of marine insurance that, in case the assured repair the damage to a ship of a certain age and character, the loss shall be estimated at two-thirds of the cost of the repairs, neither more nor less. It is evident that this can seldom be the accurate measure of the loss. Subject to these qualifications the founda- tion of insurance law is that, in marine and fire insurances, the assured, in case of a loss against which the insurance is made, shall be fuUy indemnified, but shall never be more than fully indemnified («f). The instrument in which the contract of insurance is set forth is called the policy. The pajrty who undertakes to indemnify is called the insurer, and, having subscribed the policy,, the tindenvrifer. The party indemnified is termed the insured or assured. The subject-matter of insurance is very extensive, since any description of interest may be insured against any species of danger ; save only where the contract would be opposed to the common law, or to some statute (e). The three principal species of insurance, which wiU alone be taken notice of in this Treatise, are — 1. Maritime insurance ; 2. Insurance on Lives ; 3. Insurance against Loss by Fire. Maritime Insurance takes place when a merchant gives a premium to others to assure his ship or goods, from one port or place to some other port or place, on such terms as they agree to. Usually, there are several underwriters to each policy of marine insurance, each making himself responsible for a part only of the amount for which the insurance is effected. If the ship or goods, &c., perish, or are lost in whole or in part, every subscriber is to make a recompense either to the extent of his subscription, or^n-o ratd in proportion thereto, "whereby," says (c) See pp. 409, 410, infra. «ase was decided, viz., 16 & 17 Vict. (rf) Per Brett, L. J., in Caatellain v. c. 107, ss. 170, 171, 172, which forbade Fre^ton, nbi supra. the loading of timber on deck, has (e) Wilson v. Rankin, L. R. 1 Q. B. since been repealed. 162. The statute upon which this 396 , MERCANTILE CONTRACTS. Definition the statute 43 Eliz. c. 12 (/), " on the loss or perishing of any the contract. 8^P> there foUoweth not the undoing of any man, but the loss ' lighteth rather easily on many than heavily upon a few." Thus, if an insurance effected for 1,000/. be subscribed by five underwriters for 200/. each, in the event of a loss to the full amount of 1,000/. each underwriter pays 200/. only ; if the loss be only-partial, for instance, to the extent of 250/. only, each underwriter pays 50/. only. This contract, which was introduced into England by the Italians [g], appeared of so much importance to the legislature in the reign of Elizabeth, that, by the statute 43 of that Queen, c. 12 (/), the Chancellor was empowered to issue a commission, appointing the Eecorder of London, the Judge of the Admiralty, two doctors of the civil law, two common lawyers, and three merchants, to form a court, of whom three were to be a quorum, who were to adjudicate on all controversies arising out of policies. But this jurisdiction, proving defective in many respects, soon fell into disuse, especially after it had been decided by the Court of Upper Bench, in Came v. Moye (h), that a judgment in the Court of Policies in the defendant's favour was no bar to a ' subsequent action against him for the same cause. Insurance is always considered a contract uberrimce fidei, and receives a liberal construction (»), for the benefit of trade and of the assured. Section II. — The Parties to a Contract of Insurance. The partleu to At common law, any individual, partnership, or corporation, insurance. might have become insurers. By stat. 6. Geo. 1, o. 18, the King was empowered to erect two chartered companies, viz., the Eoyal Exchange Assurance and London Assurance Companies, for insuring ships, and lending money on bottomry; and by the (/) Eepealed by Statute Law Re- {h) 2 Sid. 121. vision Act, 1863. (i) 2 Wms. Saimd. 200, in notis. (g) As to its history, see Malynes See Slackbum, Low, and Co. v. Vigors, Lex Mercatoria, 106. 12 App. Cas. 531. MARITIME INSURANCE, 307 12th seotion of that Act, a monopoly was conferred upon them, The parties to as against all, excepting individual underwriters (h) ; of which, insojanoe. ° however, they have since heen deprived, and the common law ' on this suhject is restored, by stat. 5 Greo. 4, c. 114 (/). Policies are often issued by mutual insurances or clubs. If composed of more than twenty members, they must be registered under the Companies Acts, and policies issued by them must conform to the requirements of 30 & 31 Vict. c. 23, s. 7 {m). Any person, whether British or alien, may, generally speat- ing, be insured. No policy, however, can be effected, nor action maintained, by or on behalf of an alien enemy during war (w) ; unless, indeed, his ship be protected by the royal licence, in which case any person who effected the insurance as his trustee may sue(o). A neutral part-owner of goods, the residue of which belongs to one who, before the action, though subsequently to the loss, became an enemy, may sue on an insurance of his own share {p). Whether a person is an alien enemy depends upon his domi- cile {q). An English subject living and trading under the protec- tion and for the benefit of a foreign state, is looked on, if that state be hostile, as an enemy ; if it be neutral, as a neutral (r). But it does not follow, that because a British or neutral merchant happens to be resident in an enemy's country, goods to be delivered for him at a neutral or friendly port are, on that accoimt, uninsurable (s). Nor does the military occupation of a country by our enemies, ipso facto, constitute the natives of that (i) Clifford's History of Private Bill (o) Kensington v. Inglis, 8 East, 273 ; Legislation, vol. 2, pp. 671 et seq. recognised Flindt v. Waters, 15 East, [1) Almost all the poKoies effected in 260. London by individual underwriters are {p) Rotch v. Edie, 6 T. E. 413. See effected with members of "Lloyd's," the remarks on that case in the notes to who are now incorporated and regu- Bromley v. Hesseltine, 1 Camp. 75. lated by 34 Vict. c. xxi. (?) The Indian Chief, 3 C. Rob. 12 ; (»i) Post, p. 408 ; In re Arthur 1 PhiUips' Law of Insurance, a. 153. Average Association, L. E. 10 Ch. 542 ; {r) M'Connell v. Sector, 3 B. & P. Marine Mutual Ins. Association v. 113; Willison v. Patteson, 7 Tavmt. Younj, 43 L. T. 441. 439 ; The Gerasimo, 11 Moo. P. C. C. (») Brandon v. Msbitt, 6 T. R. 23 ; 88. Bristow V. Towers, 6 T. E. 36. See (s) Bromley v. Sesseltine, 1 Camp. 75. Flindt V. JFaters, 15 East, 260. 398 MERCANTILE CONTRACTS. The pities to cOTintrv also enemies (^). There must be some public actindi- a contract of ,. o i . . ■ jn j -j insurance. cative 01 the mtention to conquer or acquire the territory. Under the head of Parties, it seems proper to remark, that subscriptions to a policy are almost always procured by a Broker (m) , concerning whom the practice is, that the under- writers, to whom, in most instances, the insured are unknown, look to the broker for the payment of the premium, and he to the insured. The latter pay the premiums to the broker only, and he is a middle-man between the insured and underwriter. But he is not solely an agent; he is a principal to receive the money from the insured, and pay it -to the underwriter [x). Th« mode in which this payment, and the payment made to the insured in case of loss, is usually efEeeted, is described ia Stewart T. Aherdeinij/), Sweeting v. Pearce{^, Beokwith v. Bullen{a), and XenosT. Wichham {])).. "The broker now keeps two accounts with underwriter^, called the 'credit account' and. the 'cash account.' Till within a few years, only one account was kept, which ■was, that now called the credit account. When the slip for any particular poUoy is signed, it is arranged between the broJier and underwriter whetljer the premium is to go into the 'credit account,' or the ' cash account.' In either case the broker becomes debtor to the underwriter for the premium at once; but the time and manner of the payment are different in the two cases. If the premium goes into the ' credit account,' it is not payable till the end of the year. If, before the end of the year, any claim, arising on one of the policies in, the credit account is adjusted by thebroker and underwriter, the broker on the adjustment has credit in the account against the under- (t) Hagedom v. Bell, 1 M. & S. 450 ; Turpin v. Bilton, 5 M. & G. 466 ; V. B., 11 Moo. P. 0. C. 141 ; Smith v. Frice, 2 F. & F. 748 ; SuneU The Gerasimo, supra. V. Ballard, 3 F. & F. 445.: («) In the absence of any precise [x) Fower v. Butaher, 10 B, & 0. instructions, it is the duty of the 329. See a very dear esplanation of broker to procure the policy to be this doctrine by' Lord Mlenbirough, made and to obtain it from the insurers C. J., in his judgment in Jenkim v. ■withiii a reasonable time ; and he will Power, 6 M. & S. 282. be liable in an action for an omission [y) 4 M. & W. 211. See ante, p. to do this. If he seeks to excuse him- 1'55. '• seU bnthe ground of the impossibility (k) 7 C. B. N. S. 449 ; 9 ibid. 534. of finding persons willing to under- («) 8 El. & Bl. 683. take the risk, or any other justifiable (i) 14 0. B. N. S. 436. ground, he must set that up. See MAKITIME INSUKANCE. 399 writer for tie amount of the loss thus adjusted, if the aocountis The parties to ,,, ,, ,0.1 1 . •11 .1 a contract of good for that amount; and at the end of the year, and not till then, inguranoe. the balance on the account, and the balance only, is due in (5ash from the broker to the underwriter, under a discount of 12 per cent. If the premium, instead of going into the credit account, goes into the cash account, the custom is the same, except that the account is settled and the balance is due in cash at the end of each month instead of the end of the year, and the balance is paid under a small discount." Such is the accoimt of the practice in Beckuith v. Bulkn (d). Section III. — The Subject-matter, or what may be Insured. At common law, an interest on the part of the insured in the The subject- subject-matter of the insurance was not absolutely requisite, and ^hat may be might have been dispensed with by a policy containing the '"""^ ' words iiitercst or no interest; though, in the absence of such words, it was understood to exist, and must have been proved (e). But by stat. 19 Geo. 2, o. 37, s, I, it is enacted that "No assurance or assurances shall be made by any person or persons, bodies corporate or politick, on any ship or ships belonging to his Majesty or any of his subjects, or on any goods, merchandises, or effects laden or to be laden on board any such ship or ships, interest or no interest, or without further proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer, and every such assurance shall be nuU and void to all intents and purposes." By sect. 2, however, " assurance on private ships of war, fitted out by any of his Majesty's subjects solely to cruise against his Majesty's enemies, may be made by or for the owners thereof, interest or no interest, free of average, and with- out benefit of salvage to the assurer;" and by sect. 3, any merchandises or effects from any ports or places in Europe or America, in possession of the crowns of Spain or Portugal, may {d) 8 E. & B., at p. 686. at p. 101, per Chamhre, J. ; Saddlers' («) See Cousins v. Nmtes, 3 Taunt. Co. v. JBadooek, 2 Atk. at p. 556, per .513 ; Ztiema v. Crauford, 3 B. & P. Lord Hardviicke. 400 MERCANTILK CONTRACTS. The Bubjeot- matter, or what may be insured. be insured in the -saine manner as if this Act had not been made. It will be observed that, in consequence of the words printed in italics, foreign ships are not within the statute (/). A policy not conforming to this st&,tute is called a Wager Policy, and is void {g). In the recent case of Berridge v. Man On Insurance Co. (A), a policy insxiring cash advances on a ship, containing the term "fuU interest admitted," was held to be avoided by the statute. , Its operation is not limited to policies upon " ships, goods, merchandises, and effects." Wherever the subject-matter of a policy is such that, if ships, goods, merchan- dises, or effects at risk are lost, the subject-matter of the pohcy will be lost, — ^the policy is within the statute. Thus, in the case last mentioned («), a policy insuring cash advances on a ship was deemed to be within the statute, although " cash advances " are not there named, because the cash advances would be lost if the ship were lost. In ordinary cases, therefore, it is now requisite that the subject-matter of insurance should be one in which the insured is interested, and, of course, it must be such as it is pos- sible to have an interest in ; and it has been decided, that, if the insured has before the loss assigned away his interest, e. g., by selling the vessel insured, he cannot sue upon the policy for his own benefit, nor as trustee for the assignee, unless the poUcy was expressly or impliedly assigned {/() . The most satisfactory account of what is an insurable interest is that given by Latc- rence, J., in Lucena v. Crauford {I) : — " A man is interested in a thing to whom advantage may arise or prejudice happen from the circumstances which may attend it, and whom it importeth that its condition as to safety or other quality should continue ; interest does not necessarily imply a right to the whole or any part of a thing, nor necessarily and exclusively that which may be the subject of privation, but the having some (/) Thellusson v. Fletcher, \ Doug. 315 ; Craufwd v. Sunter, 8 T. R. 13 ; Nantes v. Thompson, 2 East, 386. But now see 8 & 9 Viot. o. 109, s. 18, post, p. 407. ig) Apart from statute 19 Geo. 2, u. 37, a policy may be void by reason of 8 & 9 Viot. c. 109. See post, p. 407. (A) 18 Q. B. D. 346. (t) Berridge v. Man On Ins. Oo., 18 Q. B. D. 346, following Smith v. Reynolds, 1 H. & N. 221 ; 25 L. J. Ex. 337 (profits on goods) ; Be Mattos T. North, L. R. 3 Ex. 185 ; Allkins v. Jupe, 2 C. P. D. 375. (A) Fowles V. Innes, 11 M. & W. 10. (l) 2 B. & P. N. R. 269, at p. 302. MAKITIME INSURANCE. 401 relation to, or concern in, tte subject of the insurance, which The subject- relation or concern, by the happening of the perils insured against, ™*t^'"' <"■ may be so affected as to produce a damage, detriment, or prejudice insured, to the person insuring. And where a man is so circumstanced with respect to matters exposed to certain risks or dangers as to have a moral certainty of advantage or benefit but for those risks or dangers, he may be said to be interested in the safety of the thing. To be interested in the preservation of a thing, is to be so circum- stanced with respect to it as to have benefit from its existence, prejudice from its destruction." " I know no better definition," says Blackburn, J., in Wilson v. Jones (J), " of an interest in an event than that by Lawrence, J., that if the event happens, the party will gain an advantage ; if it is frustrated, he wUl suffer a loss." "In order to constitute an insurable interest against any peril," says Phillips, in his work on the Law of Marine Insurance, "or render a subject insurable against any peril, it must be such an interest or subject that the peril may have a direct effect upon it, instead of a remote, circuitous, consequential effect "(m). Ships, goods, a special property therein, e. g., that of a carrier («) and charterer (o), or a shipper, who makes the bill of lading deliverable to himself and indorses it to his own agent, or attaches it to a negotiable hill of exchange as a security in the hands of the holder of the biU {p), vendor's lien after stoppage in transitu {q), money expended by a captain for the ship's use, his commission and privileges (r), expected profits (s), bottomry (0 L. R. 2 Ex. at p. 150. L. R. 1 C. P. 305. (m) 1 Phillips on Insurance, s. 175. (q) This is in accordance with the («) Park, 14 ; Crowley v. Cohen, 3 B. better opinions : 1 Amould, 6th ed., & Ad. 478; Waters v. Monarch Life 71. Asa. Co., 6 E. & B. 870. [r] Gregory v. Christie, 3 Doug. 419 ; (o) 1 Amould, 61. King v. Glover, 2 B. & P. N. R. 256. {p) Mitchel V. Ede, 11 A. &E. 888 Brandt v. Sowliy, 2 B. & Ad. 932 Inglis V. Stock, 10 App. Gas. at p. 270 («) Grant v. Farkinson, 3 Hong. 16; Hyre v. Glover, 16 East, 218 ; 3 Camp. 276 ; Stockdale v. Dunlop, 6 M. & W. r V. Shuter, 1 C. P. D. 47; Tu/rner 224; M'Swiney y. Royal Exchange Ass. V. Liverpool Docks, 6 Esoh. 643. But Co., 14 Q. B. 634. See, also, cases see Seagrave v. Vnion Mar. Ins. Co., cited, note (t), ante, p. 400. S.— VOL. I. n „ 402 MERCANTILE CONTRACTS. The subject-'' matter, or ■what may be insured. or respondentia interest {t), freight and advances upon it («), disbursements in the nature of general average at an interme- . diate port (x), liabilities for damages for running down or damaging another vessel (y), — have all been held fit subjects of Marine Insurance. A mortgagee who insures to cover his own interest can re- cover only in respect of it ; if the insurance was intended to cover the interest of the mortgagor also, he may recover in respect of both interests (2). Under the tevm freight may be insured the benefit an owner would derive from carrying his own goods in his own vessel (a). But, in order to recover under a policy upon freight, the assured must prove that but for the intervention of a peril insured against some freight would have been earned, by showing, either that some goods were put on board, or that there was some contract for doing so (b). In Barber v. Fleming (c), the owner of a ship chartered for a voyage from Howland's Island to the United Kingdom, but lost while on her way from Bombay to Howland's Island, with the object of fulfilling charter, was held entitled to recover on a policy insuring freight. "When a shipowner has got a contract with another person under which he will earn freight, and has taken steps and incim-ed (<) Simonds y. Hodgson, 3 B. & 519. Ad. 50. (««) Montgomery v. JSggington, 3 T. B. 362; Taylor v. Wilson, 15 East, 324 ; Currie v. Bombay Native Ins. Co., L. R. 3 P. C. 72 ; The Kmnae, L. E. 2 P. C. 505 (advances upon freight). Even freight by a time policy : Michael V. Gillespy, 2 0. B. N. S. 627. {x) Kingston v. Wendt, 1 Q. B. D. 367. {y) Xenus v. Fox, L. E. i C. P. 666. (a) Mbsworth v. Alliance Mar. Ins. Co., L. E. 8 C. P. 596, at p. 609 ; Castellain v. Freston, U Q. B. D. 380 ; Irving v. Siohardson, 2 B. & Ad. 193. (ffl) Flint V. Fkmyng,, 1 B. & Ad. 46 ; Devam- v. P Anson, 5 Bing-. N. C. (b) Flint V. Flemyng, ubi supra ; Sorncastle v. Siiart, 7 East, 400 ; Mer- cantile Steamship Co. v. Tyi/ser, 7 Q. B. D. 73 ; Inman S. S. Co. v. Bisehoff, 6 Q. B. D.' 648 ; Manjleld v. Maitland, 4 B. & Aid. 582. Lord Fllenborough's expressions in Forbes v. Aspinall, 13 East, at p. 331, that in order to re- cover on a policy on freight, a full cargo must be ready to be shipped, and the ship must be ready to receive the cargo, are explained by Tindal, C. J., in Devaux V. r Anson, 5 Bing. N. C. at p. 538. («) L. E. 5 Q,. B. 69 ; HanJdn v. Foiter, L. E. 6 H. L. 83; Foley y. United Fire and Mar. Ins. Co., L. R. 5 0. P. 165. MARITIME INSURANCE. 403 expense upon the voyage towards earning it, then his interest ceases The subject- to be a contingent thing, but becomes an inchoate interest " (d). matter, or insured. A defeasible or inchoate interest may be insured, as well as one absolute and perfect (e). In a word, any person who has an interest in the subject-matter of insurance may be insured to the extent of that interest (/) ; and any person may be said to have an interest who may be injured by the risks to which that subject-matter is exposed (g). Still, though the definition of an interest is thus wide, there must be some interest such as the law can take notice of. Thus, though the profits likely to be made on an expected cargo may be insured if properly described (A), yet no insurance can be effected on the expected profits of a cargo, to which the claim of the party insuring is founded on a contract void by the Statute of Frauds («). So, if an assurer of a cargo afloat sells the cargo he cannot recover on the policy, either for himseK or the purchaser, in respect of a loss subsequent to the transfer of the cargo, imless there be also a transfer of the policy to the purchaser (J). The question whether the vendee has an insurable inte- rest in goods, the property in which has not passed to him, but which are at his risk, is more diflScult. The point («?) Per Bhclcburn, J., in Barber -7. (/) Per WiUes, J., in Wilson v. Fleming, L. E. 5 Q. B. at p. 71. Jones, L. R. 2 Ex. at p. 141. {«) In Sutherland V. Pratt, 11 M. & {g) Zucena v. Crawford, 2 B. & P. W. 297, it was decided that a mer- N. R. 300. See Stirling v. Vaughan, chant's interest in the safety of goods ubi supra ; Sobbs v. Hannam, 3 Camp, which he had purchased as sound, but 93 ; Fage v. Fry, 2 B. & P. 240 ; per which had been damaged at a time WiUes, J., in Seagrave v. Union Ins. prior to the purchase, was insurable Co., L. R. 1 0. P. at p. 320 ; Bbs- by a policy containing the words lost worth v. The AlHanee Mar. Ins. Co., or not lost. See Stirling v. Vaughan, L. E. 8 C. P. 596 {consignees who had 11 East, 619; 2 Camp. 225; Stephens made advances); and the notes to V. Australasian Ins. Co., L. R. 8 C. P. Goram\. Sweeting, 2 Wms. Saund.200. 18^: Joijee v. Swan, 17 C. B. N. S. 84 ; (h) See Anderson y. Morice, 1 App. le Crasv. Sughes, 2 Park, Insur. 568. Cas. 713, at p. 723; Inglis v. Stock, But it is doubtful whether Le Cras 10 App. Cas. 263. V. Eughes can be supported. In Be- (i) StocMale v. Dunlop, 6 M. & W. rau.v V. Steele, 6 Bing. N. C. 358, and 224 ; and see Stainbank v. Fenning, 11 ialucena v. Crauford, 2B. &P. N.R. C. B. 51 ; Stainbank t. Shepard, 22 at p. 323, strong reflections were oast L. J. Ex. 341. °" '*• (.;') Fm^^les V. Innes, 11 M. & "W. 10. Dn2 404 MERCANTILE CONTRACTS, The stibjeot- arose in Anderson v. Morke {k), Inglis v. Stock {I) in the what^ma°ybe House of Lords, and Colonial Inmrance Co. of New Zealand ™s"^ed. ^ Adelaide Marine Insurance Co.{m) in the Privy Council. In Anderson v. Morice (w) the contract was for "the cargo of new crop Eangoon rice, per Sunbeam, at 9s. l^d. per cwt. cost and freight. Payment hy seller's draft on purchaser." Anderson, the buyer, insured the cargo " at and from Eangoon." Before the loading of the cargo was completed the ship sank. The captain afterwards signed and delivered hiUs of lading, and Anderson accepted the seller's drafts, which were duly honoured. The Exchequer Chamber {Quain, J., dissenting) held, reversing the unanimous judgment of the Commons Pleas, that Anderson had no insurable interest in the cargo and could not recover against the underwriters for the loss. Upon appeal the House of Lords was divided in opinion, and the judgment of the Exchequer Chamber therefore stood (o). In Inglis v. Stock the facts were these : Drake & Co. sold to Stock and to Beloe & Co. each 200 tons of German sugar, "f. o. b. Hamburg; payment by cash in London in exchange for biU of lading " ; the price to be according to the percentage of saccharine matter, which was not to exceed or fall short of a certaiu limit. The goods were to come to Bristol. Afterwards Beloe & Co. resold their 200 tons to Stock at an increased price, but otherwise upon similar terms. To fulfil their two contracts Drake & Co.'s agents shipped in a general ship 390 tons of sugar (being ten tons short) in 3,900 bags, no bags being set apart for one contract more than the other. The bags, however, were each marked, and ten bills of lading made out in an impersonal form, for parcels bearing marks corresponding to those on the bags, were sent to Drake & Co. in London. The goods were lost on the voyage from Hamburg to Bristol. After (A) 1 App. Cas. 713. that he had, either because the pro- {l) 10 App. Cas. 263. perty in the rice had vested in him, (m) 12 App. Cas. 128. or, at any rate, that according to the (») 1 App. Cas. 713. bargain between him and the seller, (o) Lords Chelmsford and Satherley shown by the fact that he had insured ■were of opinion that Anderson had no the goods, and not the seller, and by insurable interest in the cargo. Lords other ciroumstanees, the goods were O'JIagan and Selborne were of opinion to be at his risk. MARITIME INSURANCE. 405 receivinff news of the loss Drake & Co. forwarded invoices of the The subjeot- _ matter, or parcels, by them then allocated hy means of the marks on the what may bo hUls of lading, to Stock and Beloe & Co. respectively. The ""'^''^ ' House of Lords (aflarming the Court of Appeal) held that Stock had an insurahle interest in the 390 tons. "It is contended," says Lord Selborne, "that, under these cir- cumstances, and for want of a proper division before the loss, the shipment had not the effect of divesting the prior title of Drake & Co., the vendors, or of passing any interest in these sugars to the plaintiff (Stock). This argument appears to me to confound two very different things : the appropriation necessary as between vendor and purchaser, and the division, as between purchaser and purchaser, of specific goods, actually appropriated to the aggregate of the two contracts. ... In the present case I see no reason to doubt that the difficulty arising from the confusion of parcels, if not solved by consent (or by arbitration, for which each contract provided), would have been soluble by principles of law, applied to the facts and terms of the contracts. The,_goods were, by the act of the vendors, separated from the bulk of all other goods belonging to them ; they were shipped ' free on board ' in what (for that purpose) was the purchaser's ship under two contracts so to deliver them, in both which contracts the plaintiff (Stock) was then solely interested " {p). The interest which an underwriter acquires in the safety of that which he had insured was declared not to be a legal subject- matter of insurance, except in certain cases ; but the prohibition of re-assurance has now been repealed {q), and the policy need not state, nor need the assurer disclose, the fact that it is a re-insurance (r). The re-insurance may be limited to some only of the risks included in the original insurance. Thus, an insurer against marine risks generally may re-insure against loss by fire only (s). (p) 10 App. Cas. at pp. 267, 268. See derson v. Morice, 1 App, Cas. at p. 723, alsoperLord^teAte™, atp. 274. The yerltovdi Chelmsford. plaintiff in Anderson v. Morice, though [q] 30 & 31 Vict. c. 23, sched. D. ; held to have no insurable interest 30 & 31 Vict. c. 59. in goods, had an insurable interest (r) MacKenzie v. Whitworth, L. E. in expected profits, against the loss 10 Ex. 142; 1 Ex. D. 36. of which ho might, by a proper de- (») Imperial Mar. Co. t. Fire Int. soription, have insured himself; An- Corporation, i C. P. D. 166. See 406 MERCANTILE CONTRACTS. The subject- matter, or ■what may he insured. At common law the wages of seamen are not insuraWe (t). But now that wages no longer depend on the earning of freight (m), the reason for this disability appears to be gone. The assured must, at the time of the loss, though not necessarily at the time of effecting the policy («), have an insurable interest. If he has parted with his interest before the loss he cannot recover upon the policy, at any rate for his own benefit (y). If, however, the assured assigns his interest, and at the same time transfers his interest in the policy to the assignee, or agrees that it shall be kept alive for the benefit of the latter, the assured may sue as trustee for the assignee (s). The policy must properly describe the interest of the assured. "If no property which, answers the description in the policy be at risk, the policy will not attach, though the assured may have other property at risk of equal or greater value ; the- reason being, that the assurers have not entered into a contract to indemnify the assured for any loss on that other property" (o). The interest must not be too remote {b). In former editions of this work it was said, "upon the whole, the leaning seems to be at present towards a more confined signification of the word interest than has been attributed to it by some of the older authorities (c). But in Stock v. Inglis (d), Brett, M. E., " It is the duty of a Court always to lean in favour of an insurable interest. Of ooui-se we must not assume facts which do not exist, nor stretch the law beyond its proper limits, but we ought, I think, to consider the question with a mind, if the facts and law will allow it, to find in favour of an insurable interest." further, as to re-insurance, Gledstancs V. Soyal Exchange Co. 34 L. J. Q. B. 32 ; Xfzielli v. Soston Mar. Ins. .Co., 15 Q. B. D. 11. [t) The Neptune, 1 Hagg. 239. (m) Merchant Shipping Act, 1854, 8. 183, in Appendix. (k) Ehind v. WilMnson, 2 Taunt. 237 ; 1 Amould, p. 59, 6th ed. [y) Powles T. Innes, 11 M. & W. 10. (a) Ibid. ; North of England Oil Cake Co. V. Archangel Mar. Ins. Co., L. R. 10 Q. B. 249. (a) Mackenzie v. Whitworth, 1 Ex. J). 36 (0. A.) at p. 40, per Blackburn, J. (J) See per Lord Eldon in Lucena v. Orauford, 2 B. & P. N. E. 269, at pp. 321, 323. (c) Citing Lucena v. Crauford, supra ; Devaux v. Steele, 6 Bing. N. 0. 358 ; and Seagrave v. TTnion Mar. Ins. Co., L. E. 1 C. P. 308. [d] 12 Q. B. D. at p. 671. MARITIME INSUKANCE. 407 Every policy -will be presumed to be an interest, and not The subjeot- a wager policy, unless the contrary appears on tbe face of what may be it (/). '°°°'^^^- Apart from tbe statute 19 Geo. 2, c. 37, it is enacted by 8 & 9 Vict. c. 109, s. 18, in general terms, tbat " all contracts or agree-, ments, wbetber by parole or in writing, hy way of gaming or wrigering, shall be null and void." It is scarcely needful to observe that the subject-matter of the insurance will be improper, and the policy unavailable, where a voyage insured is one prohibited by law, or goods insured are intended for carrying on an illegal commerce (gr). Trading with an enemy without the king's licence is illegal (A). But such trade will be legalised by a royal licence (i), the conditions of which must be strictly observed. Thus, if it require a bond as a preliminary to exportation, that bond must be given, or the exportation will be illegal {h). So, if the licence be for a limited time ; though, if the adventure were bon& ficle prosecuted within the time, it will not become illegal, so as to avoid a policy, because accidentally protracted beyond it {I). An adventure which involves any breach of the revenue laws of another country will not be deemed illegal. Neither will a voyage for the purpose of conveying contraband of war, or running a blockade. Such, however, are material facts to be disclosed to the imderwriters {m). An insurance on a voyage intended to be in breach of some statute passed to prohibit such voyages would be void. But Wilson V. Rankin (w), and Cunard v. ITyde (o), are authorities to show that if the statute is broken by the master, without the knowledge or authority of the owner, the policy will not be void. (/) Amould, 6th ed. p. 229. S. 220 ; liuehr v. Ansleij, 5 M. & S. 25. (g) Camden v. Anderson, 6 T. E. 723 ; (A) Vandyck v. Whitmore, ubi sup. 1 B. & P. 272 ; Johnston v. Sutton, [l] Schroedcr v. Vatix, 15 East, 52. 1 Dougl. 254 ; Delmada v. Motteaux, (m) Ex parte Chavasse, In re Graze Park, 357, 7th ed. ; Redmond y. Smith, brook, 34 L. J. Bank. 17. 7 M. & G. 457. («) L. E. 1 Q. B. 1G2, decided in (A) Fotts T. Bell, 8 T. E. 648; reference to 16 & 17 Vict. c. 107, Etpoaito V. Bowden, 7 E. & B. 763. as. 170, 172 (since repealed), as to load- (i) Vandych v. WTiitmore, 1 East, ing timber on deck. 475 ; Robimon v. Cheesewright, 1 M. & (o) 2 E. & E. 1. 408 MERCANTILE CONTRACTS. The subject- matter, or ■what may be insured. An infirmity in any paxt of an integral voyage or policy renders the whole illegal (jp) ; as, for instance, if a merchant insure legal and Ulegal goods together in the same policy. But if a ship bring hither from a hostile country some goods licensed and others not licensed, an insurance on the licensed goods will not he thereby vitiated {q). A subject of Great Britain, domiciled in a country in amity with ours, may exercise the privilege of a subject of that country, by trading with one in hostility to ours (r). The policy — its form and construction. Section IV. — The Policy — its Form and Construction: The policy, which is usually printed, with a few terms super- added in writing, as the intention of the parties happens to require, is an instrument of an extremely ancient form and very inaccurate and ungrammatical in its language (s). The words in writing, if there be a doubt upon the meaning of the whole, have greater effect attributed to them than those in priat, be- cause they are the immediate terms selected by the parties, whereas the others are a general formula (t). Sect. 7 of 30 & 31 Vict. c. 23, which regulates the stamp duty on marine insurances, provides that — "No contract or agreement for sea insurance (other than such, insurance as is referred to in the 55th section of the Merchant Shipping Act Amendment Act, 1862 (m)), shall be valid unless the same is expressed in a policy ; and every policy shaU. specify the {p). Parlcin v. Dick, 2 Camp. 221 ; 11 East, 502; WiUm v. Maryat, 8 T. E. 31 ; Waugh v. Morris, L. E. 8 Q. B. 202 ; Cameh t. Britten, 4 B. & Aid. 184. [q] Pieschell v. Alniitt, 4 Taant. 792. See Hagedorn v. Bell, 1 M. & S. 450 ; Cameh v. Britten, supra ; and 1 Duer, 390. (r) Bell V. Jieid, 1 M; & S. 726. («) Brmgh v. Whitmore, 4 T. E. 206. 30 & 31 Vict. 0. 23, s. 5, provides that the Commissioners of Inland Ee- venueare to provide stamped blank forms of policies in the form in sched. E. to the Act. [t) Robertson v. French, 4 East, at p. 136. See per Pollock, 0. B., Al- sager v. St. Eatherine's Dock Co., 14 M. & W. at p. 798 ; and per Erie, J., Salhead v. Toimg, 6 E. & B. at p. 320; per Blackburn, J., in Joyce v. Realm Ins. Co., L. E. 7 Q. B. at p. 583. (»() 25 & 26 Vict. c. 63. MARITIME INSUIIANCE. 409 particular risk or adventure, the names of tlie subscribers or under- The policy- writers, and the sum or sums insured ; and in case any of the above- construotion. mentioned particulars shall be omitted in any policy, such policy shall be null and void to all intents and purposes" {v). The policy must be properly stamped ; and no action can be maintained upon the slip, or note — a memorandum of chief particulars in the contract, initialed by the underwriters — which is usually made by the broker before a formal policy is pre- pared. Though not binding in law, the slip is in practice con- sidered the contract between the parties. It may be given in evidence. Its legal nature is thus stated by Blachbuni, J., in lonidea v. The Pacific Ins. Co. {x) : — " The slip is m practice, and according to the understanding of those engaged in marine insurance, the Complete and final contract between the parties, fixing the teiTas of the insurance and the premium, and neither party can, without the assent of the other, deviate from the terms thus agreed on without a breach oi faith, for which he would suffer severely in his credit and future business. [The slip] is by virtue of [30 Vict. c. 23, ss. 7, 9,"] not vahd, that is, not enforceable at law or in equity; but it may be given in evidence wherever it is, though not valid, material." Parol evidence is not admissible to control the meaning of a policy, or, indeed, of any other written instrument (//) : though it is admissible, as in cases of other mercantile instruments, to explain the language of the policy, with reference to the usual practice of trade, ex. gr., to show that the Grulf of Finland is considered by mercantile men part of the Baltic (s). The underwriter is supposed to contract with reference to the settled (e) ^e& Edwards y . Aberayron Mutual (y) Aguilaw. Rodgera, 7 T. E. 421; Ship Ins. Co., I Q. B. D. 563. JBUckett v. S. E. A. C, 2 C. & J. at (a;) L. R. 6 Q. B. 674, at pp. 684, p. 249 ; Sail v. Jmson, 4 E. & B. at 685. See also Cory v. Patton, L. R. 7 p. 509. Q. B. 304 ; Mackenzie v. Coulson, L. R. (z) JJhde v. Walters, 3 Camp. 16. 8 Eq. 368 ; Fisher v. Liverpool Mar. See Lewis v. Marshall, 7 M. & Gr. 729. Xns. Co., L. R. 9 Q. B. 418; £arrow Compare Birrelly. Dryer, 9 App. Cas. Mut. 8. Ins. Co. V. Ashburnei-, 64 L. J. 345, where the policy contained the Q. B. 377 ; and see post, p. 483. The words " warranted no St. Lawrence statute does not apply to fire inaur- between the 1st October and lat anoes, Thompson v. Adams, 23 Q. B. D. April." at p. 366. 410 MERCANTILE CONTRACTS. The policy— and generally known usages of maritime trades or ports (o) ; construction. ^0^ example, tlie usage for underwriters to pay the broker or to settle the loss between them in account {b). Being prima facie only the usage of a single house, the usage of Lloyd's will not be binding on one who cannot be shown to be acquainted with it (c). A policy will be construed by the law of the place where the contract was made (d). A policy is either open or valued. An open policy is where the value of the thing insured is not inserted in the policy ; and, therefore, must be proved at the trial, if a loss happen. A valued policy is where the value of the thing insured is settled by agreement between the parties (e), and inserted in the policy, usually in this form : — " The said ship, Sfc, goods and merchandise, 8{c., for so much as concerns the assureds by agree- ment between the assureds and assurers in this policy, are and sliall he valued at £ ." And sometimes the words, " the policy to be deemed sufficient proof of interest in case of loss," are added. But having regard to 19 Geo. 2, o. 37, s. 1, and the decision in Berridge v. Man On Insurance Co. (/), the insertion of these latter words would vitiate the policy. Valued policies derive their origin from the difficulty the assured sometimes had in proving the value of his interest, which induced him to give the insurer a greater premium to agree to estimate it at a certain sum ; frpm which he derives this advantage, viz., that in case of a total loss of what is insured, he is only bound to show some interest in order to satisfy the statute 19 Geo. 2, c. 37, but not the value, because that is admitted by, and in the absence of fraud, is con- clusive upon the insurer [g) and the insured {h) for the purposes {a) 1 Amould, 277, 6th ed. ; Pearson 1 Ex. 425. ■V. Commercial Ass. Co., 1 App.Cas.498. [d) Greery. Pole, 5 Q. B. D. 272. (4) Sweeting v. Pea/roe, 9 C. B. N. S. («) See lAdgett v. Secrefan, L. R. 6 534. See Perry v. Bamett, 15 Q. B. D. C. P. 616. 388. (/) 18 Q. B. D. 346. (c) Oahay t. Lloyd, 3 B. & 0. 793 ; (.9) Lewis v. Sucker, 2 Burr. 1171 ; Bartlett v. Pentland, 10 B. & 0. 760. Irving v. Manning, 1 H. L. Oa. 287 ; It is suggested in a note to former Barker v. Janson, L. E. 3 0. P. 303 ; editions, p. 340, 9th ed., that in oer- Lidgett v. Secretan, L. E. 6 C. P. 616. tain cases even between such persons But see Williams v. North China Ins. such usages may be admissible, on Hhe Co., 1 C. P. D. 757. principle of Stewart v. Cauty, 8 M. (A) lie North of JSngland I. Ass. v. & W. 160 ; Baylife v. Butterworth, Armstrong, L. R. 5 Q. B. 244. MARITIME INSURANCE. 411 of the particular contract of insurance (s). However, valued T^e-pdlioy— policies must not be used as a cover for wagering ; and, therefore, construction, the interest of the assured must be a real bond fide interest, not a mere colourable one, otherwise the policy will be void; nay, if he fraudulently over-value his interest, in order to cheat the in- surers, he will not be permitted to recover even for what he actually had on board (A). Exorbitant over- valuation may be evidence of fraud or wagering {I), If the whole of the property insured have not been at risk, the assured will recover only on the part actually at risk. In other respects the valuation, for the purposes of the contract, is conclusive (m). The following is the ordinary form (n) of a policy of insur- ance on ship and goods : — ^- ^' ^ " Be it known that A. B. (the insured) as well iu ^ I his own name, as for and in the name and names of Delirered the > all and every other person or persons to whom the of I same doth, may, or shall appertain, in part or in all, .^0. J doth mate assurance, and cause himself and them, and every of them, to be insured, lost or not lost, at and from . Upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat and other fur- niture, of and in the good ship or vessel called the , whereof is master, under God, for this present voyage, C. D., or whosoever else shall go for master in the said ship, or by whatsoever other name or names the same ship, or the master thereof, is or shall be named or called ; beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship, upon the said ship, &c. , and shall so continue and endure during her abode there, upon the said ship, &c. And further, imtil the said ship, with all her ordnance, tackle, apparel, &o., and goods and merchandises whatsoever, shall be arrived at upon the said ship, &c., until she hath moored at anchor twenty-four hours in good safety ; and upon the goods and merchandises, until the same be there discharged and safely landed. And it shall be lawful for the said ship, &c., in this voyage to proceed and sail to (») See Surnand t. SodoeanacM, 7 L. R. 9 Q. B. 631. App. Cas. at p. 335. (m) ToHn v. Harford, 32 L. J. C. P. {k) Haigh v. De la Com; 3 Camp. 134 ; 34 L. J. C. P. 37 ; Denoon v. 319. See Shawe v. Felton, 2 East, at Home and Colonial Assurance Co., L. E. p. 116. 7 C. P. 341. (1) Marker v. Janson, L, E. 3 C. P. (») This is the form prescribed by at pp. 306, 307 ; lonides v. Pmdei; 30 & 31 Viot. c. 23, sched. E. 412 MERCANTILE CONTRACTS. The policy— and touch and stay at any ports or places whatsoerer ■witiout construction, prejudice to this insurance. The said ship, &e., goods and mer- chandises, &c., for so much as concerns the assured, by agreement between the assured and assurers in this policy, are and shall he valued at . Touching the adventures and perils which we the assurers are contented to bear and do take upon us in this voyage : they are of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter-marts, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes and people, of what nation, condition or quality soever, barratry of the master and mariners, and of all other perils, losses and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandises and ship, &o., or any part thereof. And in case of any loss or misfortune, it shall be lawful to the assured, their factors, servants and assigns, to sue, labour and travel for, in and about the defence, safeguard and recovery of the said goods and merchandises, and ship, &c., or any part thereof, without prejudice to this insur- ance ; to the charges whereof we the assurers will contribute, each one according to the rate and quantity of his sum herein assured. And it is agreed by us, the insurers, that this writing or policy of assurance shall be of as much force and effect as the surest writing or policy of assurance heretofore made in Lombard Street, or in' the Royal Exchange, or elsewhere, in London. And so we the assurers are contented, and do hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the assured, their executors, administrators and assigns, for the true perform- ance of the premises, confessing ourselves paid the consideration due unto us for this assurance by the assured at and after the rate of . " In witness whereof we the assurers have subscribed our names and sums assured in . "N.B. — Corn, fish, salt, fruit, flour and seed are warranted free from average, unless general, or the ship be stranded. — Sugar, tobacco, hemp, fliax, hides and skins are warranted free from average, under bl. per cent. — And all other goods, also the ship and freight, are warranted free from average, under 3/. per cent., unless general, or the ship be stranded" (w). The principal parts of the policy are : — 1st, the name of the insured or his agent ; 2ndly, That of the ship ; 3rdly, («) For a form of policy of insurance B. D. 110; and The Great Britain of a mutual association, see United 100 A\ Ins. Association v. Wyllie, 60 Kingdom Assoeiation v. Nevill, 19 Q. L. T. N. S, 916 ; 22 Q. B. D. 710. MARITIME INSURANCE, 413 The subject-matter of insurance ; 4tlily, The voyage insured ; The policy— 5thly, The perils insured against ; 6thly, The date and suh- eoastmotion. scription ; 7thly, The volunteer clause ; bthly, The sue and labour clause ; tithly, The memorandum ; lOthly, The running down clause; llthly, The stamp; and 12thly, Warranties. Let us consider these in order : — Ist, Name of Insured. — By statute 28 Geo. 3, c. 56, it is enacted, that it shall not be lawful for any person to make or effect any pohcy of insurance on any ship, goods, or other property, without first inserting the name or names, or usual style and firm, of one or more of the persons interested in such insurance, or of the consignor or consignors, consignee or consignees of the property so insured, or of the person or jjersons residing in Great Britain u-ho shall receive the order for and effect such policy, or of the person or persons who shall give the order to the agent immediately employed to effect such policy. Policies are declared void if contrary to this statute (o). But the statute having been passed to remedy the hardships caused by the earlier Act 25 Geo. 3, c. 44, has received a liberal construction. Thus, the words " consignees (o), persons who shall receive the order, &e.," have been construed to include general agents (o). The Policies of Marine Insurance Act, 1868, provides that the assignee of a policy which has been assigned "so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured," may sue on the policy in his own name {p). The assignee, whether he sues iu his own name or in that of the assignor, is subject to any rights which might be set up against the latter. The underwriter will not, either under this Act or sect. 25 of the Judicature Act, 1873, be able to set off against the assignee a debt for policies effected after the assignment ; such a claim is not a " defence" within the mean- (o) See Wolff v. Somcastle, 1 B. & on his behalf by an agent, whose act P. 316, and the remarks of Lord Esher, he authorised or has ratified. Watson M. E., in Great Britain 100 ^1 Im. As- v. Swann, 11 C. B., N. S. 756. sooiation v. Wyllie, at p. 719. Inde- (p) 31 & 32 Viot. o. 86, s. 1. See pendently of this statute in order to Appendix, auA Lhydy. Fleming,'L.'R. enable a person to sue on a policy, it 7 Q. B. 299. must have been made -with him, or 414 '" MERCANTILE CONTIIACTS. The policy— jng of ^j^q former statute (9'). The assignment may be by oonatruotion. indorsement according to the form given in the schedule to the Act. The assignment may be made after loss if). 2ndly, The name of Ship. — The ship ought to be truly described ; for a variance from its right name might discharge the underwriter. Where the name of the ship is known it is indorsed on the policy. It is, however, usual to insert in the policy, "or by whatever other name or names the same ship shall be called ; " the effect of which is to render a mistake in the name immaterial, if the identity of the ship can be proved and the underwriter be not prejudiced by it (s). A policy may also be effected upon ship or ships expected from any particular place, or "per ship or ships" (f). Declaring the name of the ship is not a condition precedent to recovering, and an innocent mistake as to the name in the declaration wiE not vitiate the contract (ii). The same observations apply to the name of the master (»), which is generally inserted along with that of the ship, with the addition of " or whosoever else shall go for master in the said ship." The person substituted must be competent; or if made for a fraudulent purpose the change would vitiate the contract {x). 3rdly, The subject-matter of Insurance. — The subject-matter should be described with accuracy {y), and evidence of usage is not admissible to contradict the plain meaning of such descrip- tion (s). A ship-owner may insure, under the name of freight, [q) Pellaa T. Neptune Mar, Ins. Co., 5 [x) Morocco Land (md Trading Co. t. C. P. D. 34. Fry, 11 L. T. N. S. 618. [r) Lloyd v. Fleming, L. E. 7 Q. B. {y) Glover v. Black, 3 Bun-. 1394 ; 299. SimondsY. Sodgaon, 6 Bing. 114, re- (s) Le Memrier t. Vaughan, East, versed upon another point in 3 B. & 382. * See lonides v. ThcFaeific F. f M. Ad. 50. I. Co., L. E. 6 Q. B. 674; 7 Q. B. («) £lao/cett v. Soyal Exchange As- 517. surance Co., 2 C. & J. 244 ; Hall v. («) Kewley v. Myan, 2 H. Bl. 343. Jamon, 4 E. & B. 600. See Lewis v. (w) 1 Amould, 6th ed. p. 338. Marshall, 7 M. & Gr. 729. But see {v) Moroeco Land Co. v. Fry, 11 L. Miller v. Tetherington, 6 H. & N. 278; T. N. S. 618. 7 H. & N. 954. MARITIME INSURANCE. 415 the benefit lie expects to derive from carrying his own goods in The poUoy- his own vessel (a), or, under the term " aoerage expenses" per the oonstrmjtion. ship, a lien on the cargo for salvage for which he has given security (6). So provisions are comprehended under the word furniture (c). It is a sufficient description to say that a policy is upon goods generally. But that word will be intended to mean goods of ordinary, not extraordinary, danger, not such, for instance, as goods intended to be lashed on deck (rf), unless, indeed, they be goods which it is usual and proper to stow there (e) : for what is usually done by such a ship with such a cargo on such a voyage is understood to be referred to by every policy, and to make a part of it, as much as if it were expressed therein (/). An assurance may be effected upon profits gene- rally (r/). But freight or profits must be insured eo nomine, and are not covered by a policy on goods {h). Nor will a policy on goods cover the interest of a purchaser to whom the property does not pass until delivery {i). Although the subject-matter of insurance must be properly described, the nature of the interest may be, generally speaking, left at large : in other words, though a policy must state correctly what is insured, it is not necessary that the reason (a) Flint v. Flemyng, 1 B. & Ad. 45; («) Da Costa v. Mdmunds, 4 Camp. Sevaux v. I' Anson, 6 Bing. N. C. 519. 142. Ab to deck cargoes of timber, As to passage money, see Dmoon v. see 39 & 40 Vict. u. 80, b. 24. Some $ C. A. Co., L. E. 7 0. P. 341, (/) Felly v. Boyal Exchange Assur- where such money was held not ance Co., 1 Burr. 350. See Noble v. covered by insuiance on "freight." Kennouay, 2 Dougl. 610, and 2 "Wms. But the case is open to doubt. As to Saund. 200, in notis. whether payments made in advance on (y) Eyre v. Glover, 16 East, 218; 3 account of freight will come within the Camp. 276. See Anderson v. Morice, term, see 1 Amould, p. 34, 6th ed. L. R. 10 C. P. 58, 609, andante, p. 401, (4) Briggs y. Merchant Traders S. A., note{i). &ee Smith\.Eeynolda,n3..k 13 Q. B. 167. N. 221. As to what it will apply to, (c) Brough v. Whitmore, 4 T. B. 206. see M'Swiney v. Royal Exchange As- As to the extent of this word, see surance Co., 14 Q. B. 634; Malliead\. Blackeit v. Soyal Exchange Assurance Toung, 6 E. & B. 312. Co., 2 C. & J. 244. [h) Baillie v. Moudigliani, Park, 90. {d) Judgment of liOxA. Lyndhurst va As to what "freight" would cover, Blackett v. Royal Exchange Assurance see Amould, 6th ed., p. 34. Co., 2 C. & J., at p. 260/ Ross v. (i) Andersons. Morice, 1 App. Cas. Thieaite, Park, 26; Backhouse y. Rip- 713. lev. Ibid. 416 MERCANTILE CONTKACTS. Tlie policy— the party insures should also he expressed (/). It sometimes oonrtrMtion. happens that the insurance is upon goods, "to he there- after declared and valued, by ship or ships;" or upon ships to he named, or in some form which leaves it to the insured to make a subsequent declaration of the goods or ships ia- tended. This declaration of interest, as it is called, is the mere exercise of a power conferred on the assured ; it requires no assent on the part of the underwriters, though they generally sign their initials to it, not, however, for the purpose of expressing their assent, but for that of authentication (Jt). The insured, therefore, can only fiU it up so as to be consistent with the policy, and has not, in the ordinary form of policy, power to declare the matters of the risk in separate parcels, so as to make the average clause apply separately to each(/). It is generally put upon the policy for convenience. But this is not necessary; neither is there any necessity for its being in writing. An error in it, made without fraud, may be corrected without the assent of the underwriter, and without a new stamp («). But though it does not require the underwriter's assent, it ought to be communicated to him (w), else it would be in the power of the insured to destroy it, and substitute another in its place. If the words of the policy be large enough to cover an illegal adventure, and an illegal adventure was in fact intended by the insured, the policy is void, and the xmderwriter cannot sue for the premium (o). To adapt to the actual facts of commerce the policy, in the above form, which strictly applies only where the same person is interested in cargo and ship, it is customary to insert in writing on the margin or body of the policy a descrip- tion of the true nature of the subject-matter of insurance. 4thly, The Voyage or Duration of Bisk. — The voyage also must (J) Crowley v. Cohen, 3 B. & Ad. [m) Sobinson v. Touray, 3 Camp. 478. 160 ; Stephens v. Australasian Ins. Co., {k) lonides v. Paeific I. Co., L. R. 6 L. E. 8 C. P. 18 ; 30 & 31 Vict. c. 23, Q. B. 674; 7 Q. B. 517 ; Brett, J., in ,s. 10. Stephens v. Australasian Ins. Co., L. R. {«) Harmon v. Kingston, 3 Camp. 8 C. P. at p. 23. 150. (I) Entwisle v. Ellis, 2 H. & N. (o) Jenkins t. Fower, 6 M. & S. 282. 549. MAEITIME INSURANCE. 417 he accurately described ; the description comprehending the The policy- times and places at which the risk is to hegin and end (q). The construction, statute 30 & 31 Viet. c. 23, hy s. 7, enacts that " every policy shall specify the particiilar risk or adventure, and in case [the same] be omitted in any policy, such policy shall be null and void to aU intents and purposes." It is said that an omission of the place where the risk is to begin would render the policy void for uncertainty (y), but that an omission of the time would cause the risk to begin from the making of the policy (s). The insertion of the words at and from the ship's loading port has the effect of making the insurer answerable for any misfortune which may happen after her arrival(^), or while the ship remains there, as if she be burnt or lost there, or detained by an embargo (m). The insertion of these words, moreover, implies that the ship is either there at the time, or shortly will be there (*) ; in default of which the underwriter is discharged ; and, if she be not there when the policy is made, she must, in order that the risk may attach, arrive there in good physical safety. If she arrive at the outward port so shattered as to be a mere wreck, a policy on the homeward voyage never attaches (y). I use the words physical safety, because it is sufficient if she arrive safe in that sense, though from political causes she may be in great danger of condemnation (z). It is also impUed that she shall sail thence as soon as she reasonably can ; and, therefore, if the insured mean to protect his vessel during a stay in port, he should use those words in the policy {a). A policy at and from on freight, (j) Mohertaon v. French, i East, {x) Be Wolf v. The Archangel M. S. 130; Lmghorn v. Bardy, i Taunt. ^-7. (7o., L. R. 9 Q. B. 451. And see 628 ; SpUta v. Woodman, 2 Taunt. Freeman v. Taylor, 8 Bing. 124. 416. {y) Farmeler v. Cousins, 2 Camp. (»•) MoUoy, b. 2, o. 7, s. 14 ; Park, 235. See Barker v. Janson, L. R. 3 28 ; 1 Amould, 237 (6ih ed.). C. P. 303 ; Satighton v. Empire Marine («) Ball Y. Knight, Fitz. 274. Ins. Go., L. R. 1 Ex. 206. (t) Maughton v. The Empire M. I. (2) Bell t. Bell, 2 Camp. 475. Co., L. R. 1 Ex. 206. (a) Palmer v. Fenning, 9 Bing. 460. {«) Eotch V. Edie, 6 T. R. 413 ; See Smith v. Smridge, i Esp. 25 ; Palmer v. Marshall, 8 Bing. 79. See Grants. King, i'Ks^.nh; icai Phillips Chitty V. Selviyn, 2 Atk. 369 ; Warre v. Irving, 7 M. & &. 328. V. Miller, 4 B. & C, 538. S. — VOI,. I. E E 418 MERCAKTILE CONTRACTS. The policy— the ship heing in a foreign port, means on the homewavd freight, construction, and will not cover a subsequent loss of the outward (&) ; neither does such a policy at all attach until the vessel is in a condition to begin to take in her homeward cargo ( .its form and are descnbed to be " of the seas, men-oi-war, lire, pirates, rovers, thieves, jettisons, letters of mart and counter- mart, surprisals, takings at sea, arrests, restraints, and ' detain- ments of all kings, princes, and people, of what nation, condition, or quahty soever ; barratry of the master and mariners, and all other perils, losses, and misfortunes, that have or shall come to the hurt, or detriment, or damage of the said , or any part thereof." The underwriters may be liable for losses prior to the date of the policy, provided there be no concealment or misrepresentation. Where the words " lost or not lost," Galilei mr bonnes ei mauvaines nouvelles, are inserted, as they usually are, they render the underwriter liable in respect of any of the above perils, though the ship be lost before the insurance (;?); they render the policy, in the words of Parke, B., "a con- tract of indemnity against all past as well as aYi. future losses sustained by the assured in respect of the interest insured" (q). Even in the absence of the words "lost or not lost" the policy will cover past losses, if the intention to include these appears from the description of the rest(r). A policy con- taining the words " lost or not lost " will even include cases in which the subject-matter of insurance had not vested in the assured at. the time of the occurrence of the loss; for instance, if a merchant having bought goods at sea were to insure them, lost or not lost, the policy would cover a loss sustained by them during the voyage, but before the pur- chase (s). It is sometimes the practice to restrain these words, by warranting the ship to be well on a particular day ; yet, even then, if she were well on any part of that day, though she be lost before the policy is effected, the underwriter will be liable {t). Indeed, if the insured, or an agent by whom the insurance is effected, or an agent who ought to have and might (p) Gledstanes v. Scn/al Exchange (*) SiUherlimd y . Frail, 11 M. & W. Ass. Corporation, 34 L. J. Q. B. 30. 296. (. 518. (») Mullett v. Shedden, 13 East, 304. {/) Mabitt T. Lushington, 4 T. E. 783. [j] Campbellx. Innes, 4 B. & Aid. 423. {g) Auberi v. Gray, 32 L. J. Q. B. (A) Simeon v. Sazetl, 2 M. & S. 94 ; 50 ; Eodoeanachi v. Elliott, L. R. 8 5 Taunt. 824 ; 5 M. & S. 147. C. P. 649; 9 C. P. 518. Generally [l) Aubert v. Gray, 32 L. J. Q. B. this would not be a total loss, but the 60 ; overruling' Conway, t. Gray, 10 stipulation of the parties or circum- East, 536. stances may make it so. As to the dis- (m) See Lord Alvanley's opinion in tinotiou between restraint and capture, Touteng y. Hubbard, 3 B. & P. 291' seeFowlerv.E.^S.M.I.Co.jlSCB. Green v. Young, 2 Ld. Raym. 840; N. S. 818, where the underwriter was 1 Ai-nould, 6th ed. p. 767. MAKITIME INSURANCE. 429 the detention te occasioned by the gross negligence («), or ThepoUcy— . . . its form and improper conduct of the assured himself, e. g. m carrymg smau- construction, lated papers without the underwriter's permission, he will not he permitted to recover ; for his supineness or misconduct is a breach of his implied warranty to guard against the risks covered by the policy (o). But a contravention of the mere revenue laws of a foreign country, consented to by the under- writer, will not vitiate it ; for our Courts do not take notice of them {p). If the vessel be deterred from proceeding on her voyage through fear of an embargo {q), or find the port of destination shut against her (r), or be permitted to land her goods (which are afterwards seized) in the usual manner («) these losses are not within the policy ; for, in the former cases, there was no seizure ; in the last, none until the voyage had determined. But the underwriter cannot protect himself by saying that the seizure was unjustifiable, or that the insured had a remedy over against the aggressors {t). Barratry by the Master and Mariners. — Barratry is derived from an Italian word, which signifies to cheat. In policies it includes every species of fraud or knavery in the master or mariners of the ship, by which the owners are injured (m). PhiUips, s. 1062 (who collects the various judicial definitions of barratry), thus defines it : — " An unlawful, fraudulent, or dishonest act of the master, mariners, or other carriers, or of gross misconduct, or very gross and culpable negligence, contrary, in either case, to their duty to the owner, and that might be prejudicial to him or to others interested in the voyage or adventure." (») Pipm V. Cope, 1 Camp. 434. See [r) Sadkinsm v. Eobimmt, 3 B. & P. 2 Vem. 176 ; Sorneyer v. Lushington, 388. 3 Camp. 85 ; Belly. Carstairs, 14 East, (s) Brown v. Carstairs, 3 Camp. 161. 374. See Cmtuthers v. Gray, 16 East, 35 ; 3 (o) 1 Camp. 436, n. See post, pp. Camp. 142. 458 et seq. [t) Botch v. Mie, 6 T. R. 413 ; Mul- {p) Planche v. Fletcher, Dougl. 251; lett v. Shedden, 13 East, 304 ; WiUony. Holman v. Johnson, 1 Cowp. at p. 343. Forater, 6 Taunt. 26. See Suiteon v. Bazelt, 2 M. & S. 94 ; 6 (k) lockyer v. OJley, 1 T. E. 252 ; Taunt. 824 ; Emperor of Austria v. Knight v. Cambridge, 1 Str. 581, the Day, 3 De G. F. & J. 217. first case on the subject; Heyman v. (y) Forater v. Christie, 11 East, 206. Pariah, 2 Camp. 149. 430 MERCANTILE CONTRACTS. The policy— Thus barratry may be committed by a wilful deviation in construction, fraud of the owner (»), by smuggling {x), by sailing in breacb of an embargo, and rendering ship liable to seizure {y), by wil- fully breaking a blockade (s), by running away with the ship (a), by sinking or deserting her, or by defeating or delaying the voyage with a criminal intent (i). Even dropping at anchor with a fraudulent intent is barratry (c). If, by reason of these or other similar acts, the subject-matter of insurance is detained, lost, or forfeited, the insured will be entitled to recover for a loss by barratry. However, to constitute an act of barratry, there must be fraud or wilful misconduct — it must arise ex malefido ; a simple deviation through ignorance, unaccompanied with fraud or crime, will not be barratry («f). From the definition of barratry above given, it follows that it can be committed by no one but the master and mariners, and against no one but the owner of the ship (e), a term which, however, comprehends owners pro hac vice, e. g., general freighters' (/). Of course, when the owner of the ship is also master, he cannot commit barratry against himself [g), nor can an act performed with his consent be barratrous against him ih). But a part-owner, who is also master, may be guilty of barratry (i). Barratry may not be committed against the freighter with the consent of the general owner (A;), unless, perhaps, in cases where the freighter must be considered to be [v) Vallejo V. Wheeler, Cowp. 143. Fhyn v. B. E. A. Co., 7 T. R. 505 ; (s) See Locleyer v. Offley, ubi sup. Grill v. Iron Screw Colliery Co., L. R. (y) Robertson v. Ewer, 1 T. R. 127. 3 C. P. 476 (" wilful default" only, (2) GoUschmidt v. Whiimore, 3 witliiu the meaning of s. 299 of Mer- Taunt. 808. ohaut Shipping Act, 1854, is not bar- (ffl) Hihhert v. Martin, 1 Camp. 539 ; ratry). Sucks T. Thornton, 1 Holt, 30; Toulmin (e) Ntitt v. JBordieu, 1 T. R. 323. T. Inylis, 1 Camp. 421 ; Toulmin v. {/) Vallejo v. Wheeler, Cowp. 143, Anderson, i Taunt. 227. 506 ; Bottomley v. Bovill, 5 B. & C. (A) Soscow T. Corson, 8 Taunt. 684. 210 ; Soares t. Thornton, 7 Taunt. 627. Vide Dixon v. Seed, 5 B. & Aid. 697. (y) Ross v. Hunter, 4 T. R. 33. (c) Fer Sutler, J., in. Bossy. Sunter, (A) Stamma v. Brown, 2 Str. 1173; 4 T. R. 38. Nutt V. Bordieu, 1 T. R. 323. {d) Per Lee, C. J., Stamma v. Brown, (i) Jones \. Niehohonj 10 Ex. 28. pited7T. R. atp. 608; perLord.Sito!- {k) Nutt v. Bordieu, 1 T. R. 323; iorough, Earle v. Soweroft, 8 East, 126 ; Stamma v. Brown, 2 Str. 1173. MARITIME INSUKANCE. 431 tbe owner »ro h&c vice (I) ; nor against the owners with the con- The poKoy— ,.—.,■,■, , J. T_ it'* form and sent of the freighter (w). But though an act cannot be conBtruotion. barratrous against the owner, if it be done with his consent, yet an act done for Ms hcneflt, if without his consent, may. Thus, where the master, having general instructions to make the best piu'chases with despatch, went to an enemy's port and traded there, for which his ship was seized, this was held barratry, although his only object was to do the best for his employer («) ; for it is not for him to judge in cases not entrusted to his dis- cretion, or to suppose that he is not breaking the trust reposed in him, but acting meritoriously, when he endearours to advance the interest of his owners by means which the law forbids, and which his owners must be taken also to have forbidden, both from their sense of public duty and their dread of risk. It is not necessary that the loss should be contemporaneous with the barratry ; but the barratry must happen during the voyage in- sured (o), and must be the immediate cause of the loss (jo). Thus, when the master, during the voyage, committed barratry by smuggling, for which the ship was seized, but not till after she had been moored twenty-four hours in safety at her des- tined port, the underwriter was held to be discharged. Other Perils. — These general words are inserted, as MoUoy remarks, to preclude all those nice questions formerly agitated by civilians and common lawyers, and may be useful where the loss, though one against which the assured ought to be indemni- fied, does not fall within any of the other classes specified in the policy. The first case in which the effect of these words came directly into question was Cullen v. Butler {q), where the crew of a British ship, believing the ship insured to be an enemy, fired {/) Yallejo V. Whaler, Cowp. U3 ; (») Eark v. Soweroft, 8 East, 126. Soarea v. Thornton, 7 Taunt. 627 ; and See Moss v. Byrom, 6 T. R. 379 ; Hnnnen, J., in loitides v. Fendw, 1 Asp. Wilson v. Sanlein, L. B. 1 Q. B. 162. M. C. 432. (o) Lockyer v. Offley, 1 T. K. 252 ; (;«) In Hobhs v. Bannam, 3 Camp. Powell v. Hyde, 5 E. & B. 607. 93, Lord Elknborough held that it {p) Cory v. .Bmjt, 8 App. Gas. 393. could not; Soutfloioer v. Wilmer, Sel. (?) 6 M. & S. 461. And see Palmer N. P. 903, 13th ed. v. Nayhr, 10 Exch. 382. 432 MERCANTILE CONTRACTS. The policy— upon and BTink her. It was held that though, perhaps, not a its form and • i • t i i construction. " peril of the seas," this loss came within the general words " all other perils, &c." Lord Elknborough, C. J., in delivering judgment, said — That as these general words " must he considered as introduced into the policy in furtherance of the objects of marine insurance, and may have the efBect of extending a reasonable indemnity to many cases not distinctly covered by the special words, they are entitled to be considered as material and operative words, and to have the due effect assigned to them in the construction of the in- strument ; and which will be done by allowing them to comprehend and cover other cases of marine damage of the like kind with those which are specially enumerated and occasioned hy similar causes." And the House of Lords, in the recent case of Thames and Mersey Mar. Ins. Co. v. Hamilton, Fraser 8f Co. (r), in which the previous authorities are reviewed, adopts this as the true rule of construction. The question was, whether damage to a donkey engine owing to the closing of a valve by the negligence of the engineer, or accidentally, fell within the general words. The House of Lords held that it did not. " The damage to the donkey engine" said Lord JBramwell, " was not through its being in a ship, or at sea. . . . The sea, waves, and winds had nothing to do with it." The question, said Lord Herschell, referring to Cullen v. Butler [s), is, — " whether the loss faUs within the general words, as construed by Lord EUenborough ; that is, whether it is a case ' of marine damage of the hke kind with those which are specially enumerated, and occasioned by similar causes.' " "Where the captain of a ship had thrown a quantity of dollars overboard to prevent their falling into the hands of an enemy, by whom the ship was pursued, this was held to be a loss, if not [r) 12 App. Cap. 484. (s) Supra. MARITIMK INSUKANCE. 43:i by jettison, at least ejusdem generis with jettison, and, therefore. The policy— within the general words (m). Where a ship, placed in a gray- construction. ing dock to be repaired, was, by the violence of the wind, thrown over on her side and bilged, this loss was held to be within the general words (ar). The perils and losses mentioned in the poUcy having been thus separately considered, there remain a few general observa- tions on this part of the contract. First, the underwriters are not liable for a loss which is neces- sarily incidental to the property, rather than occasioned by an adventitious cause (y), such as loss by decomposition, as of meat, fruit, flour (a), by worms (a), or rats {b), or the self -ignition of damaged hemp (c), or natural decay or deterioration. Secondly, there is a class of losses which seems not to fall within the contemplation of the policy, but only to entitle the loser to be reimbursed by the owner of the ship {d) ; as, for instance, where the captain is obliged to sell part of the goods for the repair of ship (e). Thirdly, in policies on freight, it has been held, that if the goods laden still exist, and the ship continue capable of carrying them, the underwriter is not liable, although the master sell or leave them behind on account of the great expense which would attend carrying them forward ; for though he may in doing so have exercised a prudent discretion, yet it would be dangerous to allow him, by any exercise of his discretion, to cast the loss of freight from the shoulders of his owner on those of the under- writer (/). But it has been since decided, that when the goods (») Butler V. WiUman, 3 B. & Aid. 388—392 ; Taylm- v. Dunbar, L. R. 4 398. C. P. 206. (x) Fhillipa v. Barber, 6 B. & Aid. (a) Sohl y. Parr, 1 Esp. Hi. 161. Aocoid. Devaux v. VAnaon, 5 (J) Hunter v. Potts, 4 Gamp. 203. Bing. N. C. fil9. But query as to the (c) Boyd v. Dubois, 3 Camp. 133. decision in the latter case. See Thames (rf) See judgment of Bayley, J., and and Mersey Ins. Co. v. Hamilton, Prater, Abbott, J. , in Powell y. Gudgeon, 5 M. # Co., supra; Davidson v. Bumand, & S. 431. L. R. 4C. P. 117; Butler Y.Wildman, I/) Powell v. Gudgeon, uhi supra; 3 B. & Aid. 398. Sarquy v. Hobson, 2 B. & C. 7 ; Atkin- (y) Pawcus V. Sarsfield, 6 E. & B. son v. Stephens, 7 Exch. 567. 192. ' (/) Mordy t. Jones, 4 B. & C. 394 ; (s) 1 Emerigon, c. xii. s. 9, pp. Brocklebank v. Siignie, 1 M. & Rob. s. — vor,. I. F F 434 MERCANTILE CONTRACTS. The policy— are SO damaged by a peril of the sea in the course of the voyage construotion. as to render them incapahle, except at a cost which would exceed their value on arrival, of heing carried to their destination, and they are, therefore, left behind at an intermediate port, the assured may recover for loss of freight (g). Fourthly, a loss is properly ascribed to a particular peril, if that peril be the immediate cause of the loss, though another cause may have contributed; as where a merchant vessel was taken in tow by a ship of war, and thus exposed to a tempes- tuous sea {h), this loss was properly ascribed to the perils of the sea ; so where an enemy chases the ship and takes her, the loss is one by capture, though that enemy would not have overtaken her had not her rate of sailing been checked by sea damage (»). In these and many other instances {k) the maxim equally applies " injure causa proccitna non remota spectatur " (/). Thus, where a vessel in consequence of the barratry of the master in smuggling was seized by Spanish revenue ofiBcers, with a view to procure her condemnation and confiscation, the loss to the owner was held to be due to " capture and seizure," and not -to the "bar- ratry" of the master (m). A ship was chartered for time on monthly hire, with a proviso that, if at any time the ship became inefficient, the charterers might put her out of pay ; the 102. See FhilpoU v. Svxmn, 11 C. B. (») Livie v. Jamm, 12 East, 648, N. S. 281 ; Blasco v. Fletcher, 14 0. per Lord Mlenborough ; Green t. Ehm- B. N. S. 147. lie, 1 Peake, 278. (^) Michael v. Gillespy, 2 0. B. N. S. (A) See Hcmn v. Corhett, 2 Bing. 627. The question would seem to te, i^ib ; Montoya y . London Assurance Co., not whether it is physically but com- 6 Exoh. 461 ; lonides v. The Universal mereially practicable to put them ia a Marine Insurance Co., 14 C. B. N. S. state to be carried forward ; and see 259 ; Dent v. Smith, L. E. 4 Q. B. Grainger y. Martin, 4 B. & S. 9. 414 ; Xwos v. Jok, L. R. 4 C. P. 665 j The expense of carrying the goods Mercantile Steamship Co. t. Tyser, 7 Q. forward is a particular charge, which B. D. 73. may be recovered under the suing and (l) Greer v. Poole, 5 Q. B. D. 272 ; labouring clause if the expenses are JDe Vaux v. Salvador, 4 Ad. & E. incurred by the insured. Kidston v. 420. The Empire M. I. Co., L. E. 2 0. P. (m) Cory v. Burr, 8 App. Cas. 393, 357 ; Aitchison v. Lohre, 4 App. Cas. where Lord Blackburn, at p. 398, dis- 755. sents from the statement in Amould (A) Eagedorn v. Whitmore, 1 Stark. on Insurance that barratry is an ex- ^^T- ' ception to the principle that the proxi- mate cause is to be looked at. MARITIME INSURANCE. 435 ship having become inefficient by perils of the sea, the charterers The poHcy— refused to pay further freight ; the loss of freight by the owner construction. was attributed to the exercise of the option by the charterers, and not to " perils of the sea " («). It is sometimes said that there is a difference as to this maxim between cases of bills of lading and policies of insurance. How far this is so, is explained in the judgment of Lord Merschell in The Xantho (p) : " Now, I quite agree that in the case of a marine policy the causa proxima is alone considered. If that which immediately caused the loss was a peril of the sea, it matters not how it was induced, even if it were by the negligence of those navigating the vessel. It is equally clear that in the case of a bill of lading you may sometimes look behind the immediate cause, and the shipowner is not protected by the exception of perils of the sea in every case in which he will be entitled to recover on his policy, on the ground that there has been a loss by such perils. But I do not think that this difference arises from the words ' perils of the sea ' having a different meaning in the two instruments, but from the context or general scope and purpose of the contract of carriage, excluding, in certain cases, the operation of the exception. It would, in my opinion, be very objectionable, unless well-settled authority compelled it, to give a different mean- ing to the same words occurring in two maritime instruments. The true view appears to me to be presented hy Willes, J., in his judg- ment in Grill v. General Iron Screw Collier Co. (p). The question there arose whether, when a vessel was lost by a collision caused by the negligence of those navigating the carrying ship, the case fell within the exception of ' perils of the sea.' It was held that it did not. Eeference having been made to cases on policies of insur- ance, and the interpretation there put upon these words, Willes, J., said : ' I may say that a policy of insurance is an absolute contract to indemnify for loss by perils of the sea, and it is only necessary to see whether the loss comes within the terms of the contract, and is caused by perils of the sea ; the fact that the loss is partly caused by things not distinctly perils of the sea, does not prevent its coming within the contract. In the case of a bill of lading it is different, because there the contract is to carry with reasonable care, unless prevented by the excepted perils. If the goods are not carried with reasonable care, and are consequently lost by perils of the sea, it becomes necessary to reconcile the two parts of the instrument, and (») Inman S.S. Co. v. Biachof, 1 (o) 12 App. Cas. 603, at p. 510. App. Cas. 670. (p) L. E. 1 C. P. 600. at p. Oil. T ¥ 2 i'\() MERCANTILE CONTRACTS. The policy— this is done by holding that if the loss through perils of the sea is its form and caused by the previous default of the shipowner, he is liable for — 1- this breach of his covenant.'" Fifthly, when two causes contribute equally to the loss it may be ascribed to either. Thus, if a ship be barratrously delivered to the enemy, the loss may be ascribed either to barratry or capture (q), as, in the case of Hagedorn v. Whitmore above cited, it probably might have been to seizure and detention, as well as to the perils of the sea. Where two causes, however, both eon- tribute to the loss, but unequally, the maxim " in jure causa proxima non remota spectatur " applies. And if the proximate .cause of the loss be not reducible to some one of the perils mentioned in the policy, the underwriters will not be chargeable with it. For instance, if the. vessel insured be driven against another ship by stress of weather, this is an injury by perils of the sea, and the insurer must make it good. But, if in the collision she do some damage to the other ship, a positive rule of the Court of Admiralty prescribes that the loss sustained by both shall be added together and the aggregate equally divided. Now, in this case, if the ship insured have done more damage than she has received, and her owners are, therefore, obliged to pay the balance, this is neither a necessary nor proximate effect of the perils of the sea ; it grows out of a provision of the law of nations, and cannot be charged upon the underwriters (>•). In consequence of the decision in Be Vaux v. Salvador (y), what is known as the running-down clause, providing for the con- tingency of collisions, was introduced into policies (s). Date and Subscrijition. — The date and subscription, including a receipt for the premium, are inserted as follows: "And so we, the assurers, are contented, and do hereby promise and bind ourselves each one for his own part, our heirs, executors, and (?) Aremigeh v. Thompson, 2 Camp. Palmer v. Naylor, 10 Exoh. 382. 620 ; Touhnin v. Anderson, 1 Taunt. (»•) De Vaux v Salvador, 4 Ad. & E. 227 ; Sucks v. Thornton, 1 Holt, 30 ; 420. See 7 App. Cas. at p. 686, per lonides v. X/niversal Marine Insurance Lord Blaekburn ; Greer v. Poole, 5 Co., 32 L. J. C. P. 170. And see Q. B, D. 272. Butter V. WMman, 3 B. & Aid. 398 : (s) Xenoa v. Fox, L. E. 4 0. P. 665. MAKITI.MK 1^SURAXCK. "J-Sr goods, to the assured, their executors, administrators, and The policy- assigns, for the true performance of the premises, confessing construction, ourselves paid the consideration due unto us for this assurance, by the assured, at and after the rate of . In witness whereof we, the assurers, have suhsoribed our names and sums assured in ." The insertion of the amount of the premium is not now {t) essential, but is usual, and the acknowledgment of receipt therein contained has been held conclusive between the assured and insurer in the absence of fraud («). The insertion of the amount insured is required by the statute 30 & 31 Vict. c. 23, s. 7, and, in practice, the underwriter also usually annexes the date to his subscription. The same enactment requires the names of the subscribers and underwriters to be specified in or upon the policy {x). With this provision a subscription in the name of a firm or company is a sufficient compliance (y). If the policy be executed by the underwriter as a binding instrument, there need not be a complete delivery of it to the assiired(s). Valuation Clause. — If the clause in the form as to value (a) is not filled up, it is an open policy. If it is filled up, it is a valued policy, and the valuation is, as we have seen, conclusive in the absence of fraud {b) . Suing and Labouring Clause. — The suing and labouring clause provides that " in case of any loss or misfortune, it shall be lawful to the assured, then* factors, servants, and assigns, to sue, labour, and travel, in, for, and about the defence, safe- guard, and recovery of the said goods, and merchandizes, and (<) 30 & 31 Vict. u. 23, 8. 3, repeal- {x) 30 & 31 Vict. u. 23, s. 7 ; In He ing 35 Geo. 3, v. 63. Arthur Average Assoeiation, L. E. 10 («) Dalsell V. Mair, 1 Camp. 532. Ch. 642. See Foy v. Sell, 3 Taunt. 493 ; De (y) Held v. Allan, i Exoh. 326 ; Gaminde v. Pigou, 4 Taunt. 246 ; Hallett v. Sowdall, 18 Q. B. 2. Mttvor V. Simeon, 3 Taunt. 497 ; An- (z) Xenosr. Wiekham, L. R. 2 H. L. derson v. Thornton, 8 Exoh. 425. In 296. the last case the premium was proved («) -4«atton, 9 East, 351, on the same B. 44. poUoy, cited Seed v. Deere, 7 B. & C. (i) Fer lioii Tenterdm in Sroeklebank 261. v. Siigrue, 1 B. & Ad. at p. 88. («) SawUU v. Loudon, 5 Taunt. 369. (i) Kensington v. Inglis, 8 East, 273 ; See Sobimon v. Touray, 1 M. & S. 217 ; Muhhard v. Jackson, post. Kershaw t. Oox, 3 Esp. 246 ; Byrom v. (i) Weir Y. Aberdeen, 2 B. & Aid. Thompson, 11 Ad. & E. 31 ; Cariss v. 320. Tattersall, 2 M. & G. 890. (»») mu V. PrUten, 8 East, 373, cited (o) Hubbard \. Jackson, 4 Taunt. 169. MARITIME INSURANCE. 445 nor did the alteration of a voyage from " Stockholm to Swine- The policy— munde," to one " from Stockholme to Swinemunde, Konigsherg, construction, or Memel"(p); nor of a risk "at and from Liverpool to Quehec," to one "from Liverpool to St. John's, New Bruns- wick" (g). The rate of stamp duty payable on policies of marine insur- ance is regulated by the same statute, 30 & 31 Vict. c. 23 (r). Warranties. — We now pass to the consideration of war- ranties. "A warranty in a policy of insurance is a condition or a contin- gency, and unless that be performed there is no contract. It is perfectly immaterial for what purpose it was iatroduced ; but, being inserted, the contract does not exist unless it be literally complied with " (s). In this necessity for a literal compliance, it differs from a representation, which it is sufficient to perform substantially. Warranties are either express — i. e., appearing in the body or margin {t), or at the bottom (m) of the policy, or in some writ- ing, which is by reference incorporated with it (*) — or implied, i. e., understood to exist in every policy unless expressly nega- tived. Anything may, of course, be expressly warranted ; but those things which are most usually so are — 1. The time of sailing. 2. The safety of the ship at a particular time. 3. That she shall depart with convoy. 4. That the property is neutral. 6. Freedom from seizure in port. Let us consider these in order. [p) Smminm v. Bell, 6 M. & S. 267. 4U. (}) Brochkbank v. Sugrue, I B. & {t) Bean v. Stupart, Dougl. 11 ; J)e Ad. 81. ffahn v. Hartley, 1 T. E. 343. (r) As to the meaning of "sea {u) Bhckhurst\.Cockell,S1!.'R.zm. insurance" in this enactment, see (x) WoraleijY. TFood, 6 T. E. 710; 47 & 48 Vict. 0. 62, s. 8. Soutledge v. Burrell, 1 H. Bl. 254 ; (a) JDeHahn- and were accordingly sold, and the facts of the loss and the sale were made known at the same time to the assured. Neither h& nor the underwriters could at that time exercise any control over them, or by any interference alter the consequences. It appears to us, therefore, that this is not the case of what has been called a constructive loss, but of an absolute total loss of the goods. They never could arrive, and at the same moment when the intelligence of the loss arrived all speculation was at an end" (a;). In Moux Y. Salvador, also, the Excliequer Chamber distinctly indicated the instances in which notice of abandonment must be given, in these words : — " But there are intermediate cases, — there may be a capture, which, though ^nmd_/oc«e a total loss, may be followed by a re- capture, which would re-vest the property in. the assured. There may be a forcible detention, which may speedily terminate, or may last so long as to end in the impossibility of bringing the ship or the goods to their destination. There may be some other peril, which renders the ship unnavigable without any reasonable hope of repair (y), or by which the goods are partly lost, or so damaged that they are not worth the expense of bringing them, or what remains of them, to their destination (2). In all these, or any similar cases, if a prudent man, not insiu-ed, would decline any further expense in prosecuting an adventure, the termination of which will probably never be successfully accomplished, a party insured may, for his own benefit as well as that of the underwriter, treat the case as one of a total loss, and demand the full sum insured (o). But if he elects to do this, as the thing insured, or a portion of it, still exists and is vested in him, the very principle of the indemnity requires (i) that he should make a cession of all his right to the recovery of it, and that, too^ within a reasonable time after he receives the intelligence of the accident, that the under- (x) Eoux V. Salvador, 3 Bing. N. C. Mei/er v. Salli, 1 0. P. D. 358. at pp. 279, 281. [a) Coasman v. West, 13 App. Cas. (y) Kniffht V. Faith, 15 Q. B. 649. 160, at p. 169. He need not do so; See Mnff v. Walker, 3 H. & 0. 209. lie may repair, and claim for a partial (z) See Heimer v. Mingrose, 6 Exoh. loss : Pitman y. Universal Insurance Co., 263; Mosetto v. Gurney, 11 C. B. 17C; 9 Q. B. D. 544. Farnxvorth v. Hyde, 18 C. B. N. S. (J) Fleming v. Smith, 1 H. L., Ca. 835 ; L. R. 2 C. P. 204 ; and compare 613 ; Losano v. Janson, 2 E. & E. 160. MARITIME INSURANCE. 467 writer may be entitled to all the benefit of what may still be of any Results of value, and that he may, if he pleases, take measures at his own cost contract. for realising or increasing that value. In all these cases not only the thing assured, or part of it, is supposed to exist in specie, but there is a possibility, however remote, of its arriving at its destina- tion, or at least of its value being in some way affected by the measures that may be adopted for the recovery or preservation of it. If the assured prefers the chance of any advantage that may result to him beyond the value insured, he is at liberty to do so (c) ; but . then he must also abide the risk of the arrival of the thing insured in such a state as to entitle him to no more than a partial loss " (d). Consequently, if there be nothing to cede of which the insurer can avail himself, notice of abandonment is unnecessary (e) ; but, if " the thing insured subsists in specie, and there , is a chance of its recovery, there must be an abandonment {i. e., notice of abandonment) " (/). When the loss is not total per se, the right to abandon depends on its amount. The doctrine formerly held on this subject was, as succinctly stated in 2 "Wms. Saund. 203 c, note 19, that, when the voyage was lost, or the expense of pursuing it exceeded the benefit arising from it, and, therefore, it was not worth pursuing, in such case the insured might abandon (gi). But this doctrine is narrowed by later de- cisions (A), and it does not seem possible to imagine a case in which the loss of the voyage, independently of some great jeopardy affecting the subject-matter of insurance, would entitle (c) SeePitmcni v. Universal Ins. Co., Sunt y. Roy. Mx. Assurance, 6 H. & S. supra. at p. 56. (rf) Boux V. Salvador, 3 Bing'. N. C. (g) Irving v. Manning, 1 H. L. Ca. at p. 286. 287. («) Rankin v. Potter, L. R. 6 H. L. (A) Anderson v. Wallis, 2 M. & S. 83. 240; Falkner v. Ritchie, Id. at p. 293 (/) Roux V. Salvador, 3 Bing. N. 0. Naylor v. Taylor, 9 B. & C. 718 at p. 287, citing Mellish v. Andrews, Thomeley v. Meison, 2 B. & Aid. 513 15 East, 13, per Lord Ellenborougk. Rainbridge v. Neilson, 10 East, 329 See, as to a sale of the ship Cobequid, M. Rrotherston v. Barber, 6 M. & S. 419. /. Co. v. Barteaux, L. E. 6 P. C. 319, As to whether a constructive total loss ante. As to the case of cargo being has been excluded by the bye-laws of landed, owing to sea damage to carry- an insurance company incorporated in ing ship, at a place where no ship a policy, see Forwood v. N. Wales Ins. could be got to forward the cargo, see Co., 9 Q. B. D. 732. Hiia 468 MERCANTILE CONTRACTS, Eesults of the assured to abandon ( /) . The insurance is not on the voyage, J^i^^ tut on the ship for the voyage or the time specified {g). The test as to constructive loss of ship laid down by Story, J., in Peele v. The Merchants' Insurance Co. (h), is : — ' ' The right of abandonment has been admitted to exist where there is a forcible dispossession or ouster of the owner of the ship, as in cases of capture; where there is a moral restraint or detention which deprives the owner of the free iise of his ship, as in case of em- bargoes, blockades, and airests by sovereign authority (i) ; where there is a present total loss of the physical possession and use of the ship, as in case of submersion ; where there is a total loss of the ship from the voyage, as in case of shipwreck, so that the ship cannot be repaired for the voyage in the port where the disaster happens ; and, lastly, where the injury is so extensive that by reason of it the ship is useless, and yet the necessary repairs would exceed her present value." In determining what is a constructive total loss of goods, the question appears to be whether, after expending money in tran- shipping, drying, &c., the goods could have been sent to the port of destination at less than their selling value on arrival (/,). In cases in which the law requires an abandonment, " not only the thing assured or part of it is supposed to exist in specie, but there is a possibility, however remote, of its arriving at its destination, or at least of its value being in some way affected (/) EoUsworth v. Wise, 7 B. & C. Id.ll6; Ji!oi«ffeo«v.CTaj-fe,lBing.44S 794 ; Benson v. Chapmm, 2 H. L. Ca. Freeman v. E. I. Co., 5 B. & Aid. 617 696; Parry y. Aberdein,9'B. &.O. ill; Morris v. Bohinson, 3 B. & C. 196 M'lver V. Henderson, 4 M. & S. 576 ; Sudson v. Sa/rrison, 3 B. & B. 97 V. L. A. Co., 5 M. & S. 447 ; Underwood v. Mohertson, 4 Camp. 138 Dixon \. Seid, 5 B. & Aid. 597 ; Gemon Hodocanachi v. Elliott, L. E. 8 C. P. V. S. E. A. Co., 6 Taunt. 381 ; Idle v. 649 ; 9 C. P. 518. E. E. A. Co., 8 Taunt. 765 ; Read v. (y) Phillips on Insurance, s. 1522. Bonham, 3 B. & B. 147 ; Meaboume v. (h) 3 Mason, 27 at p. 65, cited in 2 Leehiey 4 D. & R. 207 ; Cambridge Arnould, 6th ed. 1068. v. Anderton, 2 B. & C. 691 ; Sobertson (i) " If of long or uncertain dura- V. Clarice, 1 Bing. 445; Robertson v. tion" ought to be added: Foster v. Carruthers, 2 Stark. 671; Reimer v. Christie, II East, 20b. Ringrose, 6 Exch. 263; Rosetto v. Gur- [j) Rosetto v. Gurnet/, 11 C. B. 188; nej/, 11 C. B. 176. And see Smith y. Famworthy. Hyde, L. R. 2 C. P. 204; Robertson, 2 Dow, 474 ; Boyle v. Dallas, 2 Amould, 6th ed. 1064. 1 M. & Rob. 48 ; Gardner v. Salvador, MARITIME INSUKANCE. 469 by the measures that may he adopted for the recovery or pre- Results of servation of it " {k). — '— — In Young v. Turing (l), in which notice of abandonment had been given, the ship was cast away upon the Groodwin Sands, but might have been re-fitted. The Lord Chief Justice of the Common Pleas told the jury that they were to say whether, imder all the circumstances attending the ship (among which was her national character), a man of prudence and discretion uninsured would have repaired her or not ; that, if he woidd, the loss was j^ortial; if he would not, total. And that, in deter- mining this question, they were to take as the value of the ship her real value, not the sum at which she was valued in the policy {m) . This direction was upheld by the Exchequer Chamber, and in a similar case received the sanction of the House of Lords («). This question is not to be decided by the result, but should be confined to the spot and time of the commencement of the repairs : and the jury should say whether, when the repairs were commenced, the owner, if on the spot and uninsured, and acting prudently, would not have repaired; for it may be that, as the repairs went on, the defects proved to be greater than was originally supposed ; and that it was then worth while to incur a still greater expenditure rather than sell the ship par- tially repaired, and lose the benefit of the sum already laid out (o). And even if the owner be entitled to abandon, yet if the captain, having repaired injudiciously, prosecute the adven- ture, and earn the freight, though it be swallowed up by a bottomry bond, the underwriters on freight are not liable for it, inasmuch as it has not in fact been lost (p). (k) Per our. in Itoux v. Salvador, 3 Insurance Co., 9 Q. B. D. at p. 201. Bing. N. 0. at pp. 286, 287 ; and see («) Irving v. Manning, 1 H. L. Ca. Fleming v. Smith, 1 H. L. Ca. 613 ; 287. And see Moss v. Stnith, 9 C. B. Seimer v. Ringroae, 6 Ezch. 263 ; 94 ; and as to ships of an exceptional Mellish V. Andrews, 15 East, 13 ; and character, Tlie African S. S. Co. v. Mullett V. Shedden, 13 East, 304; 2 Suianzy, 2 K. & J. 660; Grainger v. Amould, 6th ed. 1058. Martin, 2 B. & S. 456 ; 4 B. & S. 9. {I) 2 M. & G. 593. See also Irving ip) Benson v. Chapman, 2 H. L. Cas. y. Manning, 1 H. L. Ca. 287; King 696; aad. Eankin-r. Potter, lu.'R. &'B.. v. Walker, 3 H. & C. 209. L. 83. (»i) See Pitiiian v. Unircrsot Marine {p) Benson v. Chapman, 2 H. L. Cas. 470 MERCANTILE CONTKACTS. Eesults of When the msured are entitled to abandon, and think proper contract. ^^^^ ^j^^^ ^^^ ^ ^^ ^^^^ ohliged) to do so, they must give notice of ahandonment within a reasonable time (o). However, it is sufficient if notice be given within a reasonable time after the insured have received intelHgenee of the loss, and had an oppor- timity of ascertaining the extent of damage (p). ' ' The law that has been laid down is, that immediately the assured has reliable information of such damage to the subject-matter of insurance as that there is imminent danger of its becoming a total loss, then he must at once, unless there is some reason to the con- trary, give notice of abandonment; but if the information which he first receives is not sufficient to enable him to say whether there is that imminent danger, then he has a reasonable time to acquire full information as to the state and nature of the damage done to the ship" (5). Notice of abandonment need not be given to the underwriters of a policy of re-insurance («•). An abandonment cannot be partial : it must be of the whole thing insured, unless in effect there are separate insurances of particular articles or parcels (s). It mu^t also be unconditional, at least, unless the underwriter think proper to accept a conditional one (t). It must be express, too, and positive, though the word " abandon" neednot be used (m). Arequest to the underwriterto give directions for the disposition of the effects insured, and to settle for a total loss, was in one case held not sufficient (»). 696. Compare Smkm v. Fatter, L. R. D. at p. 473, per Srett, L. J. 6II.'L. 83. (c) Jlzielliv. Boston Marine Insurance (o) Mitchell T. Edie, 1 T. E. 608 ; Go., 15 Q. B. D. 11. Sunt T. B. E. A. Co., 5 M. & S. 47 ; («) Park, 229 ; Marsh. 486, 4th ed. ;, Fatter v. RmUn, L. E. 3 0. P. 562 ; 5 2 Amoiild., 95S. C. P. 341 ; 6 H. L. 83 ; Mellish v. {t) M'Masters v. Shoolbred, 1 Esp. Andrews, 15 East, 13 ; Allwood v. 237. Senokell, Park, 280 ; Fleming v. Smith, [u) Currie v. Bombay Native Insur- 1 H. L. Ca. 513 ; Stringer v. English ance Co., L. E. 3 P. C. 72, at p. 79, and Scotch Ins. Co., L. E. 4 Q. B. 676. dissenting from Lord ElleniorougVs 5 Q. B. 599. remarks in Farm^ter v. Todhunter, 1 [p] Read v. Bonhmn, 3 B. & B. 147 ; Camp. 541. Gernon v. if. E. A. Co., Holt, 49; 6 (») Farmeter v. Todhunter, 1 Camp. Tamit. 383. And see King v. Walker, 541 (disapproved of in Cm»-)-!« t. Bomlay 3 H. & C. 209. Native Ins. Co., supra). See Da Costa {(j) Kalteniaoh v. Mackensie, 3 0. P. v. Newnham, 2 T. E. 407; Bavelock MARITIME IKSURANCE. 471 But the underwriter may waive an informality in the notice Results of of abandonment by his aociuiesoence {w), though he will not '- . do this merely by lying by and making no objection to it; for he is not bound to signify his acceptance of an abandonment, though if he once accept it he becomes liable for a total loss {x). The abandonment may be by, parol (y) ; but it must be given by the assured or a person authorized by him to give it (s). Once given and accepted by the underwriter, a notice of abandonment is irrevocable («). Such acceptance maybe proved by words or conduct, and is, as a ruloj a question of fact {b). The effect of an abandonment is to divest the property of the thing abandoned out of the insured, and vest it in the insurer, for whom the former becomes a trustee (c). In CadelMn v. Preston {d), Brett, L. J., thus defines the extent of the insurer's right: "As between the underwriter and the assured, the underwriter is entitled to the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted upon, or already insisted on, or in any other right, whether by way of condition or otherwise, legal or equitable, which can be, or has been, exercised or has accrued ; and whether such right could or could not be enforced by the insurer in the name of the assured, by the exercise or acquiring of which right or condition the loss against which the assured is insured can be, or has been, diminished." Hence, freight which is actually earned, or which may be subsequently earned, passes to the insurer (e), though the in- V. Sockwood, 8 T. R. 268 ; Lockyer v. (a) Provincial Insurance Oo. v. Leduc, Offley, 1 T. R. 252 ; Thdlmson v. FM- L. R. 6 P. C. 224, 243. chcr, 1 Esp. 73. (A) See Shepha-dv. Sendenon, 7 ATpp. {■w) Mudaon v. Harrison, 3 B. & B. Cas. at p. 64 ; and Fleming v. Smith, 97. See Da Costa v. Newnham, 2 T. R. 1 H. L. 513. 407 ; Magedom v. Whitmore, I Stark. (c) Randall v. Cockran, 1 Ves. sen. 157. 98 ; Simpson v. Thompson, 3 App. Cas. (») Smith V. Robertson, 2 Dow, 474; 279; Bumand v Eodocanachi, 7 App. Provincial Insurance Co. of Canada v. Cas. 333. See Scottish Marine Insur- Leduc, L. R. 6 P. C. 224 ; Shepherd v. ance Co. v. Turner, 1 Maoq. H. L. Cas. Henderson, 7 App. Cas. 49 ; FletningY. at p. 342. Smith, 1 H. L. Ca. 513. (rf) 11 Q. B. D. 380, at p. 388. (y) Read v. JBonham, 3 B. & B. 147. (e) Steward v. Greenock Marine In- (s) Jardine v. Leathley, 3 B. & S. surance Co., 2 H. L. Cas. 159 ; Case 700. V. Davidson, 5 M. & S. 79 ; 2 B. & B. 472 MERCANTILE CONTKACIS. Results of surers, of course, receive only the balance remaining after • '- deductiag the necessary expenses iacurred by the assured in the preservation of the property abandoned (/). Damages recovered from the owners of the wrong-doiag ship for loss of freight not earned by reason of a collision (g), or freight earned by tran- shipping the cargo and conveying it in another vessel (h), do not pass to the insurer. The underwriters will be subrogated to no rights which the assurer had not. Thus («'), where two ships of the same owner came into collision, the underwriters of the vessel which was lost paid the insurance, and claimed to rank pari passu with the owners of cargo destroyed in the distribution of the fund lodged in Court. It was held that they had no such right under the circumstances of the case. " The right of the -underwriters," said Lord Cairns, L. C, " is merely to make such claim for damages as the insured himself could have made, and it is for this reason that they would have to make it in his name ; and if this be so, it cannot of course be made against the insured himself" (Jc). While the insurer is subrogated to the rights of the assured, he becomes subject to all liabilities as owner of the ship or goods; e.g., the liability to pay salvage reward or freight (/). The better opinion seems to be that the assured cannot, by abandonment, transfer to the underwriters ownership so as to subject them to subsequent liabilities against their immediate disclaimer of such transfer {m). It ought to be observed here, before quitting the head of total 379 ; Thompson v. Soweroft, i East, 6 H. L. at p. 100. 34 ; Sharp v. Gladstone, 7 East, 24. {/) Sharp y. Gladstone, 7 East, 24. See Miller y. Wood/all, 8 E. & B. 493. {g) Sea Insurance Co. v. Sadden, 13 Where the ship arrives at her destina- Q. B. D. 706. tion, so that freight is earned, hut (A) HieMe y. SodocanacM, 28 L. J. owing to the abandonment is lost to Ex. 273. the shipowner, the underwriters on (i) Simpson v. Thompson, 3 App. Cas. freight are not liable, because the 279. freight is lost by the abandonment, (A) Ibid, at p. 284. and not by a peril insured against : (?) Sharp y. Gladstone, 7 East, 24 ; Scottish Marine Insurance Co. y. Turner, Uakin v. Oxley, 33 L. J. C. P, US; 1 Maoq. H. L. Cas. 334. But see 2 Phillips, s. 1718. Sankin y. Potter, L. R. 3 C. P. at (m) 2 Phillips, s. 1726 ; 2 Amould, pp. o70, 571 ; 5 C. P. at p. 374 ; and 6th ed. p. 977. MARITIME INSUKANCE. 473 loss, that there may be a total loss of an integral portion of the Eesults of cargo. As where the insurance was on several hogsheads of '- sugar, and each hogshead was separately valued and insured, a loss of one of them was held to he a total loss of that hogs- head («) ; or where the insurance is general, but upon articles entirely different from each other (o). On the other hand, where a part of each hogshead was saved, the jury having stated their opinion that the loss was an average, the Court held them right in so doing (p) ; and where memorandum goods are shipped in distinct packages, but there is no separate valuation and insur- ance of each, the loss of several entire packages has been held by the Court of Exchequer Chamber to be an average one, and covered by the memorandum (q). The distinction between the two classes of cases is explained in that case and also in Hills v. London Assurance Corporation (r), where, a portion of a cargo of wheat shipped in bulk having been pumped out with water in foul weather and so lost, the loss was held only an average and not a total loss. It was laid down in Usher v. Koble («) that, in the case of an open policy, the invoice price of goods at the loading port, including premiums of insurance and commission, is the sum recoverable, and in the case of a ship its value at the outset of the voyage, plus outfit, stores and provisions, advance of wages, premium and charges of insurance (t). Partial Loss. — The term partial loss needs no explanation : it is, however, proper to remark, that a loss which was once total, may by matter ex post facto become a partial one. Thus, if a ship be captured, the loss is total, and no (») Lewis V. Sucker, 2 Burr. 1167 ; (p) Sedlurg v. Pearson, 7 Taunt. Smy V. Milford, 15 East, 659. See 164. Navoiie v. Haddon, 9 C. B. 30. (j) Salli v. Janson, 6 E. & B. 422 ; (o) Duffy. Mackenzie, 3 0. B. N. S. 16 Cator v. G. W. Ins. Co., L. R. 8 C. P. (policy upon "master's effects valued 552. See also Mitwisley. Mlis, 2 H. at lOO;., free from all average"; & N. 549. assured entitled to recover, on total (r) 5 M. feW. 669. And see ijoaetto loss of barometer, chronometer, &o., v. Gurney, 11 C. B. at p. 186. the effects lost). («) 12 East, p. 646. {<) Shawe v. Felton, 2 East, 109. 474 MERCANTILE CONTKACTS. Results of doubt, if she continue in the power of the enemy up to the time contrac ^£ bringing the action, the iasured may recover for a total loss. But if she escape, or be re-captured, so as to be still of value, that which was once a total loss becomes a partial one (m). So, when there is a policy on freight, and the ship is detained under an embargo, the loss is primd fack total : yet, if the embargo be taken off, and she afterwards earn freight, it becomes partial (»). With respect to the mode in which the sum to be paid by the imderwriter on account of a partial loss is calculated, if the damage was suffered by the ship, and has been repaired by the owner, he will not be allowed the full costs of repairing, hut (if the ship be not new) one-third is deducted in consideration of the benefit which he derives from new materials in lieu of old,(2/). If, however, the shipowner does not repair in case of a partial loss, and sells his ship during the continuance of the risk, the depreciation in value is the measure of the underwriter's liability (s). If the goods are damaged, the mode adopted is, to ascertain the difference between the gross proceeds of the goods on their arrival at their destined port, and what would have been their gross proceeds had they not been , injured. Then — as what would have been their gross proceeds if sound, is to their gross proceeds when damaged, so is their original value to a fourth quantity, which fourth quantity being subtracted from the original value, will give the sum to be paid by the under- writers (a). Thus, suppose the original value was 100/.; that the cargo, had it arrived safe at the end of its voyage, would have (m) 2 Wms. Saund. 203 b. n. 19 Baintridge v. Neilson, 10 East, 329 Brotheraton v. Barber, 5 M. & S. 418 Pirie v. Steele, 2 M. & Rob. 49, which excludes the new for the old deduction in cases of loss ooourring during the Patterson v. Sitchie, 4 M. & S. 393. ship's first voyage. («) Maearthy v. Abel, 6 East, 388 ; (a) This appears to be the eflEeot of Everth v. Smith, 2 M. & S. 278. But Pitman v. Universal Mar. Ins. Co., 9 see Fowl^ v. The E. ^ S. M. I. Co., 18 Q. B. D. 192. C. B. N. S. 818. (a) Vsher v. Noble, 12 Bast, 639 ; [y) Aitchison v. Zohre, 4 App, Cas. Johnson v. Sheddon, 2 East, 581 ; Lewis 755 ; Poingdestre v. S. E. A. Co., K. & v. Rueker, 2 Burr. 1167 ; Eurry v. iU. M. 378. See Da Costa v. Newnham, 2 E. A. Co., 3 B. & P. 308. T. R. 407. See the qualification in MAKITIME INSUltAXCE. 475 fetched 200^., but in its damaged state will fetch only 150/, ; Results of , contract. then as 200 : 150 : : 100 : to the sum required, which will, therefore, amount to 75/. ; subtracting 75/. from 100/, the original value, we obtain 25/. the estimated loss, which must be made good by the underwriter. The reason for adopt- ing the original value as the basis of this calculation is, that the insurance is a contract of indemnity, and the assured ought not to be allowed to make a profit by it, which he would do, if he were to receive any more than he originally paid. The mode of ascertaining the original value of the goods in the case of an open policy is, to take the invoice price at the loading port, and add to that all expenses till put on board, together with the premium of insurance and commission (6) ; these being both charges to which the insured has actually been put on account of the goods, in order to send them on the voyage. Whether a payment on the shipment of the goods can be added to their value, is a question as yet undecided (c). When the policy is a valued one, the parties have themselves agreed on the original value of the goods, and the standard is therefore adopted which they have fixed in the policy [d). If the policy be on freight, and open, which is uncommon, the usage is to calculate the loss upon the gross, not on the net, value (e). If, as is usual, the policy be valued, and there be a partial loss of freight, the underwriter pays upon the proportion of value in the policy which the part of the cargo for which freight would have been payable had the voyage terminated successfully bears to the full cargo (/). Should the policy be a continuing policy "as interest may appear," the assured, in the event of a partial loss, will recover the proportion of the loss to the total amount assured ; e.g., if (*) Zaitghoni v. Albmtt, 4 Taunt. See 12 East, 647 ; 6 C. B. 420. 511; Usher v. Noble, 12 East, 639; (e) Falmer y. Blaekium, 1 Biag. 61. Lewis V. Rucker, supra. {/) Tobin t. Harford (fuU cargo not [c) JFinter y. Haldiniand, 2 B. & landed), 17 C. B. N. S. 628 ; 34 L.J. 0. Ad. 649. P. 37 ; Denoon v. Some and Colonial (rf) Lewis V. Sucker, 2 Burr. 1167. Assurance Co., L. R. 7 C. P. 341. 476 MERCANTILE COKTRACIS. Results of the policy be for 12,000/. on barges, only 3,000/. to be covered °°° ^^ in any one barge, and goods to tbe value of 1,700/. be lost, the assurer will recover the proportion of the loss which 12,000/. bears to th'e value of goods afloat (g). Generally speakiag, where property, which has been partially deteriorated, is afterwards totally lost to the insured, and the previous deterioration thus becomes a matter of perfectindifferenoe to his interest, he cannot make it the ground of a claim upon the underwriter, for of what consequence is the intermediate condi- tion of the thing, if he be never to receive it again ? But there may be cases in which, though a prior damage be followed by a total loss, the assured may, nevertheless, have rights or claims in respect of that prior loss, which may not be extin- guished by the subsequent total loss {/>). Actual disbursements for repairs in fact made in consequence of injuries by perils of the seas, previous to the happening of the total loss, are of this description ; unless, indeed, they are more properly to be considered as covered by that authority, with which the assured, "their factors, servants, and assigns" («), are usually invested by the policy, of " suing, labouring, and travailing, &c., for, in, and about the defence, safeguard, and recovery of the property insured," in which case the amount of such disburse- ments might more properly be recovered as money paid for the underwriter, under the direction and allowance of this provision of the policy, than as a substantive average loss, to he added cumulatively to the amount of the total loss which is afterwards incurred (k). For such disbursements, if iacurred to prevent loss insured against, the underwriter is liable over and above the amoimt of his subscription (/). Salvage expenses and iff) Crowley v. Cohen, 3 B. & Ad. [k) See Kidston v. The Empire M. I. 478 ; compare Joyce v. Kmnard, L. R. Co., L. R. 1 C. P. 636 ; 2 C. P. 357 7 Q. B. 78, where the policy was con- Lee v. The Soutliern I. Co., L. E. 5 strued as if a fire poUoy. 0. P. 397 ; JDixon v. Whilworth, 4 C. P, (A) See Knight y. Faith, 16 Q B. D. 371 ; Aitehiaon r. Lohre, i App. 649 ; Udgett t. Secretm, L. E. 6 0. P. Cas. 765. 616. [1) Livie v. Jansen, 12 East, 648 {i) SeeUzielliv. £oatonMarineImur- Great Indian Peninsular Ry. Co. v, anee Co., 16 Q. B. D. 11. Saunders, 1 B. & S. 41 ; 2 B. & S. 266 MARITIME IKSTJKANCK. 477 general average are not within the siiing and labouring Results of clause (m) ; such expenses are not incurred by the assured or ! their agents. Section VI. — Proceedings after a Loss. Adjustment. — When a loss has taken place, unless the under- Proceedings writer can deny his liability to make it good, he usually proceeds '— to adjustment, which is the settling and ascertaining of the amount which the assured, after allowances and deductions are made, is entitled to receive under the policy, and fixing the proportion which each underwriter is liable to pay. Each underwriter pays only on the actual sum subscribed by him. Thus, if a policy for 1,000/. be subscribed by five underwriters for 200/. each, and the loss be one-fourth, viz., 250/., each underwriter contributes 50/. only (m). When the amount to be paid by each underwriter is settled the policy is indorsed with a memo- randum : — " Adjusted the loss on this policy at £ per cent." It is taken to the several underwriters, who aflBx their initials to the memorandum, and strike a pen through their subscrip- tions to the policy (o). The adjustment operates as an admis- sion of all the facts necessary to constitute the underwriter responsible {p), but it is not conclusive upon him. Though it is incumbent on an underwriter, who has once admitted his liability by an adjustment, to make out a strong case, yet, until actual payment {q) of the money, he may avail himself of any de;fence which the law or facts will furnish (r). If the underwriter contests his liability, he either relies upon the absence of some of ' the above-mentioned requisites to a contract of insurance, by alleging, for instance, that the insured (m) Aitehiaon v. Zohre, i App. Cas. herd v. Chewier, 1 Camp. 274 ; ' Luckie 755 ; compare Kidaton v. Mar. Ins. Co., v. Buahhy, 13 C. B. 864. L. R. 1 C. P. 535. (?) Silbie v. Lumley, 2 East, 469. (») 2 Amould, 6th ed. p. 928, note. {r) Herbert v. Champion, 1 Camp. (o) 2 Amould, 6th ed. 1091. 134 ; Be Garron v. Galbraith, {p) Mogers v. Maylor, Park, 194 ; Add. Ca. 37 ; note to Shepherd v. Christian v. Coombe, 2 Esp. 489 ; Shep- Chewier, cited ante. 478 MERCANTILE CONTRACTS. Proceedings IS an alien enemy, or that there is no legal subject-matter of after a loss. . j_i j_ j_i t • i- -l • » i insurance, e.g., that the policy is a wager policy ; or he insists that the risk never hegan, as, for instance, that the ship cleared out and sailed on a voyage different from that insured ; or that he has been discharged by a breach of warranty; e.g., by a deviation ; or he contends that the policy is vitiated by fraud, misrepresentation, or concealment on the part of the insured. AU these grounds of defence have been already treated of; except the last, on which we will now say a few words. It is essential that in all contracts of insurance the strictest good faith should be observed. For fraud, misrepresentation, or concealment of any material circumstance avoids the whole contract. Thus, if the underwriter assures a ship as on her voyage, which he privately knows to be arrived, the pohcy is void, and the assured may bring an action against him to recover back the premium («). So, if the assured or his agent (<) mis- represent or conceal any material fact relating to the property insured, the policy is void, and the insurer not liable («). When this takes place, the policy is vacated ah initio, and the underwriters may use it as a defence, though the loss have arisen from a cause VhoUy unconnected with the circumstance misrepresented or concealed [x). A misrepresentation of a material fact vitiates the poHcy, whether the party assert a thing he knows to be false or does not know to be true (y) or honestly under a mistake (2). A material misrepresentation, though honestly made, will void the policy {a). Nor need the loss be in any way connected with (») Carter v. JSoehm, 3 Burr, at p. {x) Per Zee, C. J., Seaman v. Fan- 1909. And an action lies against an nereau, Str. 1183. insurer for misrepresentation: Poniifex (1/) Maedowallv. ]i'rasei;'Do\ig.i60; V. £ignold, 3 M. & G-. 63. Chaurand v. Angcarstein, Peake, 43 ; [t) See Slachlum, Low f Co. v. Dufell v. Wilson, 1 Camp. 401 ; Sehn Vigors, post, p. 485. v. Siimess, 3 B. & S. 751. {«) Sivaz V. Geruaai, 6 Q. B. D. 222 ; (s) lonides v. The Faaijic F. ^ M. I. Carter v. Boehn, 1 W. Bl. 593; 3 Co., L. R. 6 Q. B. 674; 7 Q. B. 517; Burr. 1905 ; Middlewood v. Slakes, 7 compare Sivaz v. Gerussi, 6 Q. B. D. T. E. 162 ; miles v. Glover, 1 B. &P. 222. N. E. 14 ; Da Costa v. Scandret, 2 P. (o) Per WilUs, J., in Anderson v. Wms. 170. Facifio Fire Im. Co., L. R. 7 C. P. at p. 68. MARITIME INSUIf ANCE. 479 the misrepresentation to have this efFect(i). The misrepresen- Proceedings fl.f fiBT 9i loss tation will be of a material fact, if it consist of an assertion that — the ship was safe on a particular day, will sail at a particular time {r), or will sail in company, and carry a certain force (rf). A misrepresentation made to the first underwriter in a material point is considered as a misrepresentation to every one of the underwriters, for they are aU supposed to follow the first (c). But a misrepresentation made to any underwriter other than the first is not to be considered as made to subsequent under- writers (/) ; and the rule concerning the effect of a misrepre- sentation to the first is founded, it is said, more upon precedent than reason (g), and must be received with great qualifi- cation (h). If a representation be substantially true, that is sufficient, and in this respect it differs from a warranty, which must be literally complied with. Thus, where it was represented that the ship would carry twelve guns and twenty men, and she really carried nine guns and six swivels, and sixteen men and eleven boys, a force equal in amount to that represented, the policy was not avoided (i). Moreover, if the party who effects the policy do not make his assertion positively, but only as a matter of expectation and belief, it will be sufficient if he really believe it(k). As to concealment, it is as fatal to the poHoy as misrepresen- tation ; for insurance is a contract founded on speculation, and a knowledge of all the facts is necessary to enable the under- writer to calculate, and form a just estimate of the risk (/). (4) 1 Amould, 6th ed. p. 520. {») Pmvson v. Watson, Cowp. 785 ; (c) Roberts t. Fonnereau, Park, 286. Size v. Fletcher, Dougl. 289 ; Nonnen {d) Echvards v. Footner, 1 Camp. 530. v. Reid, 16 East, 176 ; Von Tungeln v. ' (e) Pawson v. Watson, Cowp. 785 ; Dubois, 2 Camp. 151 ; J)mt v. Smith, Barber v. Fletcher, Dougl. 306 ; Mars- L. E. i Q. B. 414. den T. Seid, 3 East, 573. (A) JBarber v. Fletcher, Dougl. 305 ; (/) Bell V. Carstairs, 2 Camp. 643; Mubbard-v. Glover, 3 Camp. 313; Bow- Brine y. Featherstone, 4 Taunt. 869. den v. Vaughan, 10 East, 415; Brine {g) Per Heath, J. , in Brine v. Feather- v. Featherstone, 4 Taunt. 869 ; Anderson stone. V. The Tacijic F. % M. I. Co., L. R. 7 (A) VeTliOTdFllenboroughxa Forester C. P. 65, 69. V. Fiffou, 1 M. &S. 13; 1 Amould, (/) Tate v. B^slop, U d.'B.'D. 368. 6th ed. 645. 480 MERCANTILE CONTRACTS. Proceedings Nor is it an excuse that the concealment was attributahle to a era osa. ^j^^ fraud Or neglect of an agent (m), or that the account con- cealed was false (o), or in no way referred to the suhsequent cause of loss (p), or was not concealed with a fraudulent design (q), nor does it matter whether it was known as a report or as a matter of positive intelligence (>•). But the concealment which vitiates a policy must he of a fact material to a just estimate of the risk (s) ; not necessarily a fact which would actually affect the risk, if it might reasonably influence a pru- dent underwriter in determining, according to the principles on which underwriters in practice act, whether he should accept the risk at all, and if so, at what price {t). Therefore, the main question respecting concealment almost always is, whether the fact concealed be a material one in this sense (m). Of this description have been held to be, — ^intelligence that the vessel about to be insured, or a ship like her, has been lost, or which induced the owner to fear that she may be so {x) ; information respecting the time or manner of her sailing which is material to the probability of her safety, such, for instance, as would show her to be a missing ship, or out of time, or that she had encountered bad weather, or that another ship, which sailed after her, had arrived first (y) ; intelligence that she had been met with in a leaky state (s), or had from some other cause sustained damage before the commencement of the risk {a) ; or («) Fitzherbert v. Mather, 1 T. R. {x) Da Costa v. Seandret, 2 P. Wma. 12; Pmidfoot v. Montefiore, L. R. 2 170. See 1 Show. 324; Blackburn, Q. B. 511 ; Slaekburn, Low f Co. r. Zoiv ^ Co. v. Vigors, 12 App. Cas. 531. Vigors, post, p. 483. (y) Mackintosh v. Marshall, 11 M. & (o) See lynch v. Hamiltm, 3 Taunt. W. 116 ; Kirby v. Smith, 1 B. & Aid. 37 ; Lynch v. Dunsford, 14 East, 494. 672 ; Bridges v. Bunter, 1 M. & S. 15 ; (p) Seaman v. Fonnereau, Str. 1183. Sawtell v. Loudun, 5 Taunt. 359 ; Elton (q) Morrison v. Universal Mar. Ins. v. Zarkins, 8 Bing. 198 ; Flkin v. Co.., L. R. 8 Ex. 40, 197. Janson, .13 M. & W. 655 ; Anderson v. [r) Burrell y. Bederley, 1 Holt, 283, Thornton, 8 Exch. 425. Gibhs, C. J. ; Bates t. Hewitt, L. E. 2 («) Lynch v. Samilton, 3 Taunt. 37 ; Q. B. 595. Xynch v. Dunsford, 14 East, 494. See (») Durrell v. Bederley, ubi supra. Westbury v. Aberdein, 2 M. & W. 267, [t) Sivaz V. Gerussi, 6 Q. B. D. 222 where another ship arrived which had (C. A.) ; Tate -v. Hyshp, supra. parted from the ship insured in a storm. («) lonides v. Fender, L. E. 9 Q. B. (a) Gladstone v. King, 1 M. & S. 35. 631 ; Uivaz v. Gerussi, supra. MARITIME IXSUKANCE. 481 that she is in danger of an attack, as if a man were to insure Proceedings a ship, knowing that enemies were lying in wait for her (b) ; the -^ '- — circumstance that in the case of a policy on goods, which included risk on lighters, the lightermen were released hy the assuree from liability as common carriers {c) ; the fact that the ship or goods are overvalued {d), or that the assured had, under a series of open policies, systematically undervalued the shipments, thereby concealing the fact that the earlier policies were more exhausted than appeared (e) . A merchant residing at Sydney shipped goods by the ship C. for England, and, by another ship that sailed after the ship C, wrote to an agent in England, desiring him, if he received that letter before the C. arrived, to wait for thirty days, in order to give every chance of her arrival, and then effect an insurance on the goods ; the letter was received, and the agent, having waited more than thirty days, employed a broker to effect an insurance, and handed the letter to him : the broker told the underwriter when the C. sailed, and when the letter ordering the insurance was written, but he did not state when it was received, nor the order to wait thirty days after the receipt of it before effecting an insurance. The 0. never arrived. In an action on the policy, no fraud was imputed to the plaintiff ; but the jury, being of opinion that a material part of the letter had been concealed, found a verdict for the defendant. It was held that the uncommunicated part of the letter was material, and the policy consequently void (/). The question of the materiality of the representation or con- cealment is, subject to the direction of the judge, exclusively for the jury((/). Whether the evidence of underwriters upon the question is admissible is not settled (h). (i) Carter v. Boehm, 3 Burr. 1905 ; (/) Richards v. Murdock, 10 B. & C. 1 W. Bl. 593 ; Beekwaite v. Nalgrove, 527. See Campbell v. liickarda, 5 B. & cited 3 Taunt. 41 ; Durrell v. Bederley, Ad. 840. 1 Holt, 283. (y) McDoteall v. Fraser, 1 Dougl. (c) Tate V. Sj/alop, 16 Q, B. D. 368. 260. (rf) lonides v. Pender, L. E. 9 Q. B. (A) See Campbell v. Richards, supra ; 531. 1 Amould, 6th ed. 592 ; Taylor on («) Eivan V. Gerussi, 6 Q. B. D. 222. Evidence, 8th ed. 1211. S. — VOL. I. I I 482 MEKCANTILE CONTRACTS. Pi-oceedings The rule respectinff concealment is confined to matters whioh after a loss. -,, , ^ , . ■ ■ lie ■within the private knowledge of the insured. He need not mention what the imderwriter knows («), or ought to know (J), — scientia utrimque par pares facit contrahentes. He need not mention general topics of speculation, — such as the difficulty of the voyage, the nature of the season, the probahility of Hghtning, hurricanes, and earthquakes, of danger from the ruptures of states, from war, and the various operations of war. Men argue differently from natural phenomena and political appearances, — they have different capacities, different degrees of knowledge, and different modes of thinking ; but the means of information are open alike to all — each professes to act from his own skill and sagacity, and therefore neither need communicate to the other the result of his individual judgment {h). The insured need not communicate the usage of trade, for the under- writer is supposed to know it {I); nor a fact which the under- writer may learn by the exercise of proper diligence (m). A communication in general terms not calcidated to convey the full truth to the insurer will not be sufficient. An omission to • communicate material facts wiU not be excused on the ground that the facts are known to the insurer, if his knowledge of them is not so particular and full as that of the assured, who ought to put the insurer in the same position as himself («). Though a London underwriter may prima facie be taken to know matters contained ia the shipping list at Lloyd's, yet if the insured makes a misrepresentation which may induce him (i) Gandy v. Adelaide Mar. Ins. Co., see Sates v. Hewitt, L. B. 2 Q. B. at L. E. 6 Q. B. 746. p. 611 ; Morrison \. Universal M.I. Co., (y) It must be a matter present to L. E. 8 Ex. 40, 197, overruling Friere Ms mind, not forgotten: Sates v. v. Woodhouse, 1 Holt, 572. -ffwto, L. R. 2 Q. B. 595, 606. («) Duer, 13, pt. 1, s. 13; Sun (h) Carter v. Soehm, 3 Burr. 1905. Mutual Ins. Co. v. Ocean Ins. Co., \T) Valkmee v Dewar, 1 Camp. 107 U. S. S. 0. (17 Otto), 483, at 603, custom in Ne-wfoundland fishery ; p. 610, whereit is suggested that " the Stewart v. Bell, 5 B. & Aid. 238. exaction of information in some in- (»«) Gandy Y. Adelaide Mar. Ins. Co., stances may be greater in a case of L. E. 6 Q. B. 746. But this does not re-insurance than as between the par- extend to the paper kno-wn as Lloyd's ties to an original insurance," [e.g., as list; Eltony. larkins, 8 Buig. 198; and totheoharaoterof theoriginalinsnred.) MAKITIME INSURANCE. 483 to neglect looking at the list, tlie policy is avoided; at all events, rroceedings unless the insured be able to show that he really did acquire a '— knowledge of the truth before subscribing the policy (o). The insured is not bound to communicate matter which forms an ingredient in a warranty, such, for instance, as that of sea- worthiness: thus, where the assured received a letter mentioning that the ship had been surveyed at Trinidad on account of hei- bad cJiaracter — but the survey which accompanied the letter gave the ship a good character — the concealment of this did not vacate the policy ; for the insured impliedly warranted the ship to be seaworthy, and it did not appear either that she was, or that he had reason to think that she was, otherwise Qj). If, after the broker has been instructed to effect a policy, his principal receive further intelligence, but the policy is effected before the principal can communicate it to the broker, the policy is valid, if the principal and broker appear to have acted with due diligence {q). And so, after the initialing of the slip, and before the execution of the policy, if the assured receive such intelligence, even although it be subject to ratification by the assured, for, according to the usage of underwriters, the initialed slip is binding in honour and good faith (r). " The time between the slip and the policy is not to be counted, and the latter relates back to the former" (s). In every case, the question, whether the non-communication of a fact vacates the policy, depends, as has before been said, upon the further question, whether that fact was a material one {t). Thus, in some cases, the time of the ship's sailing has been held immaterial (m). Nor need the insured state to the (o) Mackintosh v, Marshall, 11 M. & N. E. 151 ; Bechwith v. Sydehotham, 1 AV. 116. Camp. 116; TTeir v. Aberdein, 2 B. (p) Sayxoood v. Sodyers, 4 East, & Aid 320; Taylor v. Wilson, 15 'East, 590 ; Shoolhred v. Nutt, Park, 346. 324 ; Bell v. Bell, 2 Camp. 479 ; Carr (?) Wake V. Atty, 4 Taunt. 493. t. Montefiore, 6 B. & S. 408 ; Boyd v. (r) Cory v. Paton, L. R. 7 Q. B. Dubois, 3 Camp. 133. As to this last 304 ; 9 Q. B. 577 ; Lishman v. The case, see Carr \. Montefiore, 5 B. & S. Korlhem M. I. Co., L. B. 8 C. P. 216 ; at p. 403. 10 C. P. 179. See ante, p. 408. (m) Fort v. Lee, 3 Taunt. 381 ; FoUy (s) Per Bramwell, B., in Lishman v. v. Moline, 5 Taunt. 430. But see iVo)V/»o« Co., L.E. IOC. P. at p. 181. Bridges v. Sunter, 1 M. & S. 15; [t) See LittUdaU v. Dixon, 1 B. & P. Kirbyy. Smith, 1 B. & Aid. 672. ii2 484 MERCANTILE CONTRACTS. Prooeediuga underwriter general circumstances connected with the history ^ °°^" and capabilities of the ship, e.g., her age, where she was built, what was her construction, whether clinker-built or not, whether copper-bottomed, when, how, and where repaired, &c. Circum- stances of this nature would no doubt have weight in guiding the judgment of the underwriter ; but it is not essential to the fairness of the contract that the insured should, in the first in- stance, disclose them — ^it is suflBcient if he answer truly when it is demanded of him (w). The assured will be affected by the knowledge of his agent with respect to the condition of the vessel. "If an agent, whose duty it is, in the ordinary course of business, to communicate information to his principal as to the state of a ship and cargo, omits to discharge such duty, and the owner, in the absence of information as to any fact material to be communicated to the underwriter, effects an insurance, such insurance will be void on the ground of concealment or misrepresentation. The insurer is entitled to assume, as the basis of the contract between him and the assured, that the latter will communicate to him every material fact of which the assured has, or, in the ordinary course of business, ought to have, knowledge" {x). In that case, the plaintiff's agent, a resident at Smyrna ior buying goods for the plaintiff, and shipping them to him at Liverpool, became aware, on the 24th January, that a ship on board of which he had shipped a cargo for the plaintiff had been wrecked and the cargo lost on the 23rd. The agent wrote informing the plaintiff of the loss on the 26th January, the next post day. He might have telegraphed, but he purposely refrained from doing so. It was held that it was the duty of the agent to have telegraphed, and that a policy " lost or not lost," effected by the plaintiff before receiving the letter of the 26th, and without knowledge of the loss, was void (y) . An agent who while negotiating an insurance receives information of a («;) See Haywood v. Bodgers, i East, [x) Cockium, C. J., in Proudfoot v. 590; Freeland v. Glover, 7 East, 467; Montefiore, L. E. 2 Q. B. 511, at p. long V. Duff, 2 B. & P. 209. 521. (y) Proudfoot v. Monlefore, supra. MARITIME INSUKANCE. 485 material fact, cannot, by handing tlie matter over to his prin- Proceedings eipals to continue the negotiations, release them from the duty '■ — of communicating the information (s). The assured is not affected hy the knowledge of every agent, but only where the agent is such that, in respect of the particular matter in question, he represents the principal [a). For example, in Blackburn, Loiv 8f Co. v. Vigors {b), the plaintiff had instructed a broker to effect for him a re-insurance upon an overdue ship. While acting on behalf of the plaintiff the broker received information of a material fact, tending to show that the ship was lost. He did not communicate it to the plaiutifF, and did not effect the re-insurance. Afterwards, the plaintiff effected, through another broker, a policy of re-insurance "lost or not lost " upon the ship with the defendant. The ship had been lost before the plaintiff tried to re-insure her through the first broker. Neither the plaintiff nor the second broker, who actually effected the re- insurance, had any knowledge of the material fact known to the first broker. It was held in the House of Lords, that the policy was not affected by the non-disclosure of the information acquired by the first broker ; for he was not the general agent of the plaintiff, but only an agent for the purpose of a particular contract, and this agency had ceased at the time the policy was entered into. " There was no material fact known to any agent which was not disclosed at the point of time at which the con- tract was made ; there was no one possessed of knowledge whose duty it was to communicate such knowledge " (r). Besides the general defences to a policy of marine insurance treated of in the preceding pages, there may, of course, be other defences arising out of the terms of the policy; e.g., in the case of mutual insurance companies, it is common to stipulate that no member whose share is mortgaged, and no mortgagee or assignee, unless he shall have paid or undertaken to pay all sums due by such member to the association, shall have any (z) Slackburn, Low S; Co. v. Haslam, (b) 12 App. Cas. 531, reversing the 21 Q. B. D. 144. judgment of the majority of the Covirt (a) Per Lord HaUbury, L. C, in intheCourtof Appeal, 17 Q.B. D. 553. Blackburn, Low ^ Co. v. Vigors, 12 App. (c) Per Lord Halsbury, L. C, 12 Cas. 631, at p. 539. App. Cas. at p. 539. 48^ MBRtJMTILE OCttJTJlAjCfrS ProoeediBg after a loss clgim jJii yirt^e of . th&.jpplioy. This will be regarded as a con- dition precedent (y). Return of Premium. — ^If the underwriter should succeed in establishing a defence against his liability upon the policy, a ques- tion iinmediately arises, whether the insured be entitled to a return of premium ; and, if so, whether to a return of all or part. On this subject the parties sometimes enter into an agreement, and if they do, the terms of that must, of course, be observed (s), and will regulate the amount of the sum to be returned and the circumstances under which it is returnable 'a). If there be no express stipulation, the question of return or np return is regulated by two main principles: First, where the risk has not been run, the premium shall be returned ; for the under- writer receives it for running the risk, and, if he do not run the risk, he ought not to retain it (J). Thus, if the policy were on goods, and no goods are put on board the ship, the premium must be returned (c). And on this ground rests the return of premium for short interest, which occurs when part only of the goods embraced by the policy is put on board, in which case a portion of the premium corresponding to the deficiency must be returned {d). In Fisk V. Mastermaii {e), insurances had been effected on the 12th of April to the amount of 14,150^., and on the 13th to the amount of 22,300^. It turned out that the whole value was 30,333^. 10s., so that there was 6,116/. 10s. short interest. The (y) Tumbull v. Woolfe, 7 L. T. N. S. (i) Routh v. Thompson, 11 East, 428 ; 483; Alexander v. Campbell, 27 L. T. Oomy. JSruce, 12 East, 226; Seniigv- N. S. 462. Staniforth, b M. & S.122; S. C, 4 (a) Audley v. Stiff, 2 B. & P. 111. Camp. 270. But this does not mean («) See Kellner v. Le Memtrier, 4 risk of loss. Policies are made on East, 396 ; Leevin v. Cormac, 4 Taunt. vessels " lost or not lost : " Bradford v. 483 ; Dalgleish v. Brooke, 15 East, Symondson, 7 Q. B. D. 456. 295 ; Jgailar v. Rodgers, 7 T. E. 421 ; (c) Martin v. Sitwell, 1 Show. 1S6. Simond v. Boydtll, Dougl. 268 ; Cas- \d) Eyre v. Glover, 16 East, 218 ; telli V. Boddington, 1 E. & B. 66, 879; Horneyer v. Zmhington, 16 East, 46; Sorncastle v. Haworih, Marsh. Ins. 3 Camp. 90. 539, 4th ed. ; Zanghom v. AUnutt, 4 [e] 8 M. & W. 165 ; Bradford v. Taunt. 611 (which last two oases seem Symondson, 7 Q. B. D. at p. 460. fit variance). MAKITIME INSUKANOJK. 487 Court held, that there must be a return by the underwriters on Proceedings the 13th, the amount of over-insurance to be ascertained by I_ taking all the policies into account, but no return to be made by the underwriters on the 12th. So, where profits are the subject of insurance there may be a return of premium for short profits (/). But, if it be a valued policy, and all the goods intended were put on board, the in- sured will not be entitled to a return on the ground that they were not of the Value specified ((/). The policy may attach though at the time it was entered into there could not, in fact, be a loss, and though the question of loss or no loss was then determined. Thus, in Bradford V. Symondsori (/<), the defendant, who had insured a cargo by a vessel "lost or not lost" for a certain voyage, subse- quently re-iasured. the same cargo with the plaintiS for the same risk. Before the re-insurance was effected the vessel had arrived safely — a fact not known to the plaintiff or de- fendant at the time of the re-insm'ance. It was contended that the policy had not attached, and consequently that the plaintiff was not entitled to the premium on the re-insurance. The Court of Appeal held otherwise. "The fallacy in the defen- dant's argument," said Bramwell, L. J., " arises fi'om the double meaning of the word ' risk.' That means both the voyage com- menced with necessary conditions to make the imderwriters liable, and, also, the chance of loss dm^ng its performance. In the latter sense, there was no risk at the time of re-insurance. But that is not the sense in which the word is used by the authorities. It is used in the first sense I have mentioned." Secondly, when the risk embraced by the policy is entire, and has once commenced, there can be no return of the premium, or of any part of it (»') ; thus, even if the insurance be for twelve months at a certain rate per month, and the risk ceases at the end of two months, there can be no apportionment or retiu-n of (/) i:yre v. Glover, uM supra. (A) 7 Q. B. D. 466. (g) MacNair v. CoulUr, 4 Bro. P. C. (i) Tyrie v. Fletcher, Oowp. 666 ; 450; Stone y. Marine Im. Co. of G., 1 Sermon v. Woodbridge, Dougl. 781; Ex. D. 81. Langhoi-n v. Oologm, 4 Taunt. 330, 488 MEKCANTILE CONTRACTS. Proceedings premium {k) ; for, as the whole risk attached, the underwriter ! would have been obliged to settle for a total loss had such a one taken place within the two months, and the specification of a certain sum per month is only a mode of computing the gross amount of premium. Again, if a ship insured from A. to B. sail in an unseaworthy condition, the underwriter's risk never commences (/) : and the premium, as we have seen, must be returned. But if a vessel be instired ai and from A. to B., and sail in an unseaworthy condition, no portion of the premium is returnable; for the risk attached, while she remained at A., before she sailed ; and if she had been lost while there, a total loss would have been payable (m) . So, again, if the ship deviate, the imderwriter is discharged ; yet, inasmuch as the risk on'ce attached, and as he might have been subjected to a total loss had she perished before she reached the point of deviation, no portion of the premium is returnable («). We have seen that there can be no return of premium where the risk is entire and has once commenced. But if the insur- ance be, in effect, on two or more voyages, and one or more have not commenced, there shall be an apportionment and ' return of premium in respect of those voyages that have not commenced ; for, in such a case, the risk is not" entire, nor is the underwriter for a single moment liable to make good any loss incurred during the latter voyages (o). The usual mode of showing that the risk is to be considered as thus divided is by proving an usage of trade to that effect, of which usage the underwriter must, of course, be presumed cognizant (p). Thus, where the insurance was from London to Halifax, warranted to depart with convoy from Portsmouth, the ship not having departed with convoy from Portsmouth, and the jury having found a usage to return part of the premium in such a case ; the Court thought that the contract was for an insurance from London to Halifax ; which contract, in case of the ship's not (k) lorainev.TAomlimon,'D(mgl.685. («) Tail v. Zcvi, 14 East, 481; {I) Fmson v. lee, 2 B. & P. 330. Moses v. Fratt, 4 Camp. 297. (m) Annen v. Woodman, 3 Taunt. (o) Stevenson v. Snow, 3 Burr. 1237. 299 ; Meyer v. Gregson, Park, 688. \p) Long v. Allen, Park, 589 ; Sk- See ante, p. 455. venson v. Snow, ubi supra. MAHITIME IXSURAXfE. 48& departing from Portsmouth with convoy, was to be reduced to Proceedings an insurance from London to Portsmouth ; that, as she had not ™^" departed from Portsmouth with convoy, the contract had heen so reduced, and, consequently, that there must he a part-return of the premium for the risk never incurred, viz., that from Ports- mouth to Halifax (q). It remains to be observed, that, even where the risk never commenced, yet if the assured or his agent have been guilty of fraud, for instance, if he knew that the ship was lost when he insured her, there can be no return of premium (r). The same rule holds, if the insurance be illegal, and the voyage have been performed, unless the parties could not have known of the illegality (s), or believed that the risk would be legal, and took the usual effective steps to make it so {t), for in pari delicto potior est conditio possidentis (m). But this maxim does not apply where the return of premium is claimed before the voyage has commenced ; for then, the contract being still executory, there is a locus poenitentia;, and either party has a right to rescind it, since, by doing so, he prevents the commis- sion of that which the law forbids (x). However, the party seeking to rescind must formally renounce the contract, and give notice to the underwriter that he has done so, before he can bring an action to recover back the premium (y). If a policy has been regularly executed (g), the remedy is by an action, which, as we have already seen, may be brought in the name of the assignee of the policy (a), or by the broker who (j) Stevenson v. Snow, ubi supra. \. Fletcher, 3 T. E. 266. (r) Wihon v. Bucket, 3 Burr. 1361 ; {x) See per Bitller, J., Lowry y. Tyler v. Some, Park, 329 ; Chapman Bourdieu, supra ; and Auhert v. Walsh, V. Fraser, Ibid. In the case of mere 3 Taunt, at p. 283. But see the re- omission to communicate material marks of Abbott, J., in Palyart v. information, the rule seems to be Leckie, 6 M. & S. 290. different : Anderson v. Thornton, 8 {y) Palyart v. Leckie, 6 M. & S. 290. Exoh. 425. (a) The 30 & 31 Vict. o. 23, s. 7, (s) Oom V. Bruce, 12 East, 225. presents a fatal obstacle to any pro- (<) Sentig v. Staniforth, 6 M. & S. ceeding on a memorandum or the slip, 122. which is usually signed: Tarry v. (m) WiUm V. ij. E. A. Co., 2 Camp. Great Ship Co., 4 B. & S. 556 ; lonides 623; Cowie v. Barber, 4 M. & S. 16; v. Pacijic I. Co., L. R. 6 Q. B. 674; Toulmin v. Anderson, 1 Taunt. 227 ; Cory v. Patton, L. K. 7 Q. B. 304. Lowry v. Bourdieu, Dougl. 468 ; Andre (a) Ante, p. 412. 490 MERCANTILE CONTRACTS. Proceedings effected the policy (6). The policy may, however, he so worded — '— as to render a reference the only mode of ascertaining the amount due (c), if it he disputed, and sometimes it imposes qualifications on the liahility of the insurers {d). The pohcy heing a contract of indemnity, a claim upon it cannot, in general, he answered hy, nor form the subject of, a set-off (e). When several actions are brought on a policy against several underwriters, the Court will make a rule for staying the pro- ceedings in all the actions except one, on the defendants under- taking, to be bound by the verdict in that action, and consenting to other reasonable terms (/). But though all the defendants are bound to abide by the verdict in that single action, the plaintiff is not so [g) ; however, if he proceeded in a second action without the leave of the Court, he will not be allowed the benefit of the terms imposed on the defendants by the consolida- tion rule. And if he have effected several insurances declaring the same value in each, he is bound for that sum, and cannot receive beyond that extent (/«). The sum recovered under one policy goes in reduction of that recoverable under another. Thus, where he declares different values, viz., 8,000^. on one policy, and 4,000^. on another, and recover 6,000/. under the former, he cannot in a subsequent action recover under the second («'). (4) Provisional Ins. Co. of Canada v. ed. p. 371, note. The Court may Zedue, L. E. 6 P. C. 224. grant a new trial in the first action: (c) Scott T. Avert/, 8 Exoh. 487 ; 5 Cohen y. Bulkeky, 5 Taunt. 165 ; Foster H. of L. Ca. 811 ; Tredwin v. Solman, \. Steele, 3 Bing. N. C. 892. 1 H. & C. 72 ; Mliott v. The S. K A. {g) Doyle v. Douglas, 4 B. & Ad. Co., L. R. 2 Ex. 237. 544 ; Long v. DougUs,lUi. note. As [d) JSallett T. Dowdall, 18 Q. B. 2 ; to the case of different policies on the Sassell V. Merchant T. 8. 1. ^- 1, A., 4 sameship, see M'Gregorv. Sorsfall, and Exch. 525. M'Gregor v. Smith, 3 M. & W. 320. ((') Castelli v. Boddington, 1 E. & B. [h) Irving v." Itichardson, 1 M. & 66,879;X(!«v.,Be(?fc«,8E.&B.692,n.; Rob. 153; Morgan v. Price, 4 Exch. 1 Arnould, 6th ed. 219. 615. (/) For the history of, and practice (i) Bruce v. Jones, 1 H. & C. 769, on this subject, see Tidd, 9th ed. 614 ; overruling Botisjleldy. Barnes, 4 Camp. Doyle V. Anderson, 1 Ad. & E. 635 : 228 ; Irving v. Richardson, 1 M. & Bob. SolMgsworth T. Brodrick, 4 Ad. & E. 163. 646 ; Wilson's Judicature Acts, 7th ( 491 ) CHAPTEE V. INSURANCE UPON LIVES. Insurance upon a life is a contract by ■which the insurer, iu Insurance consideration of a certain premium, either in a gross sum, or hy — ^ — '- annual- payments, undertakes to pay to the person for whose benefit the insurance is made, a certain sum of money or annuity on the death of the person whose life is insured (a). If the insurance be for the whole life, he undertakes to make the payment whenever the death happens ; if otherwise, he under- takes to make it in case the death should happen within a certain period, for which period the insurance is said to be made. As an unlimited power of effecting insurances of this descrij)- tion would give rise to a species of gambling, it is enacted by stat. 14 Greo. 3, c. 48, as follows : — " Sect. 1. No insurance shall be made by any person or persons, bodies politic or corporate, on the life or lives of any person or per- sons, or on any other event or events whatsoever (6), wherein the person or persons for whose use, benefit, or on whose account such policy or policies shall be made, shall have no interest, or by way of gaming or wagering ; and every assiirance, made contrary to the true intent and meaning hereof, shall be nuU and void to all intents and purposes whatsoever. " Sect. 2. It shall not be lawful to make any policy or policies on the life or lives of any person or persons, or other event or events, without inserting in such policy or policies the person* or persons * Sic. (a) Salby v. India and London Life statute is inapplicable. Bee Faterson Ass. Co., 15 C. B. 365. Compare the v. Powell, 9 Bing. 320 ; Roebuck v. definition by Jesscl, M. E,., in Fryer v. Bamerton, Cowp. 737 ; 8 & 9 Vict. Morland, 3 Ch. D. at p. 686. u. 109. But see Good v. Flliott, 3 (A) Perhaps it might not be very T. R. 693, and Morgan v. Febrer, 3 easy to say to what description of Bing. N. C. 457 ; Cook v. Field, 15 wagers, particularly if written, this Q. B. 460. 492 MERCANTILE CONTRACTS. Insurance name or names interested therein, or for wliose us.e, benefit, or on Tipon lives, ■^pliose account such, policy is so made or underwrote (c). " Sect. 3. In p.11 cases where the insured hath interest in such life or lives, event or events, no greater sum shall be recovered or received from the insurer or insurers than the amount or value of the interest of the insured in such life or Hves, or other event or events " (d). The Act does not void generally contracts made contrary thereto, but only as between the insurers and the insured. It is a defence to the insurers only, if they choose to avail themselves of it (e). A father effected, for his own benefit, an insurance in the name and on the life of his son, in which he had no insurable interest, and the insurers on the death of the son paid the father the amount insured ; it was held that the father was entitled to retain the amount as against the son's estate not- withstanding the statute (/). Marine insurances are exempted from the operation of this Act {g). The Act does not prohibit individuals from effecting insur- ances upon their own lives, provided that be done bona fide; but it seems that a man would not be allowed to evade the statute by procuring another, in whose Hfe he had no interest, to insure it with his money and for his benefit, though ostensibly for the advantage of the party insuring {h). The period to which the 3rd section of the statute refers, is that of effecting the policy, and therefore the assured is entitled to recover, to the extent of the limit mentioned in the policy, the value of his interest at that time, notwithstanding its subeequent diminution or even extinction («). The sum, too, he may recover is not restricted to the value of his interest at the (c) Sodson V. The Observer life A. [g] Sect. 4. Co., 8 E. & B. 40 ; Btms \. Bignold, (li) Wmnwright\. Bland, 1 M. AW. L. E. 4 Q. B. 622. See Collett v. 32 ; 1 M. & Eob. 481 ; Shillitig t. The Morrison, 9 Hare, 162. Accidental Death Insurance Co., 2 H. & {d) Reldon v. West, 3 B. & S. N. 42. 579. (») X)alby v. India and London life (e) Worthington v. Curtis, \ Ch. D. Ass. Co., 15 C. B. 366 ; and see law 419. V. The London Indisputable L. I. Co., 1 (/J Ibid. K. & J. 223. IXSUKANCE UrON LIVES. 493 time of efEecting tlie policy, but may include any benefit coming Insurance to the assured upon the determination of tbe event (k). When a life policy has been assigned, it is not necessary that the assignee should have any interest or have paid any con- sideration for the assignment ; for he stands upon the rights of the party who effected the insurance, and stat. 14 Greo. 3, c. 48, only applies to the original parties, not to assignees (/). A trustee may insure ia respect of the interest of which he is trustee (m), and a creditor has an insurable interest in the life of his debtor (w), provided that the debt be not an illegal one (o). An employer has an insurable interest in the life of a servant, and vice versa (p). Speaking generally, any one who has a pecuniary claim against another or a legal right to support (q) has an insurable interest in the life of the latter. In the well-known case of Godsall v. Boldero (r), the Court of Queen's Bench held, by analogy to marine and fire policies, that, insurance being a contract of indemnity, the insured could found no claim upon his policy, if the debt or other interest in respect of which he made it were satisfied aliunde. But in Dalby v. The India and London Life Assurance Company (s), the Court of Exchequer Chamber overruled this doctrine, and decided that a Hfe policy, both in form and effect, is an absolute contract to pay a certain sum in the case of death. (A) Law V. The London Indisputable one person may insure the life of L. I. Co., ubi supra; Hebdon v. West, another as trustee for him: CoUett v. 3 B. & S. 579. Morrison, 9 Hare, 162. [l) Ashley v. Ashley, 3 Sim. 149. (n) Anderson v. lEdie, Park, 640 ; There are, indeed, some oases in which and see Sebdon v. West, 3 B, & S. 579 ; the insurers, — as the condition upon Bruce v. Garden, L. E. 5 Ch. 33. See which they allow an assignee some also, as to interest, Henson v. Black- advantage he would not otherwise well, i Hare, 434. In some cases the have had, — impose on him the neces- debtor or his surety, on paying the sity of proving that he is an assignee debt, will be entitled to the benefit of for value ; as, for instance, where they the policy : see Morland v. Isaac, 20 allow a poUcy, which woidd as against Beav. 389 ; Drysdale v. Piggott, 25 the insured be avoided by his suicide, L. J. Ch. 878 ; Courtenay v. Wright, 2 to be good in favour of an assignee Giff. 337. for value to the extent of his interest. (o) Bwyer v. Edie, Park, 639. See Cook v. Black, I Hare, 390. \p) Sebdon v. West, 3 B. & S. 579. {»») Tidswell v. Ankerstein, Feake, (?) Worthington v. Curtis, 1 Ch. D. 151 ; London and N. W. Rail. Co. v. 419. Glyn, 1 E. & E. 662 ; Waters v. (r) 9 East, 72. Monarch, -5 E. & B. 870 ; and it seems («) 15 C. B. 365. 494 MERCANTILE CONTKACTS. Insiirance Lord Tenfei'dm, in Halfordv. Kymer{s), expressed a strong '— opinion, that the word " interest," in the statute above cited, means a pecufiiaiy intevest ; and in the same case it was held, that a father had not such an interest in his son's life as would entitle him to insure it (t). Lord Kenyon was of opinion that a wife, making an assurance on her husband's life, need not prove that she was interested therein, for that it must be presumed (a). It is open to doubt whether such a presumption exists ; in each case the question appears to be one of fact («). By the Married Women's Property Act, 18S2 {y), a married woman may insure her own or her husband's life for her separate use, and a policy effected by a man on his own life and ex- pressed to be for the benefit of his wife or children, or by a woman on her life and expressed to be for this benefit of her husband or children, shall create a trust in favour of the objects therein named (s). At common law the contract need not be in writing {a). But by the Stamp Act the contract or policy must be in writing {b). ' Before the policy is effected, it is usual for the person whose life is insured to subscribe a declaration or answer questions concerning his age, health, and other circumstances (c). This (s) 10 B. & C. 724 ; and see JECebdon 2. Present residence and occupation. V. West, 3 B. & S. 579. 3. Place and date of birth. {t) See Worthmgtoa v. Curtis, 1 Ch. 4. If hehashadthesmallorcow-pox. D. 419. 5. Whether parents alive. («) Beed v. E. E. A. Co., Peake, 6. Health of relatives. Add. Ca. 70. 7. If at any time afflicted with gout, {x) SeePorteronlnsurance, 35, where rupture, insanity, liver complaint, fits, it is said, ' ' But the husband is not or convulsions. presumed to have such an interest in 8. If he has had symptoms of con- the life of his wife." sumption, spitting of blood (see GeiKh [y) 45 & 46 Vict. 0. 75, s. 11. v. Ingall, 14 M. & W. 96), asthma, or (z) See In re Adam's Policy Trusts, any disease of lungs or chest. 23 Ch. Div. 526 ; Kolt v. Everall, 2 9. If now, and ordinarily, enjoying Ch. Div. 266; and Ee Mellor''s Policy good health, {^ee British Equitaile Co. Trusts, 7 Ch. Div. 200. v. G. W. By. Co., 38 L. J. Ch. 314; (a) KainesY. Knightly, Skinner, 54. Connecticut Mutual Life Insurance Co. >. (b) 33 & 34 Vict. c. 97, ss. 117, 118 ; Moore, 6 App. Cas. 644.) 44 Vict. u. 12, B. 44 (o). 10. If aware of any disorder or cir- (c) The following is an example of cnmstanoe tending to shorten life, or the ordinary subjects of this deolara- to make an assurance more than usually tion: — hazardous. I^ee Watson \.MainwBring, 1. Name of life to be assured. 4 Taunt, 763.) IXSUKANCK UPON LIVKS. 495 declaration is recited and incorporated by reference in the insurance policy (rf), at the end of which a proviso is ordinaiily inserted, °pp° <"g^- declaring the policy to he void in case the insured should die upon the seas, or go beyond the limits of Europe without leave obtained (r), commit suicide (/), or die by the hands of justice (ff), or if the age of the assured exceed years, or he be afflicted with any disease which tends to the shortening of life, or in case the declaration should contain any averment which is not true. These are the usual conditions, but they are sometimes varied to suit the objects of different insurers. In construing them the principle is that good faith is required. " I am not prepared," said Jessel, M. R., in London Assurance v. Mansel{h), "to lay down the law as making any difference in substance between one contract of assurance and another. Whether it is life, or fire, or maiine assurance, I take it good faith is required in all cases." It has been held that the condition which avoids the policy in case any untrue averment be contained in the declaration is to be taken literally ; and that, where it is in- serted, the insurance becomes void if any statement be in fact untrue, although the party making it is not apprised of its untruth («'). The question for the Court is, not whether 11. If in the army or navy. recital, Foster \. The Mentor L. A. Co., 12. Name and reaidence of ordinary 3 E. & B. 48 ; Wheelton v. Sardisty, 8 medical attendant to be referred to. £. & B. 232. (See Huckman v. Femie, 3 M. & W. (e) As to how this may be waived, 505 ; Connecticut Mutual Life Insurance see Wing v. Sarvet/, 5 De G. M. & Gr. Co., 6 App. Cas. at p. 651.) 265 ; RHs v. The Scottish E. L. A. 8., 13. Name and residence of friend 2 H. & N. 19. for same purpose. (/) Borradaile v. Hunter, 5 M. & G. 14. If the policy be for another 639 ; Horn v. Ani/lo-AustraKan Co., 30 person's benefit, that other person's L. J. Ch. 511. name, residence, and occupation. (g) The provisions respecting suicide, 15. Whether temperate. (See Thorn- or death by the hands of justice, are son V. Weems, 9 App. Cas. 671.) seldom or never inserted, except where 16. Has a proposal ever beenviade a man insures his own life. on your life at any other oflSce ? (See (A) 11 Ch. D. at p. 367. Compare London Assurance v. Mansel, 11 Ch. remarks of Lord 5/«ciA«r« in Thomson D. 363.) V. Weems, 9 App. Cas. at p. 684. As to u, condition as to notice of (i) Duckett v. Williams, 2 C. & M. death within a limited time, see Stone- 348 ; Cazenovev. The British E. A. Co. ham V. Ocean, St/., and Gen. Ace. Ins. 6 C. B. N. S. 437 ; Macdonald v. Law Co., 19 Q. B. D. 237. Union F. #Z. I. Co., L, E. 9 Q. B. {d) See, as to the effect of such a 328 ; Qrogam v, London and Manchester 496 . MERCANTILE CONTRACTS. Insurance the representations are material, but whether they are true (k). upon lives, . And SO the policy will be void, if the person whose life is insured have had any of the complaints which the declaration states he has not had, although the attack may have been of so mitigated a character as could not have a tendency to shorten life(/). Where the assured, in answer to the question "Are you temperate in your habits ? " answered " Yes," and it was proved that he was intemperate, it was held that the policy was void {m). A condition th^t the person is in good health is understood to mean that he is in reasonably good health, not that he is free from the seeds of disorder. Such a condition has been held to be complied with, though the party whose life was insured was occasionally troubled with spasms, cramps, and violent fits of the gout (w). Nor is it to be concluded that a disease is one tending to shorten life within the meaning of the policy from the *single fact that the party afterwards dies of it, if it be not a disorder necessarily having that tendency (o). Provisions are usually inserted in policies effected by the insured on their own lives respecting death by duelling or the sen- tence of the law. But they are in fact superfluous, for the policy would be unavailable to the representatives of the insured in case of such a death, even if they were not inserted ; and if a man insuring his own life were to introduce a contrary provi- sion, it would be void as being against public policy {p). The condition respecting death by suicide, or, as it is some- times expressed, " by his own hands," would likewise be superfluous, if its meaning were confined to acts of felonious self-destruction. But in the case of Borradaik v. ffmter{q), Assurance Co., S3 L. T. 761 ; Thomson had not been alHioted with nor is sub- T. Weems, 9 App. Gas. 671. Contrast ject to fits, is not broken by his having Fowkes T. Manchester and London Assur- accidentally had an epileptic fit in con- ance Association, 3 B. & S. 917. sequence of an accident: Chattoch v. (Jc) Anderson v. Fitzgerald, 4 H. L. Shawe, 1 M. & Rob. 498. Ca. 484 ; London Assurance v. Mansel, [p) Amicable Asswance Society v. 11 Ch. D. 363. Bolland, 4 Bligh, N. S. 194 ; Selw. [l] Geach V. Lngall, 14 M. & W. 95. N. P. 13th ed. 975. See, too, the ob- (m) Thomson v. Weems, ubi sup. servations of Lord Abinger, C. B., in («) Willis Y. Pole, Park, 650 ; Soss Wainewright v. Bland, 1 M. & Eob. V. Bradshaw, 1 W. Bl. 312. at p. 486. (o) Watson v. Mainwaring, 4 Taunt. (q) 6 M. & Gr. 639. 763. A warranty that the life insured INSURANCE -UPON LIVES. 497 which arose on a policy containing a proviso in the latter form, Insurance the jury having found that the assured "voluntarily threw "P°° "^^- himself from the bridge into the water, with the intention of destroying life ; but that, at the time of committing the act, he was not capable of judging between right and wrong," three judges of the Court of Common Pleas held the policy to have been avoided. Tindal, C. J., however, expressed his opinion, that, regarding the context, the condition was limited to cases of felonious suicide. He considered it quite clear that such would have been its operation, if the words used had been "shall die by suicide;" and, in this construction, Erskine, J., seems to have concurred. In the case of Schwabe v. Cli/t (s), which arose upon a policy containing the words " commit suicide," Cresswell, J., at Nisi Prius, told the jury that, in his opinion, " it must appear that the deceased was a responsible moral agent at the time of his death, in order to make the act committed by him amount to suicide ; " and, if they thought he could not " at the time distinguish and understand the nature and quality of the act he was doing," they should find a verdict for the plaintiff, which they did. Upon a bill of exceptions to this ruling, the majority of the judges in the Exchequer Chamber held (t), that these words included all cases of volun- tary self-destruction : and that if the deceased voluntarily killed himself, it was immaterial whether he was at the time sane or not. In the absence of an express provision in the policy, that in the event of the insured dying by his own hands the policy shall become void, the policy is not avoided, if the insured while in a state of temporary insanity takes his own life (u). An exception is generally engrafted upon this condition, that the policy shall remain in force to the extent of any bond fide interest a third person may acquire in it. This is valid, and in general it is not necessary that the policy should have been assigned, but a deposit or lien will suffice (»). («) 2 Car. & K. 134. («) Horn v. Anglo-Amtralian Life \t) Clip V. Schwabe, 3 C. B. 437. Asa. Co., 30 L. J. Ch. 511. And see White v. British Empire M. L. {x) Moore v. Woolaey, 4 E. & B. 243 ; I. A. Co., L. B. 7 Eq. 394. Jackson v. Forater, 1 E. & E. 463 ; S.— VOL. I. K K 498 MERCANTILE CONTRACTS. Insurance Some policies contain a provision that the company shall be ■upon ives. answerahle only for death or injuries caused hy "external" causes ; and questions similar to those discussed with reference to marine insurance arise as to whether a death or an accident is covered hy the policy. The tendency is, as in construing contracts of marine insurance, to look to the proximate cause. In Reynolds v. Accidental Insurance Co. (y), the deceased had been drowned in a pool a foot deep, owing to a fit or some other cause ; the executors of the insured were held entitled to recover under a policy containing a proviso, that " no claim should be payable in respect of death by accident, unless the same should be occasioned by some external or material cause operating on the insured person." The payment of the agreed premium in the stipulated manner is almost an invariable condition (z), though such a pro- vision will not be implied (a). If this provision be broken, a subsequent receipt of the premium by the insurance company's agent will not set up the policy, the agent not being authorized to bind the company by a fresh agreement to insure [b) ; though a payment to an agent having such authority will be evidence of such an agreement. Nor will receipt of premium by the company after the death of the assured, unless the company was aware of the fact, be construed as a waiver (c). Once the risk Jones T. Consolidation I. A. Co., 26 assured, and render it optional with Beav. 256 ; Dufawr v. Professional Life the company whether they will re- A. Co., 26 Beav. 599 ; White v. British ceive the premiran, so that if the life Empire M. L. I. A. Co., L. R. 7 Eq. drops in the interval, the polloy will 394. be void: Tarleton v. Staniforth, 5 T. {yj 22 L. T. 820 ; Smith v. Acci- R. 695 ; Simpson v. I%e Accidental ?/««. Co., L.R. 5 Ex. 302; Win- Death I. Co., 2 0. B. IS. 8. 261. And V. Accidental Ins. Co., 6 Q,. B. see The Fhoenix L. A. Co. v. Sheridan, D. 42 ; Lawrence v. Accidental Ins. Co., 8 H. L. Ca. 745 ; and Porter on In- 7 Q. B. D. 216 ; Isitt v. Railway Pas- surance, 90. sengers Ass. Co., 60 L. T. N. S. 297. («) Kelly v. London and Staffordshire («) A certain numher of days (usually Ins. Co., 1 Cab. & E. 47. fifteen) after the premium becomes (J) Acey v. Femie, 7 M. ftW. 151. due, called days of grace, are fre- But see Winff v. Sarvey, 5 De G., M. quently allowed for the payment by & G. 265. the conditions. These should never (c) Pritcha/rd v. Merehamti and be depended upon, as g( neraUy they 2Va&«meM'« X»/« 7««. Co., 3 C. B. N. S. only provide for payment by the 622. INSURANCE UPON LIVES. 499 has attached, no matter for how short a period, there shall he Insurance , n ,, . , ,>. upon lives, no return oi the premium (a). — i If there he no warranty or condition on the part of the insured, the insurer is suhject to all risks, unless he (e) can show a fraudulent concealment or misrepresentation (/), or a non- communication of material facts known to the assured {g), either of which will avoid the policy. It is the duty of the insured to disclose all material facts within his knowledge ; and, if the fact suppressed be material, it signifies not whether the party did or did not believe it to be so, its materiality being a question of fact {h). An insurance company had agreed to insure a life at a specified premium, on the terms that no insurance should take place till the premium was paid ; before the tender of the premium there was a material alteration in the risk ; in these circumstances it was held that there was no contract binding the company to grant a policy (i). A verbal misrepresentation vitiates the policy, although it be expressly stipulated by its terms that it shall be void on untrue answers being given to certain wiitten inquiries (/t). It has been held, that an action win lie to have a fraudulent policy delivered up, but that the equity is better, if it be brought during the continuance of the life assured (/). But, it seems, that no such action would lie on the ground of there being no insurable interest (w). Where one person insures the life of another, the party whose life is insured, if applied to for information, is not, in giving it, [cC] Sermon v. Woodbridge, 2 Doug. Htiguenin v. Sayley, 6 Taunt. 186 i 781, at p. 788. Geach, v. Ingall, U M. & W. 95. (e) See Elkin v. Janson, 13 M. & W. {h) London Ass. v. Mansel, 11 Ch. D. 665 ; Geach v. Ingall, 14 M. & W. 95. at p. 368 ; Lindmam v. Deslorough, 8 (/) Staekpole y. Simon, Park, 648. B.& 0.586; Geach \. Ingall, xibisa-^Ta,. In some oases policies are declared, {«) Camning ■ not being in the nature of payment, as for the use of frames supplied by the master and employed in the work, standing room, &c., were held to be legal in Chawner v. Cummings («). To prevent this was passed 37 & 38 Vict. c. 48, which enacted, as to hosiery manufactures, that all contracts to stop wages, and for frame rents and charges, shall be null and void. The Truck Act, 1831, has been further amended by the 50 & 51 Vict. c. 46, which partly repeals the first Act, and enacts that in actions for wages, a set- off or counter-claim in respect of goods supplied to workmen by their employer or his agent, may not be set up, and that conditions as to spending wages at any shop are invalid (sects. 5 and 6). The Act does not apply to servants in agriculture («). 46 & 47 Vict. c. 31, prohibits under penalties the payment of wages of workmen in public-houses. By stat. 83 & 34 Vict. c. 97, an agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant is exempt from stamp duty (y). By 30 & 31 Vict. c. 130, the employment of young persons and women by gangmasters for agricultural purposes is pro- hibited. There are other statutes regulating the employment in factories and mines (s). A great ntmiber of statutes have at various times been passed, («) 8 Q. B. 311. But see Archer v. Werner v. Floyd, 21 L. J. Q. B. 151 ; James, 2 B. & S. 61, 67 (Ex. Cli.) ; Ingram v. Barnes, 7 E. & B. 113. Willis V. Thorp, L. E. 10 Q. B. 383. But see aliter, where they bind them- By the first Act (as. 23, 24) the selves to work : Sowers v. Lovekin, 6 agreement for such deduotions must in E. & B. 684; Lawrence v. Todd, 14 most cases he in writing signed by the C. B. N. S. 554 ; 50 & 51 Vict. o. 46. workman : Pillar v. Llynvi Coal Co., [y) Wilson v. Zulueta, 14 Q. B. 405. L. K. 4 0. P. 752. («) See as to coal mines, 50 & 51 («) See as to the persons within tM Vict, c, 58 ; as to cotton cloth fao- Truck Act, Siley v. Warden, 2 Exch. tories, 62 & 5S Vict. o. 62. 59 ; Sharman v. Scmders,13 C. B. 166 ; CONTRACTS OF HIKING AND SERVICE. 527 pointing out modes for the enforcement of their rights, and for Contracts of the arrangement of disputes occurring between masters in par- service, ticular trades and their servants or workmen {z). But these have now heen superseded by the statute 38 & 39 Vict. c. 90, which provides remedies of a civil nature before a county court judge, or, where the sum in dispute does not exceed £10, by summary proceedings before magistrates, and enables those tribunals to administer full justice between both parties. There are also statutes (ri) which afford the means of adjusting disputes between masters and workmen by arbitration. These statutes embrace almost all causes of dispute between such parties, and give ample powers for their redress up to a limited amount. The 3rd section of the 5 Geo. 4, c. 96, points out the mode of decision, which is either by the summary award of a justice, if the parties can agree to it ; or, if not, by two arbitrators, one chosen by each party out of a number of not less than four, nor more than six, to be named by the justice upon application to him by one of the parties. The other sections provide for the appointment of new arbitrators in case of the neglect or refusal of those first named, the mode of investigation, the powers with which the arbitrators are to be invested for the purpose of procuring evi- dence, the course to be adopted where they disagree, and the enforcement of the award when made. A contract of hiring and service, being a purely personal con- tract, is determined by the death of either party (5) ; and the inability of the servant from illness will excuse his performance of it (c). If permanent, his iUness is a ground for dismissal (d). {z) By the Master and Servant Act, & 36 Vict. c. 46. 1889 (62 & 63 Vict. c. 24), a number {b) Farrow v. Wikon, L. E. 4 C. P. of statutes "rdating to master and 744; Stuhhs -7. Soly well Railway Co., servants in particular manufactures" L. E. 2 Ex. 311. have heen repealed. (o) Sobimon v. Davison, L. R. 6 Ex. (o) 6 Geo. 4, c. 96 ; 7 Will. 4 & 1 269 ; Soast v. Firth, L. E. 4 C. P. 1. Vict. c. 67 ; 30 & 31 Vict. o. 105 ; 36 (rf) Cuckson v. Stones, 1 E. &E. 248. 528 MERCANT1I.E CONTKACTS. OHAPTEE IX. CONTRACTS WITH SEAMEN. Sect. 1. Foi-m of Contract. 2. Duties and Rights of Seamen. 3. Wages, how lost or forfeited. 4. Semedies of Seamen for their Wages. Contracts This Subject is regulated by the Merchant Shipping Act, . 1854 (a), which consolidated, and amended the provisions of the General Merchant Seamen's Act (b), and the Mercantile Marine Act, 1850 (c), and the Merchant Shipping Acts, 1862 (d), 1873(e), 1876 (/), and 1880 (^). Special provisions vyith regard to fishing vessels and appren- tices to the sea fishing service are made by the Merchant Ship- ping (Fishing Boats) Act, 1883 (A). The subject of the present chapter may be most aptly con- sidered under the following heads : — 1. Form of contract. 2. Duties and rights of seamen under it. 3. Wages, how lost or forfeited. 4. Remedies for the recovery of wages. (a) 17 & 18 Vict. u. 104. (e) 36 & 37 Vict. o. 85. (i) 7 & 8 Vict. 0. 112. (/) 39 & 40 Vict. c. 80. (c) 13 & 14 Vict. u. 93. [g) 43 & 44 Vict. o. 16. (d) 25 & 26 Vict. o. 63. (h) 46 & 47 Vict. c. 4. CONTRACrrs WITH SKAMEN. 529 Section I. — Form of Contract. With regard to the form of the contract, the 149th section ^™ °i <^^- of 17 & 18 Yiot. c. 104, enacts that— '- " The master of every ship (j), except ships of less than eighty- tons registered tonnage exclusively employed in trading between different ports on the coasts of the United Kingdom (/c), shall enter into an agreement with every seaman whom he carries to sea from any port in the United Kingdom as one of his crew in the manner hereinafter mentioned ; and every such agreement shall he in a foi-m sanctioned by the Board of Trade, and shah be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same, and shall contain the following particulars as terms thereof; (that is to say,) (1.) The nature, and, as far as practicable, the duration {I) of the intended voyage or engagement : [or, instead, may state the maximum period of the voyage or engagement, and the places or parts of the world (if any) to which the voyage or engagement is not to extend (m).] (2.) The number and description of the crew, specifying how many are engaged as sailors : (3.) The time at which each seaman is to he on board or to begin work: (4.) The capacity in which each seaman is to serve : (5.) The amount of wages which each seaman is to receive (mm) : (6.) A scale of the provisions which are to be furnished to each seaman : (7.) Any regulations as to conduct on board, and as to fines (n), short allowance of provisions, or other lawful punish- (t) This applies to all British ships, though in the alternative, was held a wherever registered, s. 109 ; also to sufBcient compliance with this ordin- sea-going yachts and registered fish- ance, and a provision that the crew ing vessels on the coasts and light- might be transferred to any other ship house ships : see 25 & 26 Vict. c. 63, in the same employ upheld. B. 13. As to contracts with fishermen, (m) The alternative statement within see 36 & 37 Vict. c. 86, s. 8, and s. 55. brackets is provided by 36 & 37 Vict. , (A) See Shepherd v. Silla, 11 Exoh. u. 85, o. 7. 56. {mm] See 62 & 53 Vict. c. 46, s. 2. {I) In Frazer v. Satton, 2 C. B. N. S. («) Unless this provision be inserted, 612, a voyage from Liverpool to the fines cannot be deducted without an "West Coast of Africa and back, or for adjudication. See post, pp. 646, 646. a term not to exceed three years, S. VOL. 1. M M 530 MERCANTILE CONTRACTS. Form of con- ments for misconduct, wliicli have been sanctioned ty the ^° ' Bokrd of Trade as regulations proper to he adopted, and which the parties agree to adopt : And every such agreement shall he so framed as to admit of stipu- lations to he adopted at the wUl of the master and seamen in each case, as to advance and allotment of wages, and may contain any other stipulations which are not contrary to law (o) : Provided, that if the master of any ship belonging to any British possession has an agreement with his crew made in due form according to the law of the possession to which such ship belongs, or in which her crew were engaged, and engages single seamen in the United Kingdom, such seamen may sign the agreement so made, and it shall not he necessary for them to sign an agreement in the form sanctioned by the Board of Trade." Sect. 150 also enacts, that — " In the case of all foreign-going ships, in whatever part of her Majesty's dominions the same are registered, the following rules shall be observed with respedt to agreements ; (that is to say,) (1.) Every agreement made in the United Kingdom (except in such cases of agreements with substitutes as are herein- after specially provided for) shall be signed by each sea- man in the presence of a shipping master : (2.) Such shipping master shall cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each seaman understands the same before he signs it, and shall attest each signature : (3.) When the crew is first engaged the agreement shall be signed in duplicate, and one part shall be retained by the shipping master, and the other part shall contain a special place or form for the descriptions and signatures of substitutes or persons engaged subsequently to the first departure of the ship, and shall be delivered to the master : (4.) In the case of substitutes engaged in the place of seamen who have duly signed the agreement, and whose services ^.re lost within twenty-four hours of the ship's putting to sea by death, desertion, or other unforeseen cause, the engagement shall, when practicable, be made before some (o) See Fraser v. Satton, ubi supra. CONTUACT.S WITH 8KAMEN. 531 shipping master duly appointed in the manner herein- Porm of con- before specified; and whenever such last-mentioned en- ^ ' gagement cannot be so made, the master shall, before the ship puts to sea, if practicable, and if not, as soon after- wards as possible, cause the agreement to be read over and explained to the seamen ; and the seamen shall thereupon sign the same in the presence of a witness, who shall attest their signatures." Eiunning agreements may, however, be entered into in certain cases, on the following terms — Sect. 151. "In the case of foreign-going ships mating voyages averaging less than six months in duration, running agreements with the crew may be made to extend over two or more voyages, so that no such agreement shall extend beyond the next following thirtieth day of June, or thirty-first day of December, or the first arrival of the ship at her port of destination in the United King- dom after such date, or the discharge of cargo consequent upon such arrival; and every person entering into such agreement, whether engaged upon the first commencement thereof or other- wise, shall enter into and sign the same in the manner hereby required for other foreign-going ships ; and everj' person engaged thereunder, if discharged in the United Kingdom, shall be dis- charged in the manner hereby required for the discharge of (tea- men belonging to other foreign-going ships. Sect. 152. " The master of every foreign-going ship for which such a running agreement as aforesaid is made shall, upon every return to any port in the United Kingdom before the final termi- nation of the agreement, discharge or engage before the shipping- master at such port any seaman whom he is required by law so to discharge or engage, and shall upon every such return indorse on the agreement a statement (as the case may be), either that no such discharges or engagements have been made or are intended to be made before the ship again leaves port, or that all such dis- charges or engagements have been duly made as hereinbefore required, and shall deliver the agreement so indorsed to the ship- ping master ; and any master who wHfully makes a false statement in such indorsement shall incur a penalty not exceeding twenty pounds; and the shipping master shall also sign an indorsement on the agreement to the effect that the provisions of this Act relating to such agreement have been complied with, and shall redeliver the agreement so indorsed to the master." M M 2 5J2 MEECANTJLTi CONTRACTS. Form of eon- With respeot to home-trade ships, s. 155 enacts that — tract. * "In the case of home-trade ships, crews or single seamen may, if the master thinks fit, be engaged before a shipping master in the manner hereinbefore directed with respect to foreign-going ships ; and in every case in which the engagement is not so made, the master shall, before the ship puts to sea, if practicable, and if not, as soon afterwards as possible, cause the agreement to be read over and explained to each seaman, and the seaman shall there- upon sign the same in the presence of a witness, who shall attest his signature." The statute, by s. 166, likewise provides that — " In cases where several home-trade ships belong to the same owner, the agreement with the seaman may, notwithstanding any- thing herein contained, be made by the owner instead of by the master, and the seamen may be engaged to serve in any two or more of such ships (^), provided that the names of the ships and the nature of the service are specified in the agreement ; but, with the foregoing exception, all provisions herein contained which relate to ordinary agreements for home-trade ships shall be apphcable to agreements made in pursuance of this section." Sect. 157 of the same statute enacts that — "If in any case a master carries any seaman to sea without entering into an agreement (q) with him in the form and manner, and at the place and time hereby in such case required, the master in the case of a foreign-going ship, and the master or owner in the case of a home-trade ship, shall for each such offence incur a penalty not exceeding five pounds." Seamen engaged in any colony, for any ship registered in the United Kingdom, or for any ship registered in another colony, must be engaged before a shipping master or officer appointed to engage seamen, and if there be none such, then before an officer of customs {r). Masters engaging seamen for a British ship in any foreign country must do so before a British con- sular officer, if there be one (s). (jo) See Frazer v. Satton, 2 C. B. Redmond v. Smith, 7 M. & Q-. 457. N. S. 512. [r) 17 & 18 Viot. o. 104, s. 159. (?) But the omiasion, it would seem, («) Ibid. s. 160. This is only direo- does not render the ship unseaworthy, tory ; Frazer v. Satton, 2 0. B. N. S. or the voyage illegal ; the provision is 512. simply for the protection of the seamen . COXTRACriS wriH SEAMKN. 5''}3 With respect to these agreements, it is further provided by ^""n of oon- 17 & 18 Viot. c. 104, 8. 161— *^ " (4.) The master of every foreign-going ship shall, -within forty- eight hours after the ship's arrival at her final port of destination in the United Kingdom, or upon the discharge of the crew, -whichever first happens, deliver such agree- ment to a shipping master at the place ; and such shipping master shall thereupon give to the master a certificate of such delivery ; and no officer of customs shall clear any foreign-going ship in-wards -without the production of such certificate : And if the master of any foreign-going ship fails to deliver the agreement to a shipping master at the time and in the manner hereby directed, he shall for every default incur a penalty not exceeding five pounds." Then by sect. 162— ' ' The following rules shaU be observed with respect to the pro- duction of agreements and certificates of competency or service for home-trade ships ; (that is to say,) (1.) In the case of home-trade ships of more than eighty tons bui'den, no agreement shall extend beyond the next follow- ing thirtieth day of June or thirty-first day of December, or the first arrival of the ship at her final port of destina- tion in the United Kingdom after such date, or the dis- charge of cargo consequent upon such arrival : (2.) The master or owner of every such ship shall, within twenty- one days after the thirtieth day of June and the thirty- first day of December in every year, transmit or deliver to some shipping master in the United Kingdom every agree- ment made within the six calendar months next preceding such days respectively, and shall also, in the case of home- trade passenger ships, produce to the shipping master the certificates of competency or service which the said master, and his first or only mate, as the ca§e may be, are hereby required to possess : (3.) The shipping master shall thereupon give to the master or owner a certificate of such delivery and production ; and no officer of customs shall grant a clearance or transire for any such ship as last aforesaid, without the production of such certificate ; and if any such ship attempts to ply or go to sea without such clearance or transire, any such 534 MERCANTILE CO>"rRACTS. Form of con- officer may detain her until the said certificate is pro- *'•""*• duced: And if the agreement for any home-trade ship is not delivered or transmitted by the master or owner to a shipping master at the time and in the manner hereby directed, such master or owner shall for every default incur a penalty not exceeding five pounds." Provision is made for the authentication of any erasure, inter- lineation, or alteration in the agreement by the attestation of some shipping master, justice, officer of customs, or other public functionary, or (if made out of her Majesty's dominions) of a British consular officer, or, where there is no such officer, of two respectable British merchants. Without such authentication such erasure, &c., is to be wholly inoperative (t) ; and likewise a J)enalty is imposed for any fraudulent alteration or delivering a false copy(M). Then, by sect. 165, it is provided that — " Any seaman may bring forward evidence to prove the contents of any agreement or otherwise to support his case, without producing or giving notice to produce the agreement or any copy thereof." And, by sect. 166 — " The master shall, at the commencement of every voyage or en- gagement, cause a legible copy of the agreement (omitting the signatures) to be placed or posted up in such part of the ship as to be accessible to the crew, and in defaxilt shall for each offence incur fb penalty not exceeding five pounds." It was decided under the former Acts (consolidate'd by the Merchant Shipping Act, 1854), that, though an agreement contrary to their provisions was void, it was not avoided in consequence of its containing stipulations in addition to those given in the Act, if not contrary to them in letter or spirit (x). Indeed, the Acts themselves, by invalidating certain clauses tending to deprive th« seamen of advantages, it was thought, impliedly recognised the power of introducing others not having a tyrannical or unreasonable operation; and considerable latitude (t) 17 & ISViot. u. 104, B. 163. See {x) The Minerva, 1 Hagg. 347; The it in Appendix. George Rome, Ibid. 377, ad finem. («) Ibid. 9. 164. CONTRACTS WITU SEAMEX. .>3-5 seems to be allowed by the foregoing enactment. In construing Form of con- all contracts made by seamen, however, the Courts follow out ' the politic inclination of the legislature to protect and favour that deserving class of labourers. And it has been expressly stated in the Court of Admiralty {y) that the tribunal will bear in mind the general ignorance and improvidence of seamen, and their inability to appreciate the meaning and effect of a long and multifarious instrument. The master, therefore, will not be allowed to obtain any advantage from the use of general or ambiguous terms, such, for instance, as " to New South Wales or chewlicre" (z). It was held, too, under the former Acts, that, where a written agreement had been made, it was the only evidence of the contract, and that no new term could be intro- duced by parol (a). Any person not licensed by the Board of Trade, other than the owner (6), master, mate of a ship, some person hon& fide the servant and in the constant employ of the owner, or a duly appointed shipping master, who engages or supplies any seaman or apprentice to be entered on board any ship in the United ESngdom, incurs a penalty of 20/. (c). Contracts with seamen are exempt from stamp duty (d). Such contracts may, under the Merchant Shipping (Payment of Wages and Eating) Act, 1880, s. 8, be rescinded. " Where a proceeding is instituted in or before any Court in relation to any dispute between an owner or master of a ship and a seaman, or apprentice to the sea service, arising out of or incidental to their relation as such, or is instituted for the purpose of this section, the Court, if having regard to all the circumstances of the case they think it is just so to do, may rescind any contract between the owner or master and the seaman or apprentice, or any contract of apprenticeship, upon such terms as the Court may think just, (y) The Minerva, ubi supra. And Woolmore, Abb. Ship. 459, 12th ed. see also 8 & 9 Vict. o. 116. (*) Bughea v. Sutherland, 7 Q. B. D. (a) The Minerva, ubi supra ; The 160. Georffe Some, ubi supra ; The West- (c) 17 & 18 Vict. c. 104, s. 147 (1). moreland, 1 W. Rob. 216 ; The Eliza, 1 W H ™8,de in a form sanctioned by Hagg. 182 ; The Countess of Harcourt, the Board of Trade, 17 & 18 Vict. Ibid. 248 ; The Nonpareil, 33 L. J. c. 104, s. 9 ; 33 & 34 Vict. u. 97, s. 3 ; Adm. 201. and see Wilson v. Zulueta, 14 Q. B. 405. (a) White -v. Wilson, 2B. &P. 116; And for coastwise voyages, 33 & 34 The Isabella, 2 C. Eob. 241 ; Ehworth v. Vict. c. 97, ached. r,^Ci MER(MX'ni,E rONTHACTS. Form of con- tract. and this power shall be in addition to any other jurisdiction which the Court can exercise independently of this section " (e). Sect. 11 of the same Act extends the Employers and Work- men Act, 1875 (/), to seamen and apprentices. The remedies given by sect. 243 of the Merchant Shipping Act, 1854 (g), are in substitution for any other remedy against seamen for breach of contract ; and a shipowner cannot recover damages under sect. 4 of the Employers and Wojkmen Act, 1875, though the damages claimed are under 10^. (h). The Employers' Liability Act, 1880 (43 & 44 Vict. c. 42), does not apply to seamen (?'). Section II. — Duties and Rights of Seamen under the Contract. Duties and The first duty of the seaman under the contract is, of course, men under the to join and work the ship on board of which he has engaged to °"° '^'' ' serve (k), and obey the master : and the due performance of his 104, s. 243 (/), contract is thus enforced by 17 & 18 Yiet. c. viz. : — " Whenever any seaman who has been lawfully engaged, or any apprentice to the sea service commits any of the following ofEencas, he shall be Hahle to be punished summarily as follows ; (that is to say,) (1.) For desertion (m) he shall be liable to forfeit all or any part of the clothes and effects he leaves on board, and all or any part of the wages or emoluments which he has then earned, and also, if such desertion takes place abroad, at the dis- cretion of the Court, to forfeit all or any part of the wages or emoluments he may earn in any other ship in which he may be employed tmtil his next return to the United Kingdom, and to satisfy any excess of wages paid by the master or owner of the ship from which he deserts, to any substitute engaged in his place at a higher rate of wages than the rate stipulated to be paid to him : (e) 43 & 44 Viot. c. 16, s. 8. For the purposes of this section, the term "Court" includes any magistrate or justice having jurisdiction in the matter to which the proceeding relates. (/) 38 & 39 Viot. c. 90, supra. (?) Infra, pp. 536, 637, 638. (A) 6freat Northern Steamship Fishing Co. V. EdgeUU, 11 Q. B. D. 225. (i) 43 & 41 Vict, c, 16, s. J I. (k) Itmno V. Bennett, 3 Q. B. 768. (?) Amended by 43 & 44 Vict. c. 16, H. 12. (m) As to what constitutes desertion, .see post, pp. 552, 563. By .'52 & 63 Viot. 0. 46, s. 3 (see Appendix), a. register of deserters is to be kept by the superintendents of mercantile marine offices. ( ONIRACIS W.TTI SKA.XU.X. (2.) For neglecting or refusing without reasonable cause to join Duties and his ship, or to proceed to sea in his ship, or for absence "S'^^^ o| sea- ^ ' J^ ^' men under the without leave at any time within twenty-four hours of the contract. ship's sailing from any port, either at the commencement or during the progress of any voyage, or for absence at any time without leave and without sufficient reason from his ship or from his duty, not amounting to desertion, or not treated as such by the master, he shall be liable to forfeit out of his wages a sum not exceeding the amount of two days' pay, and in addition, for every twenty-four hours of absence, either a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute : (3.) For quitting the ship without leave after her arrival at her port of delivery and before she is placed in security, he shall be liable to forfeit out of his wages a sum not ex- ceeding one month's pay : (4.) For wilful disobedience to any lawful command, he shaU be liable to imprisonment for any period not exceeding four weeks, with or without hard labour ; and also at the discretion of the Court to forfeit out of his wages a sum not exceeding two days' pay : (5.) For continued wilful disobedience to lawful commands, or continued wilful neglect of duty, he shall be liable to imprisonment for any period not exceeding twelve weeks, with or without hard labour ; and also, at the discretion of the Court, to forfeit for every twenty-four hours' con- tinuance of such disobedience or neglect, either a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute : (6.) For assaulting any master or mate he shall be liable to imprisonment for any period not exceeding twelve weeks, with or without hard labour : (7.) For combining with any other or others of the crew to dis- obey lawful commands, or to neglect duty, or to impede the navigation of the ship or the progress of the voyage, he shall be liable to imprisonment for any period not exceeding twelve weeks, with or without hard labour : (8.) For wilfully damaging the ship, or embezzling or wiUully damaging any of her stores or cargo, he shall be liable to forfeit out of his wages a sum equal in amount to the loss thereby sustained, and also, at the discretion of the Court, to imprisonment for any period not exceeding twelve weeks, with or without hard labour : 538 MERCANTILE CONTRACTS. Duties and (9.) For any act of smuggling of which lie is convicted, and rights of sea- wlierelDy loss or damage is occasioned to the master or contract. owner, he shall be liable to pay to such master or owner such a sum as is sufficient to reimburse the master or owner for such loss or damage ; and the whole or a pro- portionate part of his wages may be retained in satisfaction or on account of such liability, without prejudice to such further remedy." Where a remedy for the seaman's breach of contract exists under this section, the right to resort to any other remedy is by implication excluded (w). If the seaman or apprentice commit any of the offences men- tioned in the above section, an entry (o) is to be made of the facts in the official log, and signed by the master as well as the mate or one of the crew, and of this a copy is to be furnished to the offender, or it is to be read over to him if he be in the ship, and any reply he may make is likewise to be entered in the log. . In order to secure the services of the seamen on board, a summary power of apprehending deserters without warrant was given to the master or owner by sect. 246 of 17 & 18 Yict. c. 104. This section and sect. 248 of the same Act have been repealed by 43 & 44 Vict. c. 16, s. 12, and by sect. 10 of the latter Act it is provided as follows : Sect. 10. "The following provisions shall, from the commence- ment of this Act, have operation within the United Kingdom : " A seaman or apprentice to the sea service shall not be liable to imprisonment for deserting, or for neglecting, or refusing, without reasonable cause, to join his ship, or to proceed to sea in his ship, or for absence without leave at any time within twenty-four hours of his ship's sailing from any port, or for absence at any time with- out leave, and without sufficient reason, from his ship, or from his duty. '.' "Whenever, either at the commencement or during the progress of any voyage, any seaman or apprentice neglects or refuses to join, or deserts from, or refuses to proceed to sea in any ship in which he is duly engaged to serve, or is found otherwise absenting himself therefrom without leave, the master or any mate, or the owner, («) Great 2forthen> Steaimhip Fiahing (o) 17 & 18 Vict. c. 104, s. 244. Co. V. Edgehill, 11 Q. B. D. 226. COXXKACIS WITH SEAMEX. 539 ship's husband, or consignee, may, with or without the assistance of Duties and the local police officers or constables, who are hereby directed to arive ^S^*'^ o| ^^- '■ ' ^ o jng^ under the the same, if required, convey him on board ; provided that if the contract, seaman or apprentice so requires he shall first be taken before some Court capable of taking cognizance of the matters to be dealt with according to law ; and that if it appears to the Court before which the case is brought that the seaman or apprentice has been con- veyed on board or taken before the Court on improper or insuffi- cient grounds, the master, mate, owner, ship's husband, or con- signee, as the case may be, shall incur a penalty not exceeding twenty pounds, but such penalty, if inflicted, shall be a bar to any action for false imprisonment. " If a seaman or apprentice to the sea service intends to absent himself from his ship or his duty, he may give notice of his inten- tion, either to the owner or to the master of the ship, not less than forty-eight hours before the time at which he ought to be on board his ship ; and in the event of such notice being giv6n, the Court shall not exercise any of the powers conferred on it by sect. 247 of the Merchant Shipping Act, 1854. " Subject to the foregoing provision of this section, the powers conferred by sect. 247 of the Merchant Shipping Act, 1854, may be exercised, notwithstanding the abolition of imprisonment for desertion and similar offences, and of apprehension without warrant. " Nothing in this section shall affect sect. 239 of the Merchant Shipping Act, 1854." Sect. 247 of the Merchant Shipping Act, 1854 (as amended by 43 & 44 Vict. o. 16, s. 12), is as follows :— Sect. 247. "Whenever any seaman or apprentice is brought be- fore any Court on the ground of his having neglected or refused to join or to proceed to sea in any ship in which he is engaged to serve, or of having deserted or otherwise absented himself therefrom with- out leave, such Court may, if the master or the owner or his agent so requires, .... cause him to be conveyed on board for the purpose of proceeding on the voyage, or deliver him to the master or any mate of the ship, or the owner or his agent, to be by them so conveyed, and may in such case order any costs and expenses properly in- curred by or on behalf of the master or owner by reason of the offence to be paid by the offender, and, if necessary, to be deducted from anj- wages which he has then earned, or which by virtue of his then existing engagement he may afterwards earn." There being an implied obligation in the contract that means 540 MERCANTILE C()NniA(;Tf=. Duties and shall have been taken to insure the seaworthiness of the ship, menimderthe ^^^ breach of this would, of course, form an answer to any contract. charge of desertion or complaint of refusal to proceed in her on the part of the seaman ; but he may, instead of doing this, com- plain that she is unsafe to the Board of Trade, who may detain her and investigate the matter. If this complaint be made by an individual the Board may require of the complainant security for costs and compensation to the owner for his loss by reason of its detention and survey, shoidd it be found that there was not reasonable or probable cause for them ; but if the complaint be made by one-fourth of the crew, being not less than three, and the Board or its officers think this not frivolous or vexatious, this security may be dispensed with {p). The next duty of a seaman under this contract is to exert himself to the utmost in the service of the ship (q). Therefore, any promise of extra pay as an inducement to extraordinary exertion in that respect is nudum pactum, and void (»•). If the services are such as he is not bound to perform — if, for instance, a ship is so short-handed that the completion of her voyage becomes unsafe, and the master voluntarily promises the remain- ing seamen a sum of money in addition to their wages for com- pleting the voyage — this remuneration for extraordinary services maybe recovered (s). Where a ship had been abandoned by the master, the crew were entitled to salvage for salvage services afterwards rendered by them (t). If he is promoted during the voyage, he may recover the wages of his new position (u). If he be improperly discharged, before or at the commencement of the voyage, the statute 17 & 18 Yict. c. 104, s. 167, enacts, ^hat — " Any seaman who has signed an agreement, and is afterwards (p) 39 & 40 Vict. o. 80, ss. 6, 10, 11. immediate loss, destruction, or serious (j) See 17 & 18 Vict. c. 104, s. 183, damage, or preserving any person on post, pp. 551, 652. By sect. 239 of board from immediate danger of life the same statute any seaman who, hy or limb, is guilty of a misdemeanour. wilful breach or neglect of duty, or (»•) Harris v. Watson, Peake, 72 ; drunkenness, does any act tending to Harris v. Carter, 3 B. & B. 659. the loss, destruction or serious damage («) Marttey v. Ponsmby, 7 El. & Bl. of the ship, or the life or limb of any 872. one on board, or refuses or omits to do (<) J%e Florence, 16 Jivr. 672. any act proper or requisite to be done («) Hanson v. JRoyden, L. R. 3 C. P. by him for preserving the ship from 47. COMKACTS WITH SKAMEN. 541 discharged before the commencement of the voyage, or before one Duties and month's wages are earned, -without fault on his part justifying ^f^ ^a^erThe such discharge, and without his consent, shall be entitled to receive contract, from the master or owner, in addition to any wages he may have earned, due compensation for the damage thereby caused to him, not exceeding one month's wages, and may, on adducing such evidence as the Court hearing the case deems satisfactory of his having been so improperly discharged as aforesaid, recover such compensation as if it were wages duly earned." A seaman will have a right to his full wages, although pre- vented by a hurt received in the performance of his duty, or by sickness, from performing his service, if he remain with the ship {v) , unless the illness has been caused by his own wilful act or default {x). The statutes 17 & 18 Vict. c. 104, ss. 185, 209, 210, and 25 & 26 Yict. c. 63, s. 19, contain provisions for the payment of wages due to seamen left behind under a certificate of their not being in a condition to proceed on the voyage. A seaman also has a right to wages during an embargo, provided that the ship afterwards perform her voyage (y). But if he is sent home as a witness by the consul or other lawful authority, and does not rejoin his ship, he cannot recover wages accruing after he quitted her (s). If a seaman die during the voyage, his representatives may claim his wages ^>ro rata (a). By statute 17 & 18 Vict. c. 104 {b), it is provided, that a seaman may leave his ship for the purpose of forthwith entering the Queen's naval service without forfeiture of wages, notwith- standing his agreement ; and the master must deliver to the seaman his clothes and effects, and must pay a proportionate amount of his wages, either in money or by bill drawn on the owners at sight, to the officer in command of the Queen's ship; (ti) Abbott, p. 463, 12th ed. ; Chmd- o. 104, s. 184, and s. 194 to s. 204 ; ler T. Grieves, 2 H. Bl. 606, n. («). 23 & 26 Vict. o. 63, 8. 20, and 45 & 46 (x) See 30 & 31 Vict. o. 124, s. 8, Vict. o. So, s. 4 (a), as to the payment post, p. 666. of the wages of deceased seamen ; (y) £eah v. Thompson, 3 B. & P. 25 & 26 Vict. c. 63, s. 21, where sea- 405 ; 4 East, 546 ; 1 Dow. 299 ; John- men or apprentices are lost with the ion T. Broderiek, i East, 666. ship ; and 52 & 53 Vict. u. 46, s. 4, as (s) Melville v. Be Wolf, 4 E. & B. to payment of British seamen in 844. foreign money. {a)Armstrongy.SMith,l'B.k'S.'S."Bi. (J) Sect. 214 to sect. 219. See as to 299; OutUry. Powell, 6T. E. 320. And the old law on this point, Wiggins v. see the provisions of 17 & 18 Vict. Ingleton, 2 Ld. Baym. 1211. 542 MERCANTILE CONTaACTS. I?"*i^» ^J^^ and the money or produce of the bill is ultimately (c) to be paid men under the to the seaman. If the bill be not paid, the seaman may sue on '- it, or recover the wages due to him in the ordinary course. But in order to compensate the shipowner for any loss (rf), if the seaman has quitted without the consent of the master or owner, who is compelled to provide a substitute, and his wages exceed the amount the original seaman would have received, the master or owner may obtain the difference from Grovernment. With respect to the time from which the seaman's wages begin, the statute, sect. 181, provides that — " A seaman's right to wages and provisions shall be taken to commence, either at the time at which he commences work, or at the time specified in the agreement for his commencement of work or presence on board, whichever first happens." With respect to the time for the payment of the wages, the decision in Button v. Thompson (e) is important. There the sea- man's agreement was in the form sanctioned by the Board of Trade, for a voyage from Shields to Alexandria, and, if required, to any port or ports in the Mediterranean, Black Sea, Danube, &c., and home to the ship's final port of discharge in the United Kingdom or Continent of Europe, the voyage not expected to exceed twelve months. The seaman, through his own negli- gence and misconduct, was left behind at a port in the Danube. It was held that he might recover wages up to the time of being left behind ; for that the contract was for a succession of voyages of indefinite duration, though " not expected to exceed twelve months," and that his wages, though, perhaps, not recoverable till the expiration of the stipulated period of service, were yet vested and a debt at the end of each month of service, subject only to forfeiture in certain events. The Merchant Shipping Act, 1854, by s. 168, enacts that— " AH stipulations for the allotment of any part of the wages of a seaman during his absence, which are made at the commencement (c) But not until the time he would made himself liable for wages in have been entitled to receive his wages, advance, he may be recompensed by if he had remained in the service of the Admiralty. the ship he has quitted. (e) L. K. 4 C. P. 330, per Byles and {c(} By sect. 216, if wages have been Montague Smith, JJ.; diss. Brett, J. advanced, or the owner or master has CONTRACTS WITH SEAMEN. '543 of the voyage, sliall be inserted in the agreement (/), and shall Duties and state the amounts and times of the payments to be made ; and all rights of sea- *^ *^ men under the allotment notes shall be in forms sanctioned by the Board of Trade." contract. And now, by 43 & 44 Yict. c. 16, s. 3, if the seaman so re- quires, the agreement with him shall stipulate for the allotment of a part of his wages, not exceeding one-half, in faToux of certain relatives {i.e., his wife, father, mother, grandfather, grandmother, child, grandchild, brother or sister), or the allot- ment may be made in favour of a savings bank. This section also provides that — "A payment under an allotment note shall begin at the expira- tion of one month, or, if the allotment is in favour of a savings bank, of three months, from the date of the agreement, or at such later date as may be fixed by the agreement, and shall be paid at the expiration of every subsequent month, or of such other periods as may be fixed by the agreement, and shall be paid only in respect of wages earned before the date of payment." Means are provided (g) for enforcing, in the County Court or summarily, payment by relatives of the seaman of any allotment note thus issued, provided the owner does not prove that the wages have been forfeited. This provision is confined to the actual owner, who has the management of the ship for the time being (h). By s. 187 of the Merchant Shipping Act, 1854, it is enacted that — " The master or owner of every ship shall pay to every seaman his wages within the respective periods following (that is to say), in the cnse of a home-trade ship, within two days after the termi- nation of the agreement, or at the time when such seaman is dis- charged, whichever first happens ; and in the case of all other ships (except ships employed in the southern whale fishery or on other voyages, for which seamen by the terms of their agreement are whoUy compensated by shares in the profits of the adventure), within three days after the cargo has been delivered, or within five days after the seaman's discharge, whichever first happens ; and in all cases the seaman shall, at the time of his discharge, be entitled to be paid on accoimt a simi equal to one-fourth part of the balance due to him ; and every master or owner who neglects or refuses to (/) As to the validity of advance (y) 17 & 18 Vict. c. 104, b. 169. notes, see M'Kioie v. Joynson, 5 C. B. (A) Mcilclereid v. West, 1 Q. B. D. N. S. 218, and 52 & 53 Vict. o. 46, s. 2. 428. -'544 MERCANTILE CONTUACTS. Buties and make payment in manner aforesaid, witliout sufficient cause (i), men under the sliall pay to the seaman a sum not exceeding tte amount of two contract. days' pay for each, of the days, not exceeding ten days, during which payment is delayed beyond the respective periods aforesaid, and such sum shall he recoverable as wages." Conditional advance notes were declared illegal by 43 & 44 Yict. c. 16, s. 2. But this provision was repealed by the Merchant Shipping Act, 1889 (52 & 53, Vict. c. 46), wMeli (s. 2) enacts that — " (1.) Any agreement with a seaman made under section 149 of the Merchant Shipping Act, 1854, may contain a stipula- tion for payment to or on behalf of the seamen, condition- ally on his going to sea in pursuance of the agreement, of a sum not exceeding the amount of one month's wages payable to the seaman under the agreement. " (2.) Save as authorized by this section, any agreement by or on behalf of the employer of a seaman for the payment of money to or on behalf of the seaman conditionally on his going to sea from any port in the United Kingdom shall be void, and no money paid in satisfaction or in respect of any such agreement shall be deducted from the seaman's wages, and no person shall have any right of action, suit, or set ofi against the seaman or his assignee in respect of any money so paid or purporting to have been so paid." With respect to the mode of payment, by 17 & 18 Yict. c. 104, s. 170, all seamen discharged in the United Kingdom from any British foreign-going ship must, under a penalty of 10?., be discharged and receive their wages in the presence of a superin- tendent, except in cases where a competent Court otherwise directs. In the case of home-trade ships seamen may, if the owner desires, be discharged and receive their wages in the like manner. Not less than twenty-four hours (/) before paying off or dis- charging any seaman, the master shall deliver to him, or if he is to be discharged before a superintendent, to such superin- tendent, a full and true account, in a form sanctioned by the Board of Trade, of his wages and all deductions therefrom, and in default shall forfeit 10/. No deduction is to be allowed, except in respect of matter subsequent, unless it be included in such statement {k). («■) SeeFraner v. Satton, 2 C. B. N. S. (J) 17 & 18 Vict. o. 104, s. 171. 512 J The Princess Selena, Lush. 190. (A) Ibid. CONTKACrs WITH SKAMKX. 545 Upon the discharge (/) of any seaman, or payment of his Duties and wages, the master shall sign and give him a certificate, in a pre- men under the scribed form, specifying the period of service, and time and °°°*'^^*' place of discharge; and the master's refusal to give it subjects bim to a penalty not exceeding 10/. The superintendent is empowered {m) finally to hear and decide any question between a master or owner and any of the crew which both parties agree by writing to submit to him ; and for this purpose he is armed with authority to call for the log-book and papers (w), and to examine witnesses. Now 43 & 44 Vict. c. 16, s. 4, provides that — "In the case oi foreign-going ships — (1 .) The owner or master of the ship shall pay to each seaman on account at the time when he lawfully leaves the ship at the end of his engagement 21., or one-fourth of the balance due to him, whichever is least, and shall pay him the remaiader of his wages within two clear days (exclusive of any Sunday, fast day in Scotland, or bank holiday) after he so leaves the ship. (2.) The master of the ship may deliver the account of wages mentioned in sect. 171 of the Merchant Shipping Act, 1854, to the seaman himself at or before the time when he leaves the ship, instead of delivering it to a superintendent of a mercantile marine office. (3.) If the seaman consents the final settlement of his wages may he left to the superiatendent of a mercantile marine office, under regulations to be made by the Board of Trade, and the receipt of the superintendent shall ia that case operate as a release by the seaman, under sect. 175 of the Merchant Shipping Act, 1854. (4.) In the event of the seaman's wages or any part thereof not being paid or settled as in this section mentioned, then, unless the delay is due to the act or default of the seaman, or to any reasonable dispute as to Uabihty, or to any other cause not being the act or default of the owner or master, the seaman's wages shall continue to run and be payable until the time of the final settlement thereof. (5.) Where a question as to wages is raised before the superin- tendent of a mercantile marine office between the master or owner of a ship and a seaman or apprentice, if the (I) 17 & 18 Viot. 0. 104, s. 172. («) Ibid. s. 174. (»i) Ibid. o. 173. S. — VOL. I. N N 546 MERCANTILE CONTKACTS. Duties ajid amount in question does not exceed 51., the superintendent men under the ™^^y adjudicate, and the decision of the superintendent contract. in the matter shall be final ; but if the superintendent is of opinion that the question is one which ought to be decided . by a court of law, he may refuse to decide it." By sect. 175 of the Merchant Shipping Act, 1854 (o) — " The following rules shall be observed, with respect to the settle- ment of wages : (that is to say,) (1). Upon the completion before a shipping master of any dis- charge and settlement, the master or owner and each seaman shall respectively, in the presence of the shipping master, sign, in a form sanctioned by the Board of Trade, a mutual release of all claims in respect of the past voyage or engagement, and the shipping master shall also sign and attest it, and shall retain and transmit it as herein directed : (2.) Such release, so signed and attested, shall operate as a s mutual discharge and settlement of aU demands between the parties thereto in respect of the past voyage or engagement : (3.) A copy of such release, certified under the hand of such shipping master to be a true copy, shall be given by him to any party thereto requiring the same ; and such copy shall be receivable in evidence upon any future question touching such claims as aforesaid, and shall have aU the effect of the original of which it purports to be a copy : (4.) In cases in which discharge and settlement before a ship- ping master are hereby required, no payment, receipt, set- tlement or discharge otherwise made shall operate or be admitted as evidence of the release or satisfaction of any claim : (5.) Upon any payment being made by a master before a ship- ping master, the shipping master shall, if required, sign and give to such master a statement of the whole amount so paid ; and such statement shall, as between the master and his employer, be received as evidence that he has made the payments therein mentioned." The master is also(p), upon every disoharg© tef ore a superin- tendent, to sign, m a form sanctioned by the Board of Trade, a report of the conduct, character, and qualifications of the persons («) 17 & 18 Viot. ^. lOi. (p) Ibid. s. 176. CONTRACTS WITH SEAMEX. 547 discharged, or state, in a column for that purpose, that he Duties and declines to give any opinion upon such particulars or any of ^|^ under tiie them. The superintendent is to transmit this to the Registrar- contract- General of Seamen, or such other person as the Board of Trade directs, and also, if desired to do so by the seaman, give him, or indorse on his certificate of discharge, a copy of so much of the report as concerns him. With respect to the discharge of seamen abroad, and to pre- vent the improper leaving behind, or forcing of them on shore, the following provisions are made by the Merchant Shipping Act, 1854 (q) :— Sect. 205. " Whenever any British ship is transferred or dis- posed of at any place out of her Majesty's dominions, and any seaman or apprentice belonging thereto does not, in the presence of some British consular officer, or, if there be no such consular officer there, in the presence of one or more respectable British merchants residing at the place, and not interested in the said ship, signify * his consent in writing to complete the voyage if continued, and whenever the service of any seaman or apprentice belonging to any British ship terminates at any place out of her Majesty's dominions, the master shall give to each such seaman or apprentice a certificate of discharge in the form sanctioned by the Board of Trade as afore- said, and in the case of any certificated mate whose certificate he has retained, shall return such certificate to him, and shall also, besides paying the wages to which such seaman or apprentice is entitled, either provide him with adequate employment on board some other British ship bound to the port in her Majesty's domi- nions at which he was originally shipped, or to some other port in the United Kingdom as is agreed upon by him, or furnish the means of sending him back to such port, or provide him with a passage home, or deposit with such consular officer or such merchant or merchants as aforesaid such a sum of money as is by such officer or merchants deemed sufficient to defray the expenses of his sub- sistence and passage home, and such expenses shall be a charge upon the ship and may be recovered from the owners." Sect. 206. "If the master or any other person belonging to any British ship wrongfully forces on shore and leaves behind, or other- wise wilfully and wrongfully leaves behind, in any place, on shore or at sea, in or out of her Majesty's dominions, any seaman or apprentice belonging to such ship before the completion of the (?) 17 & 18 Vict. c. 104. N N 2 648 MERCANTILE CONTRACTS. Duties and voyage for which such person was engaged, or the 'return of the rights of sea- gj^p ^q jjj^g United Kingdom, he shall for each such offence be men under the , , ., „ . . contract. deemed guilty of a misdemeanour. ' Sect. 207. "If the master of any British ship does any of the following things : (that is to say,) (1.) Discharges any seaman or apprentice in any place situate in any British possession abroad (except the possession in which he was shipped), without previously obtaining the sanction in writing endorsed on the agreement of some public shipping master, or other officer duly appointed by the local government in that behalf, or (in the absence of any such functionary) of the Chief Officer of Customs resident at or near the place where the discharge takes place : (2.) Discharges any seaman or apprentice at any place out of her Majesty's dominions, without previously obtaining the sanction so endorsed as aforesaid of the British con- sular officer there, or (in his absence) of two respectable merchants resident there : (3.) Leaves behind any seaman or apprentice at any place situate in any British possession abroad on any ground whatever, without previously obtaining a certificate in writing so endorsed as aforesaid from such officer or person as aforesaid, stating the fact and the cause thereof, whether such cause be unfitness or inability to proceed to sea, or desertion or disappearance : (4.) Leaves behind any seaman or apprentice at any place out of her Majesty's dominions, on shore or at sea, on any ground whatever, without previously obtaining the certi- ficate, endorsed in manner and to the effect last aforesaid, of the British consular officer there, or (in his absence) of two respectable merchants, if there is any such at or near the place where the ship then is : He shall for each such default be deemed guilty of a misdemeanour : and the said functionaries shall, and the said merchants may, examine into the grounds of such proposed discharge, or into the allegation of such unfitness, inability, desertion, or disappearance as aforesaid, in a summary way, and may for that purpose, if they think fit so to do, administer oaths, and may either grant or refuse such sanction or certificate as appears to them to be just." The burden of proving such sanction or certificate is thrown CONTRACTS WITH i^EAMEN. 549 upon the master (r) ; and in the case of distressed seamen being Duties and found abroad, who may have been shipwrecked, discharged, or mfuimderthe left abroad, provisions are made (s) for their relief and convey- """tract. ance home, out of the moneys granted for the relief of distressed seamen. By sect. 213 it is then provided — " If any seaman or apprentice belonging to any British ship is discharged or left behind, at any place out of the United Kingdom, without full compliance on the part of the master with all the provisions in that behalf in this Act contained, and becomes dis- tressed, and is relieved under the provisions of this Act, or if any subject of her Majesty, after having been engaged by any person (whether acting as principal or agent) to serve in any ship belong- ing to any foreign power, or to the subject of any foreign power, becomes distressed and is relieved as aforesaid, the wages (if any) due to such seaman or apprentice, and aU expenses incurred for his subsistence, necessary clothing, conveyance home, and burial, in case he should die abroad before reaching home, shall be charged upon the ship, whether British or foreign, to which he so belonged as aforesaid," &c.{t). The Board of Trade, besides suing for any penalties, may sue for or recover the wages and costs either from the master, owner, or the person with whom the engagement was made. At common law the owner of a ship did not warrant to the seaman that she was seaworthy (to). Now, however, it is enacted by the Merchant Shipping Act, 1876 (x), that — " In every contract of service express or implied between the owner of a ship and the master or any seaman thereof, and in every instrument of apprenticeship whereby any person is bound to serve as an apprentice on board any ship, there shall be implied, notwithstanding any ag^-eement to the contrary, an obligation on the owner of the ship, that the owners of the ship, and the master and every agent charged with the loading of the ship, or the pre- paring thereof for sea, or the sending thereof to sea, shall use all reasonable means to iusure the seaworthiness of the ship for the (r) 17 & 18 Viot. 0. 104, 8. 208. {t) And see this regulated and ex- («) Sects. 211, 212; 25 & 26 Viot. tended by 18 & 19 Viot. c. 91, s. 16. 0. 63, 8. 22 ; 43 & 46 Vict. u. 53, ss. 4, («) Couch v. Steel, 3 E. & B. 402 ; 6, 10. 23 L. J. Q. B. 121. (.r) 39 & 40 Viot. o. 80, 8. 5. 550 MERCANTILE CONTRACTS. Duties and voyage at the time wten the voyage commences, and to keep her " uud ^^tii ^^ * seaworthy condition for the voyage during the same : provided contract. that nothing in this section shall subject the owner of a ship to '~' " " ' any liahility by reason of the ship being sent to sea in an unsea- worthy state, where, owing to special circumstances, the so sending thereof to sea is reasonable and justifiable." Regulations axe contained ia the Merckant Shipping Acts, 1854 and 1867 {q), enabling seamen to complain of bad provi- sions, to recover compensation for the bad quality, or the reduction of their allowance, and securing a supply for them of proper medicine and anti-scorbutics; and in the Merchant Shipping Act, 1867 (r), prescribing the accommodation to which they shall be entitled on board. By the Merchant Shipping Act, 1854 («), the expense of providing surgical and medical advice, with attendance and medicine for any seaman receiving injury in the service of the ship, as well as of his subsistence, untQ he is cured, brought home, or dies, and, if he die, of his burial, is to be borne by the owner. By the Merchant Shipping Act, 1867 {t), if a seaman who is ill has not been provided with proper food, medicine, &c., and the illness has not arisen from other causes, the owner or master will be liable to pay all expenses incurred by reason of such illness, not ex- ceeding three months' pay. Section III. — Wages, how lost or forfeited. Wages, how The wages of seamen, whether hired by the voyage or the forfeited. month, are sometimes lost and sometimes forfeited. By the common law, freight was said to be the mother of wages ; and if during the voyage a total loss or capture of the ship took place the seamen lost their wages {x) . But if there were an outward and {q) 17 & 18 Vict. 0. 104, ss. 221, (x) Abbott, p. 464, 12th edit. There 222, 223, 226, 226, 232 ; 30 & 31 Vict. were some exceptions to this doctrine. 0. 124, ss. 4, 6, 7. See 27*0 ITeptme, 1 Hagg. Adm. Eep. (r) 30 & 31 Vict. o. 124, s. 0. 227. And the rule did not extend to the («) 17 & 18 Viot. 0. 104, s. 228. master : SawMm v. Tmtell, 6 E. & B. {t) 30 & 31 Vict. 0. 124, s. 7. 883. CONTRACTS WITH SEAMEN. 561 a homeward voyage, they were entitled to wages for the former, Wages, how if the ship were lost during the latter, unless the two were by forfeited, agreement consolidated into one (y) ; for then no freight would have been earned. So, if there were several cargoes and several voyages, they had a right to wages up to the conclusion of the last. If the ship went out empty to look for freight, and returned without procuring any, the seamen were entitled to their wages (a) ; and when money had been advanced to the owner in part of freight, they had a right to wages pro raid out of that, although the vessel had been wrecked before the termi- nation of the voyage (a). If, in case of a wreck, the cargo were saved, and the merchant paid part of the freight in respect thereof, the seamen seem, both on principle and authority, to have been entitled to part of their wages (i). Indeed, it was questioned whether their right to this part could be prevented froln accruing by an express stipulation in the contract of hiring; but it was at last settled that, in a cotirt of common law at least, it might be so (c). And it was held, where by great labour they had saved part of the ship, that they were entitled to wages out of the produce (d). Now the Merchant Shipping Act, 1854, by sect. 183 (e), pro- vides with respect to aU British, including colonial (/), ships, that — "No right to wages shall be dependent on the earning of freight: and every seaman and apprentice who would be entitled to demand and recover any wages if the ship in which he has served had earned freight, shall, subject to all other rules of law and condi- tions applicable to the case, be entitled to claim and recover the (y) Anon., 1 Ld. Eaym. 639 ; 12 See ITie Juliana, 2 Dods. Adm. Eep. Mod. 408 ; 2 Mageus, 113. See Ap- 604. pleby V. Dods, 8 East, 300 ; Jesse v. {d) The Neptune, 1 Hagg. Adm. Eep. JRoy, 1 C. M. & E. 316 ; Tlie Juliana, 227; The Reliance, 2 W. Eob. 119. 2 Dods. Adm. E. 504. (e) 17 & 18 Vict. o. 104. (z) 77ieiVepte«e, 1 Hagg. Adm. Eep. {/) Ibid. s. 109. Where colonial 227 ; Abbott, p. 468. ships are in the possession they belong (a) Anon., 2 Sho-wer, 283. See to, they are in some cases excepted Saunders v. Drew, 3 B. & Ad. 445. (see the section). With respect to (b) Abbott, p. 465, 12th ed. other ships, the law above stated still (c) Jetse V, Soy, I C. M, & B. 316. prevails. 552 MERCANTILE CONTRACTS. Wages, Low same, notwithstanding that freight has not heen earned ; but in f rf °ted ^^^ cases of wreck or loss of the ship, proof that he has not exerted himseK to the utmost to save the ship, cargo, and stores shall bar his claim." No seaman, too, shall by any agreement forfeit his lien on the ship, or be deprived of any remedy for the recovery of his wages ; and every stipulation by which any seaman consents to abandon his right to wages in the case of the loss of the ship, or any right in the nature of salvage, shall be wholly inopera- tive (g). But if the agreement terminate prematurely, by reason of the wreck or loss of the ship, or if he be left on shore abroad under a certificate of illness or inability (A) to proceed, the seaman is only entitled to his wages for the time he has served. Neglect or refusal to assist the master in his defence against ipirsites forfeits the wages («), and a justifiable discharge for gross misconduct (such as habitual neglect of duty, constant drunken- ness or disobedience (k) ) entails a loss of them (1). In further^ ance of this principle, the Merchant Shipping Act, 1854 (m), provides, that a naval court (n), held under it on the high seas or abroad, who have jurisdiction over such offences, may discharge any seaman, and order his wages to be forfeited, and retained by the owner by way of compensation, or paid into the Exchequer. According, also, to the doctrine of the common law, desertion from the ship forfeits the seaman's wages (o). The Merchant {g) 17 & 18 Vict. 0. 104, s. 182. {m) 17 & 18 Vict. o. 104, o. 263. But by 26 & 26 Viot. o. 53, s. 18, this («) See 17 & 18 Vict, c 104, ss. 260, provision does not apply in case of a 261, 262. ship to he employed on salvage (o) The Baltic Merchant, Edw. Adm. services. Eep. 86 ; MoUoy, B. 2, o. 3, s. 10 ; The {h) 17 & 18 Viot. 0. 104, s. 185. Buhner, 1 Hagg. Adm. Eep. 163. See («) 22 & 23 Car. 2, e. 11, s. 6, re- T/te Miza, Ibid. 182; Countess of Ear- vised edit. court, Ibid. 248 ; The Fearl, b C. Eoh. (A) The Atlantic, Lush. 566. 224; Nea/oe Y.Pratt, 2B. &P.N.E.408. {I) The Mxeter, 2 C. Eob. Adm. Eep. The common law doctrine was affirmed 261 ; The Blake, 1 Wm. Eob. Adm. and extended by 11 & 12 Will. 3, u. 7, Eep. 73 ; Button v. Thompson, L. E. 4 s. 17 ; 2 Geo. 2, u. 36, s. 3 ; 2 Geo. 3, C. P. 330, at p. 343. c. 31 ; 31 Geo. 3, c. 39, ss. 3, 4; 37 CONTHACTS WITH SEAMEN. 553 Shipping Act, 1854, s. 243, as we have already seen (p), adopts Wages, how the same principle; and ia order to facilitate the enforcement forfeited, of this forfeiture (q), renders his quitting the ship hefore the ex- piration of his engagement, with an entry of the fact of his desertion in the oflScial log-hook, sxj&dent primd facie evidence to support the resistance to the claim of the sailor for his wages, and throws on him the onus of proving a proper discharge, or a sufficient excuse for his absence. If the desertion take place ahroad, the entry in the log ought to he produced to a public functionary, who is to endorse on the agreement a certificate of the desertion, and forward a certified copy of the entry' in the log, and of the indorsement, to the Registrar-General of Seamen, and these documents are made evidence in any legal proceedings relating to the desertion (r). Quitting the ship with leave of the master, and refusing to return when ordered, is desertion (s) ; but quitting the ship and refusing to proceed on a voyage not designated by the articles (t), or a voyage which would expose the seaman to greater risk than was contemplated when his agreement was entered into (m), is not so ; nor is a man a deserter who has been compelled to quit the ship by inhuman treatment (as), or by want of provi- sions (y), or dismissed without lawful cause (a). So merely quitting the ship without leave, and going on shore for a tem- porary purpose, e.g., to obtain legal advice as to the effect of the articles, does not constitute desertion (a). Geo. 3, c. 73, s. 1 ; 4 Geo. 4, o. 25, 182 ; Countess of Marcourt, Ibid. 248. s. 9. These Acta were repealed by («) Burton v. Pinkerton, L. K. 2 Ex. 5 & 6 Will. 4, o. 19, and are onlymen- 340. tioned hiBtorioally. The appUoation [x) Hdward v. Trevelliek, 4 E. & B. of the common law as to desertion S9. was not excluded by them : Tlw West- (^) The Oastilia, 1 Hagg. Adm. Eep. moreland, 1 W. Eob. Adm. Eep. 216 ; 59. The Two Sisters, 2 W. Eob. Adm. Eep. {z) Zimland v. Stephens, 3 Esp. 269 ; 125. Sigard v. Roberts, 3 Esp. 71. {p) See ante, p. 536 ; Button v. (a) The Westmoreland, 1 W. Eob. Thompson, L. E. 4 0. P. 330. Adm. Eep. 216 ; Button y. Thompson, (?) Sect. 250. L. R. 4 C. P. 330. And by 17 & 18 (r) Sect. 249. Vict. c. 104, s. 232, the seaman is en- (s) The Buhner, 1 Hagg. A. E. 163 ; titled to go on shore for the purpose of The Pearl, 6 C. Eob. Adm. Eep. 224. making a complaint to a magistrate, {t) The Elizn, 1 Hagg. Adm. Eep. &c. See 36 & 37 Vict. u. 85, s. 9. 554 MERCANTILE CONTRACTS. "Wages, how The Merchant Shipping Act, 1854, in the terms already set forfeited. forth (b), authorizes deductions to he made from the wages for ~ various acts of misconduct, which may be determined in any proceeding instituted with respect to the wages (c). If, too, a seaman be dismissed during the voyage for gross misconduct other than desertion, he will lose all claim to accruing wages, as in the case of any other servant, but he will not forfeit those actually due {d). Among the instances of misconduct for which deduction may be made, are embezzlement and injury to the ship or cargo. The penalty thus imposed is in accordance with the common law, by which it had been decided, that, if the cargo be em- bezzled or injured by the fraud or negligence of the seaman, the owner had a right to deduct a compensation from the wages of those whose misconduct had produced the injury (e) ; but he had no right to make any deduction on that account from the wages of the innocent (/). The Merchant Shipping Act, 1854 {g), likewise enacts, that — "Whenever in any proceeding relating to seamen's wages, it is shown that any seaman or apprentice has in the course of the voyage been convicted of any offence by any competent tribunal, and rightly punished therefor by imprisonment or otherwise, the Court hearing the case may direct a part of the wages due to such seaman, not exceeding 3^., to be applied in reimbursiag any costs (J) 17 & 18 Vict. 0. 104, s. 243, ante, sequent desertion of tlie seaman ; Tay- pp. fi36etseq. By sect. 149, the agree- lor v. Laird, 1 H. & N. 266. But ment is to contain the regulations as where the seaman is engaged for a to fines which the parties agree to specific voyage by the month, as is adopt ; sect. 256 provides how they usual, the question is more difficult ; are to be enforced and applied. As to see jBuiton v. Thompson, L. R. 4 C. P. the mode in which the amount of for- 330 ; and the judgments of Dr. Lush' feiture is to be calculated, where the ington in The Blake (1 W. Rob. Adm. contract is by the voyage, run, or share, Rep. 73) and The DvichessofKent (Ibid, see sect. 252. 283). (c) 17 & 18 Vict. 0. 104, s. 2S4. (c) MoUoy, B. 2, o. 3, s. 9; 2 Shower, {S) \Buttony. Thompson, li. R. 4 0. P. 167 ; 1 Ld. Eaym. 660. 330. It seems clear that if the seaman (/) Thompson v. CoUma, 1 B. & P. is engaged not for an entire voyage, N. R. 347. but by the month, wages already due (y) 17 & 18 Viot. o. 104, ». 251. cannot be forfeited even by the sub- CONTRACTS WITH SEAMEN. 55-5 properly inciirred by the master in procuring sucli conviction and 'Wages, how punishment." ^ff^l^ '■ forfeited. An entry of any of these offences ought forthwith to he made in the ofiB.oial log, and signed by the master, and if he be in the ship, a copy should be furnished to the culprit, or it shorJd be read over to him. An entry that this has been done, and of his answer, if any, should likewise be made ; and in default of this being complied with, any Court subsequently hearing the case may refuse to receive evidence of the offence {h). A similar provision is contained {i) in the Act, as to the entries in the log and the communication of them in cases of misconduct, for which the agreement imposes a fine to be deducted from the wages, which fine is to be paid over to the superintendent. By sect. 186, also, it is provided, that — " No seaman or apprentice shall be entitled to wages for any period during which he unlawfully refuses or neglects to work when required, whether before or after the time fixed by the agreement for his beginning work, nor unless the Court hearing the case otherwise directs, for any period during which he is lawfully imprisoned for any offence committed by him." Illness, death (k), and entering the Queen's service do not, as already stated (/), work a forfeiture of the seaman's wages. But by statute 30 & 31 Vict. c. 124, s. 8, it is provided — " Where a seaman is by reason of illness incapable of performing his duty, and it is proved that such illness has been caused by his own wilful act or default, he shall not be entitled to wages for the time during which he is by reason of such illness incapable of per- forming his duty." {h) Ibid. o. 244. o. 104, ss. 194 to 204, and 25 & 26 Vict. (») Ibid. s. 256. o. 63, ss. 20, 21. (i) As to the wages and effects of (?) Ante, p. 541. deceased seamen, see 17 & 18 Vict. 556 MERCANTILE CONTRACTS. Section IV. — Remedies of Seaman for his Wages. Remedies of Jt only remains to state the remedies which the law has pro- seaman forms , wages. vided for the recovery of seamen s wages. As already stated, twenty-four hours before the discharge of any seainan, the master must deliver to him, or to the superin- tendent if he is to he discharged hef ore him, an account of his wages, and all deductions, in a form approved hy the Board of Trade {m). The time within which the wages are to he paid and the penalty imposed for any delay without sufficient cause, have heen already mentioned (w). The superintendent before whom they are paid is also empowered to decide any question which the parties may agree by writing to submit to him (o) ; and, upon the final completion of the settlement, the master or owner and the seaman are to sign a mutual release of aU claims, which is to be settled by the superintendent. This is con- clusive, and in such cases no other evidence of a settlement is admitted {p). Before the recent statutes, if the hiring had been on the usual terms, and made by words or by writing only, and not by deed, and their wages were unpaid, the seamen, or any one or more of them, and every officer, except the master (whatever was the amount of wages in dispute), might sue in the Court of Admiralty, and, by the process of that Court, arrest the ship as a security for the demand, or cite the master (q) or owners per- sonally to answer them (r) ; and that, not only for the wages earned during the voyage, but for those earned in fitting the ship out, if the owners would not afterwards despatch it (s). This remedy still remains, and it is not confined to English subjects, but, generally speaking, is open to foreign seamen, (m) Ante, p. 644. 1206; the Boatswain, Magg v. Xing, 2 («) Ante, pp. 643, 544. Str. 858 ; 1 Barnard. 297 ; the Carpenter, (o) Ante, p. 646. Wheeler v. Thompson, 1 Str. 707 ; the [p) Ante, p. 546. Surgeon, Say. 136; the Mate, Bayleyv. {q) The Salaeia, 32 L. J. Adm. 41. Grant, 1 Ld. Eaym. 632 ; Salk. 33 ; {»•) Abbott, p. 490, 12th edit., citing Eead y. Chapman, 2 Str. 937. the Seamen, Winch, 8 ; Alleson v. (s) Welh v. Osmcm, 2 Ld. Raym. Marsh, 2 Vent. 181; Anon., 3 Mod. 1044; Wells v. Osmond, 6 Mod. 238; 379 ; Bern v. Parre, 2 Ld. Raym. Milh v. Gregory, Say. 127. CONTRACTS WITH SEAMEN. 557 whose claim is founded on the maritime law (^). Where the Remedies of seamen thus proceed against the ship, their claim is preferred to wages, all other charges on her (except salvage (m) and the maritime lien for damages arising out of damage done by a foreign vessel in a collision for which she is to blame {x) ), since to their labour alone is her preservation and existence attributable [y). If the agreement were by deed, or contained special terms, the sea- men's remedy was by action in the Courts of common law (z), which remedy was also open to them in cases where the Admi- ralty had jurisdiction, and it was the . only one to which the master could, in general, have recourse, if he failed to reimburse himself, as he may, out of the ship's freight and earnings (a). But now, by sect. 10 of the Admiralty Court Act, 1861 (6), claims by seamen for wages, whether they be due under a special contract or otherwise, and also claims by masters for their wages and disbursements on account of the ship, subject to the exceptions presently mentioned (c), may be preferred in the Admiralty Division of the High Court of Justice (d) ; pro- vided that if less than 50/. is recovered, the plaintiff is not entitled to costs without a certificate from the judge (e). County Courts having Admiralty jurisdiction have jurisdiction over all claims for wages to the amount of 150/., or to any amount if the parties agree (/). Whether the party sued in the Court of Admiralty or elsewhere, the proceeding must have been, and where available, must stUl be, commenced withia six years, except ia case of disability [g). The seamen have a right to sue (<) Abbott, p. 489, 12th ed. ; The Rob. 52 ; The Debreeaia, 3 W. Rob. Golubchiek, 1 W. Rob. 143. In some 33 ; The Sarriet, Lush. 285. oases English seamen are restrained (a) Read v. Chapman, 2 Str. 937 ; The from suing abroad. See 17 & 18 Viot. Faeourite, 2 C. Rob. Adm. Rep. 233 ; 0. 104, s. 190, infra, p. 569. Ragg v. King, 2 Str. 858 ; Clay v. Sud- («) The Gmtaf, 31 L. J. Adm. 207. grave, Salk. 33 ; 1 Ld. Raym. 676 ; 12 (x) The Elin, 8 P. D. 129. Mod. 406 ; Garth. 518. But see be- (y) The Favourite, 2 C. Rob. 232; low. The Salacia, 32 L. J. Adm. 41. (4) 24 & 25 Vict. o. 10, a. 10. {z) See Abbott, p. 490, 12th edit. ; (c) Post, pp. 659 et seq. The Sydney Cove, 2 Dods. 12 ; Opy v. (i) 36 & 37 Viot. o. 66, ss. 16, 34, Child, Salk. 31 ; Day v. Searle, 2 Str. 88, 89. 961 ; Row V. Nappier, 4 Burr. 1944 ; [e) 24 & 25 Vict c. 10, a. 10. Menetone v. Gibbons, 3 T. R. 267 ; £ticlc {/) 31 & 32 Vict. o. 71, s. 13. T. Attwood, 2 Str. 761 ; The Mona, 1 (?) Stat. 4 Anne, o. 16, ss. 17, 18 W. Rob. 137; The Riby Grove, 2 W. 19; 21 Jac. 1, c. 16, sg. 3, 7. wagres. 558 MERCANTILE CONTRACTS. Remedies of either the master (A) or the owners ; and, whenever it becomes seaman for his , j j.i i. • n _i. -x T j.i necessary to produce the agreement m Oourt, it lies on them, " not upon the seamen, to produce it («). Formerly the master, if he failed to reimburse himself, as he may, out of the ship's freight and eamiugs, had no remedy for his wages except in Courts of common law {k). But the Merchant Shipping Act, 1854 (/), provides that " Every master of a ship shall, so far as the case permits, have the same (m) rights. Hens, and remedies for the recovery of his wages which by this Act, or by any law or custom, any seaman, not being a master, has for the recovery of his wages ; and if in any proceeding in any Court of Admiralty or Vice-Admiralty touching {he claim of a master to wages, any right of set-ofE or counter-claim is set up, it shall be lawful for such Court to enter into and adjudicate upon all questions, and to settle all accounts then arising or outstanding and unsettled between the parties to the proceeding, and to direct payment of any balance which is found to be due." The Admiralty Court Act, 1861 (■«), by sect. 10 enacts that the Admiralty Division (o) of the High Court shall have juris- diction " over any claim by the master of any ship for wages earned by him on board the ship, and for disbursements made by him on account of the ship." These provisions, it was once thought, gave the master a maritime lien on the ship and freight. The contrary having been decided by the House of Lords [p), it was expressly enacted by 52 & 53 Vict. c. 46, s. 1, that " every master of a ship, &c. shall, so far as the case permits, have the same rights, liens and remedies for the re- covery of disbursements properly made by him on account of the ship, and for liabilities properly incurred by him on account of the ship, as a master now has for the recovery of his In the case of British and colonial ships, these remedies have (A) The Salada, 32 L. J. Adm. 41. 190 ; The Salaeia, 32 L. J. Adm. 41. (i) Bowman v. Mcmeehncm, 2 Camp. / («) 24 Vict. o. 10. 315 ; 17 & 18 Vict. o. 104, s. 165. (o) 36 & 37 Vict. c. 66, as. 16, 34, [k) The Favourite, 2 C. Rob. Adm. 88, 89. Rep. 233, at p. 237. \p) The Sara, 14 App. Oas. 209, (?) 17 & 18 Vict. 0. 104, s. 191. oTerrtding The Mary Ann, L. R. 1 A. (m) The Princess Selma, I Lush. & E. 8. CONTEACTS WITH SEAMEN. 559 been considerably qualified, and more summary proceedings Remedies of substituted. The Merchant Shipping Act, 1854, provides, by wages, sect. 188, that — " "Any seaman or apprentice, or any person duly authorised on Ms behalf, may sue ia a summary manner before any two justices of the peace acting in or near to the place at which the service has terminated, or at which the seaman or apprentice has been discharged, or at which any person upon whom the claim is made is or resides, or in Scotland either before any such justices, or before the sheriff of the county within which any such place is situated, for any amount of wages due to such seaman or appren- tice not exceeding 60^. over and above the costs of any pro- ceeding for the recovery thereof, so soon as the same becomes payable ; and every order made by such justices or sheriff in the matter shall be final." And by sect. 189, that — " No suit or proceeding for the recovery of wages under the sum of 501. shall be instituted by or on behalf of any seaman or apprentice in any Court of Admiralty or Vice-Admiralty, or in the Court of Session in Scotland, or in any superior Com-t of Eecord in her Majesty's dominions (q), unless the owner of the ship is adjudged bankrupt or declared insolvent, or unless the ship is under arrest or is sold by the authority of any such Court as aforesaid, or unless any justices acting under the authority of this Act refer the case to be adjudged by such Court, or unless neither the owner nor master is or resides within twenty miles of the place where the seaman or apprentice is discharged or put ashore." , Though in terms confined to " any seaman or apprentice," these sections are applicable to the master also (r). The right to sue in Courts abroad is also restricted in the following instances (s) — " No seaman who is engaged for a voyage or engagement which is to terminate in the United Kingdom shall be entitled to sue in any Court abroad for wages, unless he is discharged with such sanction as herein required, and with the written consent of the master, or proves such ill-usage on the part of the master or by his authority as to warrant reasonable apprehension of danger to the life of such seaman, if he were to remain on board ; but if any (?) The Marriet, Lush. 285 ; Sossi (r) The Blakeney, Swab. 428. V. Grant, 5 0. B. N. S. 699. (s) Sect. 190. ■wages. 560 MERCANTILE COKTUACTS. Eemedies of seaman on his return to the United Kingdom proves that the master ^a™t°*™^^ or owner has been guilty of any conduct or default which, but for - this enactment, would have entitled the seaman to sue for wages before the termination of the voyage or engagement, he shall he entitled to recover in addition to his wages such compensation, not exceeding twenty pounds, as the Court hearing the case thinks reasonable." Upon any such proceeding {t) — " Any question concerning the forfeiture of, or deductions from, the wages of any seaman or apprentice may be determined in any proceeding lawfully instituted with respect to such wages, notwith- standing that the offence in respect of which such question arises, though hereby made punishable by imprisonment as well as for- feiture, has not been made the subject of any criminal proceedings." The Admiralty Division of the High Court may entertain the claims of seamen against foreign ships ; but notice of the action must be sent to the consul of the country to which the ship belongs (m). (0 By sect. 254. (w) T!ie Nina, L. E. 2 P. 0. 38. See The Serzogin Marie, Lush. 292. ( 561 ) CHAPTER X. APPRENTICESHIP. The contract of apprenticesHp is, as its name denotes, a Apprentioe- bargain for instruction {a) to be bestowed by one person iipon ^ 'P" another, who, in return, agrees to give up his whole time and services to his instructor, and frequently also to bestow upon him a pecuniary remuneration. The relation which it creates is one of very ancient origin, and the reciprocal rights and duties which it involves greatly resemble those of parent and child ; for the master is entitled to the whole produce of the labour of his apprentice {h), and may, in case of disobedience by the latter to his lawful commands, or upon the detection of any immorality in his behaviour, ad- minister to him, if an infant, reasonable and wholesome corporal chastisement, such as a father may inflict upon his child, or a schoolmaster upon his pupil ; the right to do so issuing in each case out of the patria potestas, the delegation of which has been, in all ages, allowed for the sake of the good government and education of young persons (c). The state of the apprentice, however, differs from that of a school-boy in this material particular, viz., that an apprentice- ship, being, at common law, looked upon as a contract between (a) See St. Farwraa v. Parish of Barber v. Dennis, 1 Salk. 68 ; Foster v. Clapham, 6 Jur. N. S. 700 ; JRex v. Stewart, 3 M. & S. 191 ; Morison v. Crediton, 2 B. & Ad. 493 ; Eex v. Thompson, L. R. 9 Q. B. 480. Ightham, 4 Ad. & E. 937 ; BUen v. {c) 1 Bl. Com. 428 ; Penn v. Ward, Topp, 6 Exoh. 424. 2 C. M. & R. 338. The master oamiot [b) See Anon., 12 Mod. 415 ; Fuck- delegate this power: 9 Co. 76. ington v. Chepton Bemchamp, Str. 582 ; S. — VOL. I. 562 MERCANTILE CONTRACTS. Apprentice- ^j^g master and the apprentice, coiild not have been created with- out the intervention of the latter (c) . In the case of parish apprentices, this mutual consent is now, however, dispensed with, and the whole subject regulated by statutes, which will be found collected in the various treatises on poor laws (/). The contract of apprenticeship is one of those by which a person under age is permitted by law to bind himself, upon that general ground adverted to by Lord Mansfield in Drury v. Drury (g), viz., "that if an agreement be for the benefit of an infant, it shall bind him" (h). He may indeed elect to avoid the agreement at his full age (f), or even while linder age, if it be manifestly for Ids benefit so to do {k). The stat. 5 Eliz. c. 4, created many regulations and restric- tions respecting the mode of binding and the qualifications of apprentices; which being found extremely inconvenient in practice, it was, by 54 Greo. 3, c. 96, enacted, that any person may take or become an apprentice, though not according to the provisions of that Act, provided that the statute shall not pre- judice the customs or by-laws of any corporation or company. The contract of binding must also, by the statute of Elizabeth, have been by deed indented {t). And though 54 Greo. 3, c. 96, has now dispensed with that formality, still, even under it, a ■writing is required, and a mere parol binding would not con- stitute an apprenticeship. The binding is, however, even now, usually effected by («) Rexy.Amesby, 3B. &Ald.684; S. 257. See Maddon v. WliiU, 2 T. Eex V. Cromford, 8 East, 26. E. 159 ; Bex v. Weddingtm, 1 Bott, (/) See Bum's Justice, tit. Appren- 532, 6tli ed. tices and Poor ; and see a summary of (i) Ex parte Davis, 5 T. E. 715. them, Arch. Poor Laws. See also 4 & (A) Sex v. Great Wigston, 3 B. & C. 5 Will. 4, c. 76, s. 61 ; 7 & 8 Vict. 484. See Sex v. Gwinear, 1 Ad. & E. I). 101, s. 12; and as to apprentices to 152; Seg. v. Lord, 12 Q. B. 757; the sea service, 17 & 18 Vict. u. 104, Cooper v. Simmons, 31 L. J. M. 0. 138; ss. 141 to 145 indusive. ZesHe v. Miepatrich, 3 Q. B. D. 229 ; (g) Per Sutler, J., in Maddon v. Meakins v. Moi-ris, 12 Q. B. D. 352. JFhite, 2 T. R. at p. 161. (i) See Smithy. Birch, 1 Bott, P. L. (A) Accord. Sex v. St. Fetrox, 4 528, 5th ed. ; Castor v. Aides, Salk. T. E. 196 ; Sex v. St. Mary's, 1 Bott, 68. 605, 6th ed. ; Sex v. Armdel, 6 M. & APPKENTICESHIP. 663 deed (»), containing covenants by the master and apprentice for Apprentioe- the faithful discharge of their respective duties towards each other. These covenants, whether entered into by the infant and master, or by the master and some other person, are generally (o) independent, and the performance of neither side is a condition precedent to that of the other (j»). An infant may, as has been seen, bind himself an apprentice, yet no action will lie against him upon any covenants contained in the instru- ment by which he does so {q) . The master is not, however, without remedy for the misbehaviour of his infant apprentice, since he may, as we have seen, correct him personally if he do amiss, taking care to use due moderation in the infliction of the punishment. He may also complain of him before justices of peace (r). A court of summary jurisdiction may, under the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90), make an order directing the apprentice to perform his duties, and, in the event of non-compliance, order him to be imprisoned for a period not exceeding fourteen days (s. 6(11)). It may also rescind the instrument of apprenticeship, ordering the whole or any part of the premium to be repaid. The master cannot, under this Act, enforce a deed of apprenticeship containing covenants not for the benefit of the apprentice, if an infant — e.g., a stipulation that the master need not pay wages during a " turn out " (s) — or maintain an action against any adult per- son who has covenanted for the good behaviour of the infant in the deed of apprenticeship [t) ; and the liability of such a ()i) See the ordinary printed form Phillips v. Clift, 4 H. & N. 168. inBum's Justice, ..ijtjprOTiices; and see (}) Gilbert v. Fletcher, Cro. Car. Rex V. Sarrirtgton, 6 N. & M. 165. 179 ; 1 Bott, 627, 5th ed. (o) Westwick v. Theodor, L. R. 10 (r) 32 Geo. 3, c. 57 ; 33 Geo. 3, Q. B. 224 ; Phillips v. Clift, 4 H. & N. o. 55 ; 5 & 6 Viot. o. 7 ; and 38 & 39 168. But when a master oontraots to Viot. o. 86. See Burn's Justice, tit. instruct an apprentice in several trades Apprentices ; Cooper v. Simmons, 31 L. and abandons onte, he cannot sue for a J. M. C. 138. subsequent refusal to serve ; Ellen v. («) MeaJiins v. Morris, 12 Q. B. D. Topp, 6 Exch. 424 ; and see Haymond 352. v. Minton, L. R. 1 Ex. 244. (i) WhitUy v. Loftus, 8 Mod. 190 ; (p) Winstone v. Zinn, 1 B. & C. Elwesv. Vaughan, ILut. 386; Branch 460 ; Sughes v. Eumphreys, 6 B. & C. v. Ewington, Dougl. 518. 'Emstj slight 680 ; Wise v. Wilson, 1 C. & K. 662 ; absence is not a breach of the oove- oo2 564 MERCANTILE CONTRACTS. Apprentice- person continues, thougli the infant should, on coming of age, — : elect to avoid the deed (m). The apprentice, on his part, is entitled to have the covenants in the indentures duly performed towards him (»). And, even • independently of the instrument of apprenticeship, the master may be sued, or, in a gross case of misconduct, even indicted, for ill-usage and neglect of him {h). By 14 & 15 Yict. o. 11, s. 1, the master wilfully neglecting to provide necessary food, clothing, or lodging, when bound to do so, or maliciously assault- ing the apprentice, whereby his life is endangered, or it is likely his health may be permanently injured, may be imprisoned for a term not exceeding three years (x). It would be murder in him were he to suffer an apprentice of tender years to suffer for want of food. An apprentice, though absent from work during a temporary illness, is yet entitled to any wages provided by the deed of apprenticeship to be paid (y). The apprenticeship may be determined by consent of parties ; provided, if the apprentice be under age, that the dissolution be for his advantage (s), and provided the indentures, if any, be got rid of {a) ; or by an infant's election at his full age (6) ; or by the master's bankruptcy (c) ; or by the death of the master {d), or the death or permanent illness of the ap- prentice (e) ; or by the intervention of the court of quarter sessions ; or a county court judge ; or a stipendiary magistrate ; nant against absenting : Wright v. Kex v. Friend, E. & R. C. C. 20. Gihon, 3 0. & P. 683 ; and illness [x) See R. v. Self, 1 Leaeh, 137. affords a good answer: Boast v. Mrth, [y] Patten r. Wood, 61 J. P. 649. L. E. 4 C. P. 1. {zj Sex v. Weddington, Burr. S. C. (k) Cuming v. Sill, 3 B. & Aid. 69. 766. As to the measure of damages, see (a) Sex t. Bow, 4 M. & S. 383. Zewis V. Seaeley, 1 H. & C. 618. (i) Wray v. West, 15 L. T. 180. (j>) As to Tvliether the law would (c) 46 & 47 Viot. o. 52, s. 41. imply a covenant to employ the ap- (d) Farrow v. Wilson, L. E. 4 C. P. prentice, see Aspdin v. Austin, 5 Q. 744; Whincupv. Sugkes,Xi.^. 6 O.P. B. 671 ; Dunn v. Sayles, Id. 685 ; Seg. 78. Unless the indenture provides V. Lord, 12 Q. B. 767 ; Worthington v. for the service continuing with the Sudlow, 2 B. & S. 508. As to any master's executors : Cooper y. Simmons, remedy in Equity, see WebbY. England, 7 H. & N. 707 ; 31 L. J. M. C. 138. 29 Beav. 44. [e] Boast v. Firth, L. E. 4 0. P. 1 ; ' (w) Sex T. Ridley, 2 Camp. 650 ; Robinson v. Davison, L. E. 6 Ex. 269. APPRENTICESHIP. 565 or jufltioes (/). The tritimals hare the power either of making Apprentice- an order directing the apprentice to perform his duties, or they may rescind the instrument of apprenticeship, and order the return of the whole or any part of the premium [g), upon complaint, founded on just grounds, of either the master or apprentice. It is necessary, before leaving this subject, to say a few words upon what is called the assignment of an apprentice. A master cannot assign an apprentice without the consent of the latter {h) . And though, by the consent of all parties, the services of the apprentice may be transferred, yet, in the generality of cases, this operates as an agreement between the master and the transferee that the apprentice shall, with his own consent, perform his contract to the former by doing service to the latter (i). By the custom of London, indeed, an assignment, properly so called, of an apprentice, may be made by one freeman to another {k), so as to transfer the benefit of the covenants to the assignee. An apprentice bound to serve a firm, W. E., their partners and successors, is not bound to serve when the firm is dissolved and part of the business is carried on at L. by two of the partners, and part at D. by other two. There is an implied condition in indentures of apprenticeship that the contract is to be performed at the place where the business was carried on when the contract {I) was concluded. " There is a broad distinction between this case and that of an apprentice taken iato the house. In the latter case, I am inclined to think that the master would be entitled to take the apprentice with him if he removed to another place, and that it would be beyond the (/) See 5 Eliz. o. 4, s. 35, and 64 signed was in one case held void : Geo. 3, 0. 96, s. 3, and Sawkeaworth' s Some v. Slake, cited 2 Str. 1267. and Sillan/s case, 1 "Wms. Saund. 316, (») SeeAmtin v. llccles, I Ld. Raym. and notes. 38 & 39 Vict. u. 90, and 683 ; S. C, 1 Bott, 580, 6th ed. Bum's Justice, tit. ^^;))e««ti!es. (i) Com. Dig. " London " ; Keble, (ff) 38 & 39 Vict. 0. 90, s. 6. 256. (A) Coventry v. Woodhall, Hob. 134 ; (T) Baton v. Western, 9 Q. B. D. Baxter v. BurfieU, 2 Str. 1266. An 636. awatd that an apprentice shall be as- 566 MERCANTILE CONTKACTS. Apprentice- power of the apprentice to refuse to go. But tere the appren- tice was not in the house, but was provided with hoard and lodging by his father " (m). The stamp on Apprenticeship Instruments is now regulated by 33 & 34 Yict. c. 97 («). (m) lb., per Sir James Sannen, at p. 61. of premitun, or part of the same 641 . sum, 5s. The premium must be truly (») Sects. 39 and 40, and sohed. set forth : o. 40. Where no premium, 2s. Qd. Tor every ( 567 ) CHAPTER XI. GUARANTIES. Section 1. Nature and Form of Contract. 2. Surety, how far liable. 3. Surety, how discharged. 4. Surety, how indemnified. 5. Representations in the Nature of Guaranties. Section I. — Nature and Form of Contract {a). A GUARANTY IS a promise to answer for the payment of some Nature and debt, or the performance of some duty, in case of the failure of tract. another person, who is himself, in\the first instance, liable to such payment or performance (6). A mere offer to guarantee is (a) As disputes are frequently oeoa- sioued by the inartificial wording of guaranties, the following general form, which may be safely adopted in any case, may, it is thought, be useful : — London, the — day of — , 18 — . In consideration that Mr. C. D. will at my request {or, "has at my request ") — [Awe state the consideration for which the guaranty is given], I do hereby guarantee to him the said Mr. C. D. [here state the sum or thing guaranteecC], This guaranty is to con- tinue in force for the period of [state period if agreed om] and no longer. Witness my hand, A. B. (J) Fell on G-uaranties, p. 1. Prob- ably the following is a better defini- tion : "A contract of guaranty is an express contract between the surety {the person who gives the guaranty) and the creditor (the person to whom the guaranty is given) to perform the promisB or discharge the liability, actually incurred, or in contemplation, of a third person called the principal debtor, in case of his not performing the promise or discharging the lia- bility." See De Colyar on Guaran- ties, p. 54, 2nd ed. ; Imperial Bank y. London and St. Katherine Dock Co., 5 Ch. D., per Jessel, M. E., at p. 200. The definition in the Indian Contract Code, s. 126, is as follows : — " A contract of guaranty is a contract to perform the promise or discharge the liability of a third person in case 568 MERCANTILE CONTRACTS. Nature and insufficient until accepted (c). But if the guaranty he given tract. at the request of the person to whom it is given, no notice of acceptance by him is necessary (d). By stat. 29 Car. 2, c. 3, s. "No action shall be brought whereby to charge the defendant Tipon any special promise to answer for the debt, default, or mis- carriages of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged ther^ith, or some other person thereunto by him lawfully authorised." This section prevents a verbal guaranty from being stied upon (e). It is to be observed, however, that verbal guaranties are not void. Thus, if money have been paid in pursuance of it, the money cannot be recovered back (/). Though no action can be brought upon a guaranty which does not satisfy the provisions of the statute, yet the Court will enforce it against an attorney who has undertaken to pay his client's debt and costs, by virtue of their summary jurisdiction over their own officers iff). If a party admit that he has made a binding guaranty, by paying money into Court on a claim charging him with it, that renders prool'of a written instrument unneces- sary (h) ; but it is otherwise if he do an act which merely admits that an agreement was made, without admitting that such a one was made as would be binding under the statute («). of his default." This does not em- the statute must now be specially phasise the fact that the contract must pleaded ; Rules of Supreme Court, he express. The definitions must vary 1883, Ord. XIX., r. 20. according as it applies or not to a (/) Shaw v. Woodcock, 7 B. & C. guaranty within the meaning of the 73. See Griffith v. Totmg, 12 East, Statute of Frauds. 513. (c) M'lver v. Eicha/rdson, 1 M. & S. {g) lEvcms v. Dimcombe, 1 C. & J. 557. 372 ; Senior t. Butt, HjI. T. 1827, {d) See MonUij v. Tinehler, 1 C. M. K. B., and Fayne t. Johnson, Trin. T. & K. 692 ; Davies v. Richards, 8 Davis 1787, Exch., there cited; InreGreaves, (IT. S. S. C), at p. 527. cited 5 Dowl. 187. (c) Though it he given abroad and (A) Middleton v. Brewer, Peake, 15 ; binding there: Leroux v. Brown, 12 Preo. iu Ch. 208. See Iwasy. Dixon, C. B. 801. But see this questioned, 22 Q. B. D. 367. per Willes, J., in Williams v. Wheeler, {i) Rondeau v. Wyatt, 2 H. Bl. 63. 8 C. B. N. S. 299. The defence of GUARANTIES. 569 A del credere contract is not a guaranty witliui the Statute of Nature and . , , , form of con- Frauds. The authorities are not at one as to the reason for tract. the exclusion of such contracts. That given by Parke, B., in Couturier v. Sastie (k) is : — " If they (the agents) had for a percentage guaranteed the debt owing, or performance of the contract by the vendee, being totally unconnected with the sale, they would not be Uable, without a note in writing signed by them ; but being the agents to negotiate the sale, the commission is paid in respect of that employment ; a higher reward is paid in consideration of their taking greater care in sales to their customers, and precluding all question whether the loss arose from negligence or not, and also for assuming a greater share of responsibiUty than ordinary agents, namely, responsibility for the solvency and performance of their contracts by their vendees. This is the main object of the reward ; and though it may terminate in a liabQity to pay the debt of another, that is not the immediate object for which the consideration is given" {I). It has been held that the statute applies, although the action be not brought upon the parol agreement, provided the effect of allowing it to be maintained would be to charge the defendant thereby (■«). But when a person, sued upon his acceptance, pleaded that it was for the plaintiff's own accommodation, he was allowed to show that it was discounted to raise money which the plaintiff had undertaken to pay pursuant to a verbal guaranty (o). As conformity to the provisions of the statute is thus requisite, it will be proper to consider them separately. (i) 8 Ex. at p. 55. at the conclusion that the undertaking {I) That the law is as stated in the was not within the Statute of Frauds." text is clear. But the above reasons The del credere agent is not primarily are unsatisfactory. In Wickhmn v. liable. See ante, p. 128. Wickham (2 K. & J. 478) Wood, V.-C, {«) See Carrington v. Soota, 2 M. & suggests that the judges in (7oMteri«r V. W. 248; Sykes \ ^ Dixon, 9 Ad. & E. Haatie, supra, thought that the agree- 693. But see Cressuiell v. Wood, 10 ment "was not a simple guaranty. Ad. & E. 460; Eastwood \. Kenyon, 11 but a distinct and positive undertaking Ad. & E. 438. on his part on which he would become (o) Creaawell v. Wood, 10 Ad. & E. primarily liable; otherwise, I cannot 460. see how the learned judges could arrive 570 MERCANTILE CONTRACTS. Nature and JVo action shall be brought, to charge th^ defendant, upon any foiinof con- a ,-, i t± i j> i± tract. special promise to answer joi' the debt, default, or miscarrmge of another. — In order that a contract may fall within these terms, it is essential that it should be for the payment or performance of something for which another person is liable, or -will, in the contemplation of the parties, become liable. " There can be no suretyship," said Lord Selborne in Lakeman v. Mountstephen [p), " unless there be a principal debtor, who, of course, may be con- stituted in the course of the transaction by matters ex post facto, and need not be so at the time ; but until there is a principal debtor there can be no suretyship. Nor can a man guarantee anybody else's debt unless there is a debt of some other person to be guaranteed." For instance, where A., in consideration that B. would not sue J. S., promised to pay the money due from J. S., this was held to be within the statute {q) ; for J. S.' was liable to the payment of his debt before and after A.'s . promise, which therefore was, strictly, " to answer for tlie debt of J. S." But, where it was agreed between A., his creditors, and one J. S., that J. S. should pay the creditors ten shillings in the pound, to be received by them in full satisfaction, and that they should assign their debts to J. S., this contract was held not within the statute, because J. S. had not contracted to pay the debts of A., but to purchase them from A.'s creditors, and would, after such purchase, have a right to use the names of the creditors, in order to recover the debts from A. (r). The original liability must not be extinguished. Thus, where the defendant, in consideration that the plaintifiE would discharge out of custody a person whom he had taken on a ca. sa., pro- mised to pay the debt on a certain day, or render that person, the Court held the promise not within the statute, because the (p) L. E. 7 H. L. at p. 24 ; Pothier Irmich, 2 M. & G. 644. on Contracts, Vol. I. (r) Anstey v. Mardm, 1 B. & P. N. E. (q) BotheryY. Gurry, B. N. P. 276 ; 124; Stephemir. Sqmre,bM.oA.'2,Qfi. See accord. Kirhham v. Matter, 2 B. & Bead ir. Nash, 1 Wils. 305 (liability for Aid. 613; Fish\. Eutchinson,Q,'W'Sis. sums bya minor not -within the statute). 94; WinckworthY. MiUs, 2 "EiSf. i^i ; ii!ea(? v. iVasA has been questioned. See T. Bond, 1 Camp. 4; Bx 1 Wms. Saund. 211 A, u. 1. parte Adney, Cowp. 460; Prenc/i v. GUARANTIES. 571 debt was gone by the discharge of the debtor out of custody (s). Nature and In Thomas v. Cooh {t) it was laid down that a promise to tract. indemnify was not within the statute, and this seems generally to be the better opinion. A transfer to a creditor of a debt due to the debtor from a third person is not within the statute. Thus, if 0. be A/s debtor, and B.'s creditor, an agreement by B. to pay his debt to A. in dis- charge of O.'s liability is not within the statute (m). But, qumre, if the debt from B. to 0. had been contingent at the time of making such agreement {x). A promise to pay another man's debt out of that other man's own funds, when they shall come to the hands of the person proniising, or out of certain funds to be received by him, is not within the statute («/). In such a case no third person is answer- able for the promise. The promise must be made to the creditor. The Court of Queen's Bench decided, in Eastwood v. Kenyan (s), that if A. promise B. that he (A.) will pay to C. a debt due to 0. from B., that promise is not within the 4th section of the Statute of Frauds, and, consequently, need not be reduced to writing. The Court further stated its opinion that the statute applies only to promises made to the person to whom another is answer- able {a) ; and this opinion has been since confirmed and acted («) Goodman v. Chase, 1 B. & Aid. within the statute). 297. («) WiUon v. Coupland, 5 B. & Aid. {<) 8 B. & 0. 728. In the 7th ed. 228. of this work it is stated that "a pro- {x) See Parkins v. Moravia, 1 C. & mise to indemnify may or may not be P. 376. There seems, notwithstand- within the statute according to ciromn- ing the observations of Abbott, C. J., stances." This is submitted to be the to the contrary, no rational distinction correct rule in regard to express pro- between the two cases. mises to indemnify. SeeFolloci, C. B., (y) Andrews v. Smith, 2 C. M. & E. in Cripps v. Eartnoll, 4 B. & S. 419 ; 627 ; Stephens v. Pell, 2 C. & M. 710 ; Meader v. Kingham, 13 0. B. N. S. 344 ; Dixon y. Satfield, 2 Bing. 439. See Wildes V. Dudlow, L. R. 19 Eq. 198. Walker v. Rostron, 9 M. & W. 411. See further on this point Cfreen v. Cress- (z) 11 Ad. & E. 438. ivell, 10 Ad. & E. 453 ; Cripps y. Sart- (a) In a note to the original and noil, 2 B. & S. 697 ; 4 B. & S. 414 ; subsequent editions, doubts are cast Batson v. King, 4 H. & N. 739 ; Mallet on the accuracy of Eastwood v. Ken- V. Bateman, 16 C. B. N. S. 530 ; L. K. yon, for the following among other 1 0. P. 163 (promise to give a guaranty reasons: — (1) because promises, such 572 MERCANTILE CONTRACTS. Nature and form of con- tract. upon by the Ootirts of Exchequer (6), Common Pleas (c), and by Malins, Y.-O., in Wildes t. Budlow (d). A distinction was once taken between a promise to pay for goods, &c., for another, before and after delivery (e) ; but this is overruled, and it is now clear that, if the person for whose use the goods are furnished is liable at all, any promise by a third person, on sufficient consideration, to pay that debt must be in writing (/). In a word, the question by which it must be tested, whether a contract be or be not within the statute, is, WTiat is the promise ? Is it a promise to answer for the debt, default, or miscarriage of another, for which that other remains liable? If so, it must be in writing {g). The reader must, however, be apprised, that it has been thought to follow from some of the decisions (h), that a man may bind himself to pay another's debt by a parol promise founded on a new consideration. This idea has been contro- as the promise in that case, may be as complex, and the length of time that is to precede their accomplishment as great, as in the case of an ordinary guaranty, and they may, therefore, equally need written evidence ; (2) be- cause cases may be put in which these promises woiild teoome, in effect, guaranties ; e.g., where the promise is made to the debtor, or the stranger as trustee for the creditor, or where the debtor or stranger afterwards assign to the creditor ; and (3) because the opinion expressed in Sastviood v. Ken- yon appears to diverge from Green v. Cresswell, 10 Ad. & E. 453. It is, however, observed : "In making these observations, however, it is intended only to suggest the possibility of a discussion which may hereafter arise, not to impugn the proposition cited from Eastwood v. Kenyan, which in- deed must ultimately be sustained if the meaning of the words, promise to answer for the debt, default, or mis- carriage of another, be taken, as they well may, to refer to a promise to become a substitute to every intent for that other — to answer to the same call to which he would have answered under pain of the same liability." See Batson v. King, 4 H. & N. 739 ; Cripps V. Sartnoll, 2 B. & S. 697 ; 4 B. & S. 414. (S) Sargreares v. Farsons, 13 M. & TV. 361. (c) Reader v. Kingham, 13 C. B. N. S. 344. {d) L. K. 19 Eq. 198. (e) Jones v. Cooper, Cowp. 228. (/) Matson v. Wharam, 2 T. R. 80 ; Anderson v. Mayman, 1 H. Bl. 120; Birkmyr v. l)ameU, 1 Salk. 27 ; S. C, 2 Ld. Eaym'. 1085. [g) 1 "Wms. Saund. 2U to 211 e; Bushell V. Beavan, 1 Bing. N. C. 103. (h) Boulditch v. Milne, 3 Esp. 86; Williams v. Leaper, 2 WUs. 308; 3 Burr. 1886, recognised in Castling v. Aubcrt, 2 East, 325 ; Edwards v. Kelly, 6 M. & S. 204; Bampton v. Paulin, 4 Bing. 264. See, however, Thomas T. Williams, 10 B. & C. 664. See Mallet V. Bateman, L. E. 1 C. P. 163 ; and Clancy v. Figott, 2 Ad. & E. 473. GUARANTIES. 573 verted, and tlie cases explained, and reconciled to the rule as Nature and TTT CI form of con- above stated, in an elaborate note, 1 Wms. Saund. 211c, n. 1 ; tract. wbere it is contended, that the nature of the consideration cannot affect the terms of the promise itself, unless, as in Goodman v. Chase (»), it be an extinguishment of the KabUity of the origiaal party. In the cases referred to, there was no principal debtor ; and, indeed, in Edwards v. Kelly, cited above, the judges all professed to decide, on the ground that the promise there was not to pay the delit of another (/c). Where A. has been concerned in inducing a tradesman to deliver goods to B., it often becomes a question whether the goods must be looked upon as actually sold to A., though delivered to B., or whether they must be considered as sold to B., A. becoming a surety for the price. In the former case, A. would be liable as a principal, and the contract would not fall within the statute. In the latter, A. would be liable only as surety, and only on a written guaranty. To decide this question, to whom was credit given? is, generally speaking (/), the province of a jury, who are to take into their consideration all the circumstances of the case {m). If, upon notice given to the plaintiff to produce his books, it appear that the credit was not originally given to A., that is strong, though not conclusive, evidence that he is but a surety (w). It has been laid down, that a verbal promise to pay the debt of another, and also do some other thing, is void altogether (o). This seems, however, to hold good in those cases only in which (t) Ante, p. 571, note («). p. 116. [h) The debt of the principal debtor [1] See a case in which it arose on was suspended. The cases (Edwards the record: Taylor v. Hilary, 1 0. M. V. Kelly, Williama v. Leaper, Bampton & R. 741. V. Faulin, supra) are not easily recon- (m) MoxmisUphen v. Lakeman, L. R. oilable. It has been suggested that 5 Q. B. 613 ; 7 Q. B. 196 ; 7 H. L. 17. they are examples of the rule that to (») Keate v. Temple, 1 B. & P. 158 ; bring a promise within the statute Croft v. Smalhcood, 1 Esp. 121. there must be an absence of all liability (o) Chafer v. Beckett, 7 T. R. 201; onthepartof the promisor, except such Thomas v. Williams, 10 B. & C. 664. as arises from express promise : Fitz- See Sead v. Baldrey, 6 Ad. & E. 459 ; gerald v. Dressier, 7 C. B. N. S. 374 ; Storr v. Scott, 6 0. & P. 241. De Colyar on Guarantees, 2nd ed. 574 MERCANTILE CONTRACTS. Nature and the parts of the contract are so blended together that they fonn of con- •-' j tract. cannot he separated {p). Unless the agreement, 8fc. — The term agreement comprehends contracting parties {q), a consideration, and a promise; and it was held, that not only must all these exist in fact, hut they must appear in the writing (r). It was, however, sufficient if the consideration could be gathered from the whole tenor of the writing; not that a mere conjecture, however plausible, would satisfy the statute, but it was enough if there was a well- grounded inference to be necessarily collected from the terms of the memorandum (s) . This rule, requiring parties to express in the terms of a popular instrument, rarely prepared under professional advice, a consideration which the law would recog- nise as sufficient to support a promise — gave rise to numberless questions. Many of these involved most subtle and refined distinctions, and justice and right were constantly defeated by technical objections, in consequence of the defective form of the instrument, though the facts would have supported it. In order to obviate such results, the Mercantile Law Amendment Act, 1856 (t), provided that :— "No special promise to be made by any person, after the passing of this Act, to answer for the debt, default, or miscarriage of another person, being in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully {p) Wood V. Benson, 2 C. & J. 94. 410 ; where the following guaranty (j) Williams v. Zake, 2 E. & E. waa held good : — 349; Williams v. Byrnes, 1 Moore, " I undertake to pay to E. J. 6/. 4s. P. C. Ca. N. S. 154 ; Vandenhergh v. for a suit ordered by D. P. Spooner, L. R. 1 Ex. 316 (but query, (Signed) " S. W. W." whether this case rightly decided) . And if ambiguous, parol evidence is (r) Wain v. Warliers, 5 East, 10 ; admissible to show what the parties Jenkins v. Seynolds, 3 B. & B. 14; meant: as where it was " Mr. D. iu- Saunders v. Wakejield, 4 B. & Aid. forms me you require some person as 695 ; 1 Wms. Saund. 211, in notis. guarantee for goods supplied to him by (s) See the judgment of Tindal, you in his business, I have no objection C. J., in Sawes v. Armstrong, 1 Bing. to act as such for payment of your N. 0. at p. 766; and of Patteson, J, account:" Hoad t. Grace, 7 H. & N. in James t. Williams, 5 B. & Ad. 494. 1109 ; Morrell v. Cowm, 7 Oh. D. 151. (<) 19 & 20 Vict. c. 97, s. 3. See it And see Jarvis v. Wilkins, 7 M. & W. in App. GUARANTIES. 675 authorised, shall be deemed invalid to support an action, suit, or Nature and other proceeding to charge the person hy whom such promise shall ^^j. have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document." This provision applies only to guaranties given after the passing of the Act (u), and, therefore, all instruments executed before that time remain subject to the same objections, and must be interpreted by the same rules as formerly prevailed. The necessity of the actual existence of a consideration, sufficient in law to support a promise (»), is not dispensed with, but its exist- ence is left open to oral proof. If, therefore, it be questioned, the person asserting a claim under a guaranty must show that it was based on a good legal consideration, which, as a practical rule {y), may be said to consist of any benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon him to whom it is made. A consideration, consequently, wholly past or executed will not support the promise ; thus, if A. be indebted to B., this will form no valid consideration for C.'s afterwards promising to pay that debt {%) ; the creditor yields nothing, nor does C. gain any advantage. But if an executed consideration has been moved at the request of the promisor, the case will be different. For instance, if B. had trusted A. at the instance or request of C, his promise to pay it couples itself with that antecedent request («), which induced him to allow it to be contracted, and will be supported by it. The consideration for a guaranty must also, according to some cases, be of some [h) value in contempla- tion of law. But if this proposition means more than that, there {«) 29th July, 1856. and 2 Smith's Lead. Ca. 266, 9th ed. ; [x) BeeRann-7. SugheSfi'Bxo.V.C. Saunders v. Wakefield, 4 B. & Aid. 27 ; 7 T. R. 350, n. (a) ; Meech v. 595 ; Allnutt v. Ashenden, 5 M. & G-. Kennegal, 1 "Vea. sen. 126 ; Hawhes v. 392 ; Hoad v. Grace, 7 H. & N. 494. Saunders, Cowp. 289 ; Cooper v. Joel, 1 (a) Payne v. Wilson, 7 B. & C. 423 ; De Or. ¥. & J. 240. Stead v. Liddard, 1 Bing. 196 ; Coe v. (y) See Sarris v. Venailes, L. E. 7 Buffield, 7 Moore, 252 ; James v. Wil- Ex. 235 ; Smith on Contracts, by Mai- liams, 5 B. & Ad. 1109. colm, p. 90 ; De Colyar on Guarantees (4) 1 Roll. Abr. 23, pi. 29 ; Edwards (2nd ed.), p. 20. v. Baugh, 11 M. & W. 641 ; Semple v. («) Warn V. Warlters, 5 East, 10, Tinh, 1 Ex. 74. 576 MERCANTILE CONTRACTS. Nature and must be a Consideration, it is iacorrect ; all that is requisite is tract. the existence of some consideration; for the Courts will not entertain the question of its adequacy (c), a question which the parties must be taken, in the absence of fraud, to have decided for themselves. A guaranty, therefore, to pay a debt in con- sideration of the creditor giving his debtor a certain {d) time for payment, however short, or to pay a past debt, however lajge, as well as any future debt, in consideration of the creditor con- tinuing his transactions or giving further credit to any amount, will be binding. And this will be the case, though the guaranty is simply conditional, and the creditor does not enter into any binding engagement to continue the transactions or give further credit, if the creditor subsequently satisfies the condition (e). Thus, in one case (/), the creditor, having bond fide continued his dealings with the principal debtors, the following guaranty was held to be an available security for the antecedent as well as the subsequent debt : — " As you are about to enter upon transactions in business with Messrs. Claridge, Brothers, & Nicholls, with whom you have already had dealings, in the course of which they may from time to time become largely indebted to you: in consideration of your doing so, I agree to be responsible to you for, and guarantee to you the payment of, any sums of money which that firm — whether it may consist of the same members as at present or others — now is or may at any time he indebted to you, so that I am not called on to pay more than the sum of 2,000Z." {g). (c) Brooks V. Eaigh, 10 Ad. & E. 341; S. C, sub nom. Crears\. Bum- 323 ; Coles v. Fack, L. E. 6 C. P. 65. j/eat, 56 L. J. Q. B. 518. (d) Barris v. VenaUes, L. E. 7 (/) Johnston v. Nicholls, 1 C. B. Ex. 235. As to the construction of 251. guarantees upon such a consideration, {g) And see Oldershaw v. King, 2 H. see Oldershaw v. King, 2 H. & N. 399, & N. 517 ; Chapman v. Stttton, 2 C. B. 517 ; from which it would seem that 63i ; Colboum v. Damson, 10 C. B. if no specific time be mentioned, a 765 ; Boi/d v. Moyle, Id. 644 ; White reasonable time will be implied, and v. Woodward, 5 C. B. 810. A moral the guaranty will be good: Semple v. consideration is not sufficient to support Pink, 1 Ex. 74, is open to doubt. See a promise {Littlefield v. Shee, 2 B. & Wynne v. Sughes, 21 W. R. 628 ; and Ad. 811, 812) ; except where the ex- Harris v. Venables, supra. press promise revives a precedent good («) Westhead v. Sproaon, 6 H. & N. legal consideration, which might have 728 ; Crears v. Hunter, 19 Q. B. D. been enforced at law, through the GUARANTIES. . 677 Though the parties and the promise must appear, the amount Nature and • / \ form of con - 01 the debt guaranteed need not be mentioned {h). tract. Or some memorandum or note thereof, 8fc. — ^Under this, as well as under the 17th section, the contract may be collected from several distinct papers, provided they can be sufficiently con- nected without oral testimony (i) ; and as the writing is neces- sary to evidence the contract, not to constitute it, the memorandum need not have been delivered to the party relying on it. There- fore, a letter from a man to his own agent, or to any one else, setting out the agreement, is sufficient (k). Signed by the parti/ to be charged, or some other person, there- unto, by him, hgally authorised. — See the remarks upon the corresponding words in the 17th section, post, Ch. XII., Con- tracts of Sah: It has been laid down that a signature by the party as a witness to the instrument containing or referring to the agree- ment is sufficient, if, when signed, he was aware of the con- tents (I) ; and in what part of the instrument the signature is placed is immaterial, whether at the beginning or end {m). The guaranty will be valid if it be signed by the party to be charged, though it be not signed by the other contracting party (;() ; for medium of an implied promise, had it plaintiflf). See Dobell v. JSutchimm, 3 not been suspended by some positive Ad. & E. 365. rule of law ; Wennall v. Adney, 3 B. & (/) Welford v. Beazely, supra ; Colea P. 247, 249, 253 ; Mastwood y . Emyon, v. Trecothiek, 9 Ves. 261, per Lord 11 Ad. & E. at p. 447. Eldon. But see Gosbell v. Archer, 2 {h) Bateman v. Phillips, 15 East, Ad. & E. 600. See on this subject, 272. post. (t ) Ridgway v. Wharton, 6 H. L. [m) Ogiloie v. Foljambe, 3 Mer. 62 ; Gas. 238 ; 27 L. J. Ch. 46 ; Sorsey v. Selby v. Selby, Id. 6 ; Knight v. Crock- Graham, L. R. 3 C. P. 9 ; Nene Valley ford, 1 Esp. 190; Right v. Price, Doug. Drainage Commissioners v. Dunhley, 4 241. See Bluck v. Gompertz, 7 Exch. Ch. D. 1 : Baumann v. Jones, L. K. 3 862. Ch. 608 ; and post. Chap. XII.', Con- (») Laythoarp v. Bryant, 2 Bing. tracts of Sale. N. 0. 735 ; Reuss v. Picksley, L. E. 1 (A) Per Lord Sardwicke, ia Welford Ex. 342. See Tawney t. Crowther, 3 r. Beazely, 3 Atk. 603 ; Bateman v. Bro. 0. C. 318 ; Sutton v. Gray, 2 Phillips, IS East, 272; Longfellow Ch. Ca. 164; Setoii v. Slade, 7 Ves. V. Williams, Peake's Add. Ca. 225 ; 266 ; Knight v. Crockford, 1 Esp. Gibson V. Eolland, L. R. 1 C. P. 1 190. (letter addressed to the attorney of S. — VOL. I. 1' P 678 MERCANTILE C0XTR4CTS. Natiare and (to use the words of Tindal, 0. J., in Laytlioarp v. Brymt (o)), form of oon- , • l-i i l\ • , tract. there is "no case,'nor any reason for saying that the signature of toth parties is that which makes the agreement. The agree- ment is in fact made before any signature." Both parties must, it is true, have concurred in making the agreement ; hut the statute only requires that one, Tiz., the party to he charged, should sign the document that is evidence to it. A letter of guarantee to a hank, signed in the name of the firm, and also by the individual partners, was held to create joint and several liabiKty(^). In consequence of the decision in Pasleyy. Freeman (q), which showed a mode of evading the 4th section by bringing an action in tort for deceit, alleging a false and fraudulent representation by the defendant with respect to the solvency of the third person, and that credit was given by the plaintiff on the faith of the representation, the 6th section of Lord Tenterden's Act (9 Geo. 4, c. 14) was passed. It declares that — " No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given con- cerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person to the intent or purpose that such * iSic. other person may obtainuredit, money, or goods upon,* unless such representation or assurance be made in writing, signed by the party to be charged therewith." The signature of an agent will not satisfy the statute (r). The law merchant implies a contract of suretyship between the drawer and indorsee, and between indorsers and subsequent holders, of bills of exchange (s). It is, in some cases, necessary that a guaranty should be stamped. The stat. 33 & 34 Viot. c. 97, imposes a stamp duty of 6d. on agreements, the subject-matter whereof is of the value of 51. and upwards, not otherwise charged. To this there are, however, some exceptions, particularly of agreements for the (o) 2 Bing. N. 0. at p. 744. See {r) Swift v. Jevisbwry, L. R. 8 Q. B. Meuss T. Meksley, L. E. 1 Ex. 342. 244 ; 9 Q. B. 30l! {p) Ex parte Sarding, 12 Ch. D. (s) See Bills of Exchange Act, 45 & 657. 46 Vict. u. 61, a. 55; Steele v. M'Mn- ( C.V.b^b. {^) 7 Hare, 50. See, also, Pemr («) 2 C. & J. 12. See Samuell v. berlon\. OaJces, i Euss. 154. Eowarth, 3 Meriv. 272, and Iloicell v. (A) L. R. 5 C. P. 595. See ante, Joiies, 1 C. M. & R. 97. p. 580. 582 MERCANTILE CONTRACTS. Surety, vhen contract in his capacity of broker." Eead literally, it was a Uable°^ ^"^ guaranty for tlie acts of J. S. But read in the light of the course of husiness, the guaranty was construed to extend to the debts of H., whom J. S. had appointed his substitute (/). Questions often arise (jr) as to whether a guaranty given to or for a firm continues in force after a change in its constitution. In order to lay down a. definite rule upon this point, the Mercantile Law Amendment Act (Ji) provides that — "No promise to answer for the debt, default, or miscarriage of another, made to a firm consisting of two or more persons, or to a single person trading under the name of a firm, and no promise to answer for the debt, default, or miscarriage of a firm consisting of two or more persons or of a single person trading under the name of a firm, shall be binding on the person making such promise in respect of anything done or omitted to be done after a change shall have taken place in any one or more of the persons constituting the firm, or in the person trading under the name of the firm, unless the intention of the parties that such promise shall continue to be binding, notwithstanding such change, shall appear either by ex- press stipulation or by necessary impHcation from the nature of the firm or otherwise." This provision merely expressed the then existing rule of construction («). A person who guarantees the due payment of a hill becomes liable for the interest, if it be not paid at maturity {m), Surety, how discharged. Section III. — Surety, how dischcmged. If the creditor dischaxge the principal, or enter into any agreement with him (m), by which the surety's situation is altered for the worse (o), or which deprives the surety of any (/) H., in thisremarkable case, was a partner of J. S., but was never a member or subscriber of Lloyd's. ig) See the eases ante, pp. 55, 56. (/i) 19 & 20 Vict. 0. 97, B. 4. -See App. (i) Backlimm v. Sail, 6 B. & S. 607. See Wright v. PMSseU, 3 WUs. 530; Weston T. Barton, i Taunt. 673. («») Aclcermann v. Ehremperger, 16 M. & W. 99. («) Fraser v. Jordan, 8 E. & B. 303. (o) Watts V. Shuttkworth, 6 H. & N. 235; 7 H. & N. 363; Sanderson v. Aston, L. E. 8 Ex. 73. GUAKANTIES. 583 rights, even though his position is improved {p), or which would Surety, how render a proceeding against the surety a fraud upon the prin- cipal, he discharges the surety. For instance, if he agree (i.e., enter into a binding contract (q) ) with the principal debtor to give him time; for then, if he forbear proceeding during the time given, he wrongs the surety by prolonging his responsibility. While, on the other hand, if he proceed against the surety, he gives him a remedy over against the principal, and thus exposes the latter to proceedings, contrary to the faith of his agreement (r). So, if he substitute a new agreement instead of that for the performance of which the surety was responsible («), or the duties of the principal be so altered as materially to afFect the peril of the surety (t) ; or, it has been said, if the principal be guilty of gross laches whereby a security to which the surety on paying the debt" would be entitled is lost («) ; or, if there has been connivance amounting to fraud (*). But the surety will not be discharged by mere forbear- (p) Folak V. Everett, 1 Q. B. D. at p. 67i, per Slackburn, J. (q) Fhilpot V. Briant, i Bing. Ill ; Clarice v. Sirky, 41 Ch. D. 422. (r) Combe v. Wolfe, 8 Bing. 156; Howell V. Jones, 1 C. M. & E. 97 ; Lewis V. Jones, 4 B. & C. 606 ; Isaac V. Daniel, 8 Q. B. 500 ; Sawkshaw t. Farkina, 2 Swanst. 639; Oakle;/ v. Taahcller, 4 CI. & F. 207 ; Oriental F. Co. V. Ovei-end, Gurney ^ Co., L. E. 7 Ch. 142; 7 H. L. 348; Davies v. Stainbank, 6 De Gex, M. & G. 670 ; Poohy V. Sarradine, 7 E. & B. 431 ; Uces V. Berrington, 2 Ves. jun. 640 ; Law v. E. I. Co., 4 Ves. jun. 824 ; Nisbet V. Smith, 2 Bro. C. C. 679; Ex parte Smith, 3 Bro. 0. C. 1 ; Ex parte Giford, 6 Ves. 805 ; Evans v. Bremridge, 25 L. J. Chano. 102, 334 ; Boultbee v. Stubbs, 18 Ves. 20; Ex parte Glendinning, Buck, 617; Keara- ley V. Cole, 16 M. & W. 128. See the notes to Lewis v. Jonea, ubi sup. As to the necessity of showing that the creditor knew him to be in reality only a surety in cases where he has contracted as principal, see Strong r. Foster, 17 C. B. 201 ; The Mutual Loan F. Ass. V. Stidlow, 6 C. B. N. S. 449 Fooley V. Sarradine, ubi sup. («) Whitcher v. Hall, 6 B. ft C. 269 ; Evans v. Bremridge, ubi sup. Eyre V. Bartrop, 3 Madd. 221 ; Boneer v. Cox, 6 Beav. 110. (<) Bonar v. Macdonald, 3 H. L. Ca. 226 ; Oswald v. Mayor of Berwick, 5 H. L. Ca. 856 ; S. C, 1 E. & B. 295 ; 3 E. & B. 653 ; The North W. Jft. Co. V. Whinray, 10 Ex. 77 ; Pybus v. Gibb, 6 E. & B. 902; Skillett v. Fktcher, L. R. 1 C. P. 217 ; 2 C. P. 469. In some instances the contract is divi- sible; see that case and Harrison v. Seymour, L. K. 1 C. P. 618. {u) Wulff T. Jay, L. R. 7 Q. B. 756 ; Sanderson v. Aston, L. R. 8 Ex. 73. But quaere as to the latter case. {x) Mayor of Durham t. Fowler, 22 Q. B. D. at pp. 406, 419. 684 MERCANTILE CONTRACTS. ■Surety, how ance (a), unless, indeed, there be some stipnlation in the '- guaranty binding the party guaranteed to use due diligence against the principal (J), nor by. acceptance of a collateral security (c), nor if he himself have agreed to the indulgence given the principal (•). If there are two or more sureties, the release of one discharges the others in all cases where the obligation of the co-sureties is joint or Joint and several, for there the joint suretyship of the others is part of the consideration for the contract of each(s). Not so where the sureties are bound severally only, and the suretyship of the one is no part of the contract of the others, except in cases where, and to the extent to which, the right of contribution (a right which will be presently explained {t)) is thereby lost to the others (««). It has been held that the death of a co-surety under a joint and {p) CouUhart v. Clementsan, 5 Q. B. (s) Ward v. National BanJc of New D. 42; JTamss V. JaMwK, L. R. 8 Oil. Zealand, 8 App. Cas. (P. C.) 755, at 8G6 ; Sradbury v. Morgan, 31 L. J. pp. 764, 765, 766 ; Bomer v. Cox, 4 Ex. 462 ; 1 H. & C. 249. Beav. 379 { Nicholson y. Eeeill, i Ad. (q) Note [ec), p. 688, post. & E. 675. {r) Llotjd's V. Harper, 16 Ch. D. 290 {<) See post, pp. 691 et aeq. (guaranty for a person on his admis- («) Ward v. National Bank of New sion as an underwriting member of Zealand, supra. See De Colyar on Lloyd's) ; Calvert v. Gordon, 3 M. & Guarantees, 2nd ed., p. 368. B. 124. 688 MERCANTILE CONTKACTS. Suretj-, how several oontinuinff guaranty does not by itself release the others discharged. « tj from liatOity for future advances (y). If a guaranty has been altered in a material particular while in the creditor's hands, without the consent of the guarantor, it becomes void (z) . Generally speaking, too, any matter which would operate in favour of the principal as an answer to, or in reduction of, the debt, e.g., a set off, &o., may be taken advantage of by the surety («). The surety will be discharged pro tanto if the creditor loses or parts with any security to which the former would have been entitled (6), and he is entitled to credit for sums received by the creditor under the bankruptcy of the debtor (c). It has been decided that a continuing guaranty for advances is countermandable by parol {cc). Section IY. — Surety, how indemnified. Surety, how As soon as the surety's obligation to pay is become absolute, iudenmified. . , . . ... he has a right to apply to be indemnified by his principal («^. But this he cannot do till he is under actual liability (e). After he has paid the debt of his principal, or any part of it, (y) Beckett v. Addyman, 9 Q. B. D. 1883, Ord.XIX.r. 3. Compare ^ow- 783 (C. A.). See Bradbury v. Morgan, year v. Pawson, 6 Q. B. D. 640. 31 L. J., Ex. 462 ; 1 H. & C. 249 ; (b) JFulfy. Jay, L. E. 7 Q. B. 756; Sarrisa v. Fawcett, L. E. 15 Eq. 311 ; Strange v. Fooks, 4 Griff. 408 ; Tayhr 8 Ch. 866. But qusere, if the creditor v. Bank of New South Wales, 11 App. had notice oi the death ; see the last Cas. 596, 602. case and Oford v. Davies, uhi inf. («) See FlUs v. Fmmanuel, 1 Ex. D. (z) Andrews v. Lawrence, 19 C. B. 167. K. S. 768 ; Davidson v. Cooper, 13 M. (cc) Brooklebank v. MoorCi Starkie on ScW. 34:3; The Bank of ffindustan, iic. Evidence, 3rd ed. vol. ii. p. 510, V. Smith, 36 L. J. C. P. 241. The two ii. (m) ; Oford v. Danes, 12 C. B. N. S. last cases related to instruments under 748. See Burgess v. Fve, L. E. 13 seal. In the former, Denman, 0. J., Eq. 450 ; Goss v. Lord Nugent, 5 B. & said thedoctrine of Figot's Case, 11 Co. Ad. 58. Eep. 27 «, extended to unsealed instru- {d) Nisbet v. Smith, 2 Bro. C. C. meuts ; but there has been a disposition 679 ; Lee v. Book, Mos. 318 ; Bechertaise to narrow the effect of that decision : v. Lewis, L. E. 7 C. P. 372 ; Duncan, Aldous V. Cornwall, L. E. 3 Q. B. 673. Fox % Co. v. North and South Wales {a) Murphy v. Glass, L. E. 2 P. C. Bank, 6 App. Cas. 1. 408 ; Bechervaise v. Lewis, L. E. 7 (e) See Cock v. Raeie, 6 Ves. 283. C. P. 372 ; Eules of Supreme Court, GUARANTIES. 589 he may obtain reimbursement (/), and may sue toties quoties he Surety, how i> ■ / \ TT T indemnified. is compelled to make a payment on account of it (g). He also has a right, which formerly was a right in equity only, to have any fund, which was charged with the principal debt, applied for his indemnification (/;), and to have all the securities taken by the creditor preserved for him (i). This right extends to securities unknown to the surety and to those acquired after the contract of suretyship was entered into (k). The Mercantile Law Amendment Act (/) expressly provides that — " Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding, at law or in equity, in order to obtain from the principal debtor, or any co-surety, co- con- tractor, or co-debtor, as the case may be, indemnification for the ad- (/) Warrington v. Furbor, 8 East, re Weatzinthua, 6B. & Ad. 817; Gedye 242. And this he may do, notwith- v. Mation, 25 Bear. 310 (surety who standing he has executed a, composi- had paid off mortgage debt entitled tion deed between the principal and to a charge on the estate). So a Set- his creditors, including the debt, but off due to the principal, Murphy v. containing a reservation of remedies Glass, L. E. 2 C. P. 408 ; Bechervaise against sureties, under which he has v. Lewis, L. K. 7 C. P. 372 ; Sobson \. been afterwards compelled to pay the Bass, L. E. 6 Ch. 792. debt: Jr«i7r«%v. Cofe, 16 M. AW. 128. (i) Mayhew v. CricleU, 2 Swanst. As to the right to recover interest, see 185. Ex parte Bishop, In re Fox, 15 Ch. D. (k) Fledge v. Buss, Johns. '663; 400 ; Petre v. Buncombe, 20 L. J. Q. B. Duncan, Fox S; Co. v. N. |- S. Wales 242. As to his right to be reimbursed Bank, 6 App. Cas. 1 ; Forbes v. Jack- the costs of an action, see Beech v. son, 19 Ch. D. 615. Jones, 6 C. B. 696 ; Le Blanche y. (l) 19 & 20 Vict. c. 97, s. S. This Wilson, 21 W. E. 109 ; and Sammond alters the law as laid down in Copis v. T. Bussey, 20 Q. B. D. 79. Middleton, T. & E. 224 ; Bobinson v. (y) Savies v. Eumphreys, 6 M. & W. Wilson, 2 Madd. 434. As to the oon- 153. struction of the section, seo In re [h) See Wright v. Morley, 11 Ves. Cociraw, L. E. 5 Eq. 209; In re Suasell, 12 ; Glossop V. Harrison, Coop. 61 ; 29 Ch. D. 254. Ex parte Siishforth, 10 Ves. 409 ; In 590 MERCANTILE CONTRACTS. Surety, lio-w vances made and loss sustained by the person who shall have so paid '__ such debt or performed such duty, and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him : Provided always, that no co- surety, co-contractor, or co-debtor, shall be entitled to recover from any other oo-surety, co-contractor, or co-debtor, by the means afore- said, more than the just proportion to which, as between those parties themselves, such last-mentioned person shall be justly liable." It appears that, eyen if the surety were under a disability which prevented him from obtaining, in his own person, the benefit of securities which had been set apart for the creditor, equity would have restrained the creditor from proceeding against the surety till he had resorted to those securities (m)- And where the principal has assigned his effects to a trustee for his creditors, a creditor who has a guaranty may be forced to apply in discharge thereof a rateable part of any payment he may receive from the trustee («). This obligation does not always exist. In cases where the amount of the guaranty is less than the amount of the principal's indebtedness, the Court, in a review, in J?ffis v. Emmanuel [o),oi the authorities, showed that the question depends on whether the intention was to guarantee the whole debt or to guarantee a part only. Primd facie a guaranty for a floating balance is merely for a proportionate part of the debt ; but whether the guaranty is for the whole debt or a part only is a question of construction for the Court (p). In some respects the surety may stand in a better position than the creditor. If, for instance, the creditor of a firm were to obtain judgment against one partner he could not, according to Kendall v. Samilton (q), sue another partner. This rule; it would appear, does not take away the rights of a surety for one partner as against another partner (r). (ot) Wright V. JfTutt, 3 Bro. C. C. Gee v. Tack, 33 L. J. Q. B. 49. 326 ; 1 H. Bl. 136 ; Cottiti v. JSlane, 2 (o) 1 Ex. D. 157. Anst. 544 ; Wright v. Sampson, 6 Ves. {p) Ibid. 714. ((?) 4 App. Caa. 604. (») Bardwell v. Zydall, 7 Bing. 489 ; ()•) Badeley v. Consolidated Saul:, 34 and see Saikes v. Todd, 8 Ad. & E. Ch. D. 536. 846 ; Hobson v. Bass, L. R. 6 Ch. 792 ; GUARANTIES. 591 As the surety has a riffht to reimbursement from his principal Sittety, how //; toto, so he has from his co-sureties for the same debt or duty («) pi'o tanfo, whether they are so under the same or separate instruments (t). This latter right is called the right to confribiifwii, and was recognised both in law and equity {u), with this distinction, that at law a surety was, in every case, entitled to contribution from his co-sureties, in proportion to their number, without regard to the insolvency of any one of them, which equity, on the contrary, regarded. Thus, if A., B., and 0. were co-sureties, A., having paid the debt, was entitled to recover, at luxe, a third only from B., though C. might have become insolvent (v) ; whereas, in eqiiiiij, he was entitled to one half {x). But, both in law and equity, if he had been reimbursed in part, the contribution must be calculated by the residue {y) . This distinction is now obsolete ; the Judicature Act, 1873 (36 & 37 Vict. c. 66), ss. 24 and 25 (11), having enacted that in case of a conflict or variance between the rules of law and equity, the latter shall prevail. It is said that, where one surety becomes so at the instance of another, the latter cannot call on him for contribution (2). We have seen that the surety's right to reiinhursemoit from his principal accrues toties quoties he is compelled to make a payment. With regard to his right to contribution, it is dif- ferent ; for until one has paid more than his proportion, either (») Cowell V. Edwards, 2 B. & P. 268 ; modo solvendo tint litis oontestatse Bcering v. Wincheltea, Ibid. 270. tempore, partes petere. Jdeoque si (t) WTiiting v. Burle, L. B. 10 Eq. quis ex Jidejussoribus eo tempore sokendo 639 ; 6 Ch. 342. non sit, hoc cmteroa onerat:" Inst. ib. 3, («) 19 & 20 Vict. 0. 97, s. 5, in tit. 20. See Hunter's Koman Law, App. 2nd ed., p. 577. («) Cowell V. Edwards, 2 B. & P. (y) Kriight v. Eughes, 3 C. & P. 467 ; 268 ; Browne v. lee, 6 B. & C. 689 ; M. & M. 247 ; Roach v. Thompson, M. Batard v. Hawes, 2 E. & B. 287 ; Lowe & M. 487 ; Swain v. Wall, 1 Cha. Eep. V. Dixon, 16 Q. B. D. 455. 80. {x) Feter v. Sick, 1 Cha. Eep. 19 ; (a) Turner v. Davies, 2 Esp. 478 ; Sole V. Marrisan, 1 Ch. Ca. 246 ; De Colyar's Law of Guarantees, 2nd Layer v. Nelson, 1 Vem. 456. The ed. 313. See Thomas v. Cook, 8 B. & decree of Hadrian proceeded on this C. 728, which turned chiefly on the principle, " Ex epistola divi Hadriani Statute of Frauds, compellitur creditor a singulis, qui 592 MERCANTILE CONTEACTS. Surety, how of the whole debt or of the part which remains due from his '— principal, it is not clear that he ever will he entitled to demand anything from the other ; and, before that, he has no equity to receive a contribution, and consequently no right of action, which is founded on the equity to receive it. Thus, if the surety, more than six years before the action, have paid a portion of the debt, and the principal has paid the residue within six years, the Statute of Limitations will not run from the payment by the surety, but from the payment of the residue by the principal ; for, until the latter date, it does not appear that the surety has paid more than his share. The practical advantage of this rule is considerable, as it would tend to a multiplicity of suits, and to a great inconvenience, if each surety might sue the others for a rateable proportion of what he has paid the instant he had paid any part of the debt. But whenever it appears that one has paid more than his proportion of what the sureties can ever be called upon to pay, then, and not tin then, it is also clear that such part ought to be repaid by the others, and the action will lie for it («). As soon, too, as a surety has paid the original debt or performed the stipulated duty (6), he has a right to have any judgment, specialty, or security held by the original creditor transferred to him, and notwithstanding such payment or performance might otherwise be deemed at law to have satisfied it, to obtain through the medium of it a just proportion of his loss from any co-surety, co-contractor, or co-debtor, who is precluded from pleading the payment or performance as an answer. The right to contribution equally exists whether the sureties were engaged jointly or severally, in one instrument or in several instruments, and whether they knew of each other's engagements or not ; for, in all these cases aKke, a payment by one is a benefit to all (c). But any surety may, of course, by (a) Savies v. Himphreys, 6 M. & W. [c) Deering v. WineJidsea, 2 B. & P. at p. 169 ; Batard v. Satves, 2 E. & B. 270 ; Whiting v. BurJce, L. E. 6 Ch. 287. 342. See the judgmentia. Craythome (J) 19 & 20 Vict. 0. 97, s. 5, in Ap- v. Swinburne, 14 Ves. 160 ; and 19 k- pendix. 20 Viot. c. 27, s. S. GUARANTIES. 693 using words to that effect, so modify Ms contract that he will he ?'^®'y'.g°y liahle only on the default of previous sureties, who will then he entitled to no contrihution from him {d). Not only are sureties entitled to contrihution among each other, they are entitled to the benefit of securities which one of them has taken to indemnify himself; and it matters not that the others were ignorant when they entered into the contract of the existence of them (e). " Whatever," said Fnj, J., " goes to dirmnish the total amount of the burden must, in my judgment, be brought into hotchpot" (/). The indorser of a bill of exchange who has paid the holder is entitled to recover over against the acceptor, and the relation- ship between the indorser and acceptor is sometimes described as that of suretyship ; the acceptor is considered the principal and the indorsers as sureties, and the indorser who has paid will be entitled to any securities deposited with the holder by the acceptor (g). Section 'Y*!^— Representations in the Nature of Guaranties. This chapter would be hardly complete if we were to take no Eepresenta- notice of certain representations which have very much the same nature of effect as guaranties, and for some time materially interfered g"°''^a,ntieB. with the operation of the 4th section of the Statute of Frauds. In consequence of the case of Pasley v. Freeman (h) (where such an action was decided to be maintainable), it became the practice to bring actions in which parties were charged, not strictly as guarantees for others, in which case the Statute of Frauds would have applied and the guaranty must have been in writing, but as having made wilfully false representations as to the credit of others, whom the plaintiffs were thereby induced to (d) Craythome\. Swinburne, 14 Ves. (/) Steel v. Dixon, 17 Oh. D. at 160. p. 832. (e) Steel v. Dixon, 17 Ch. D. 825 ; {g) Duncan, Fox, i Co. v. N. and S. In re Arcedeckne, 24 Ch. D. 709 [Pear- Wales Bank, 6 App. Caa. 1. son, J.). (A) 3 T. E. 51. S. — VOL. I. Q U 594 MERCANTILE CONTRACTS. Bepreseuta- tions in the nature of. _. . guaranties. trust, and so committed a tortious act, for which they were liable to the party deceived in damages. Now these repre- sentations might have heen made the groimd of an action although not in writing ; for they did not amount to guaranties, hut were of the same description as the false representations spoken of hereafter in the chapter on Sales; and yet it very often happened, that the same evidence which would have proved a parol guaranty, would also prove such representation of solvency as has just been described. The 4th section of the Statute of Frauds being thus frequently evaded, it was, in order to remedy the mischief, enacted in stat. 9 Geo. 4, c. 14, com- monly called Lord Tenterden's Act, that "Sect. 6. No action shall be brought whereby to charge any person upon or by reason of any representation or assurance, made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon (j), unless such representation or assurance be made in writ- ing (k), signed by the party to be charged therewith." The effect of this section was elaborately discussed in the great case of Li/de v. Barnard {J), where the Court was equally divided. Lord Ahinger, C. B., and Gurney, B., holding that a representation of the solvency of a fund belonging to A., ia order that a third party might advance money on the security thereof, was a representation within .the meaning of this Act, ParJie, B., and Alderson, B., holding the reverse, unless, indeed, it should appear that the representation, though concerning the state of the fund, had partly reference to A.'s own personal solvency. This question was touched on in 8wann v. Phillips (m) , where the Court of Queen's Bench seems to have been in faybur of the opinion of Lord Abinger and Baron Gurney. Where the defendant has received the proceeds of goods obtained by his debtor from the plaintiff by means of a mis- representation by the defendant falling vdthin this statute. (i) Thus in the statute. [k] See Tatton v. Wade, 18 C. B. 371. [l) 1 M. & W. 101. (m) 8 Ad. & E. 457. GUARANTIES. 595 though an action may possihly lie to recover hack the money, Reprraenta- stiU, if the whole case rests on the misrepresentation, the statute nature of applies, and it must be shown to have been in writing (w). '. — The Act applies to a representation made by one partner concerning the credit of the firm (o). The signature of an agent of the person making the repre- sentation is not sufficient (p). (m) Swift V. Winierbotham, L. R. 8 (o) Devaux v. Steinkeller, 6 Bingr. Q. B. 244 ; nom. Sivift v. Jewslury, N. C. 84. 9 Q. B. 301 (Exoh. Ch.) ; Haslock y. [p) See Swift v. Jewihury, supra. Fergmson, 7 Ad. & E. 88. Q Q 2 596 MEIICANTILE CONTKACTS. CHAPTEE XII. CONTKACTS OF SALE. Section 1. Ability of Vendor to Sell. 2. Form and Requisites of Contract. 3. Duties of Vendor. 4. Duties of Vendee. 5. Effect of Illegality. Contracts of • Sale is used in two senses — (1) as an executory contract, and ^^ (2) as an executed contract of sale or a conveyance: (1) as a contract which does not pass the property, but gives a right of action against the seller ; and (2) as a contract which passes the property and gives a right ad rem. Used in the sense of a conveyance, it may he defined as a contract, by which the pro- perty in goods, wares, and merchandises is transferred from one person to another in consideration of a price paid or to be paid (a). Barter or Exchange is, correctly speaking, a transmutation of property from one man to another, for a consideration not given (a) 2 Bl. Com. 446. Ziord. Blackburn ship of the thing sold from the seller defines sale as "a mutual agreement to the buyer." See also Benjamin on between the owner of goods and Sale, 4th ed. pp. 1, 82; South Am- another, that the property in the goods traliem Insurance Co. v. Sandell, L. K. shall for some price or consideration 3 P. C. 101 ; Dixon v. Ijindon Small be transferred to the other at such a, Arms Co. , 1 App. Oas. 632 ; JEx parte time and in such a manner as is then Bright, 10 Ch. D. at p. 571 ; article agreed," Introduction to Blackburn in Law Quarterly, Vol. I. at p. 1, on on Sale, Ist ed., p. 3. In the Indian sect. 17 of the Statute of Frauds by Contract Act, s. 77, sale is defined as Mr. Justice Stephen and Sir Frederick " the exchange of property for a price. PoUock. It involves the transfer of the owner- CONTRACTS OF SALE. 597 in money, but in some other sort of commodity (6). The dis- Confeactsof tinction is for most purposes immaterial. Payment, if the parties so agree, need not be in money. A transfer of property means primd facie an entire disposition, as, in case of land, of the fee simple. Property is, however, used in a less extensive sense, and not necessarily as meaning the right to deal with an article to the full extent permitted by law. Only a part of the rights forming the idea of property may be transferred. Thus it may be said that the property in goods has passed to the purchaser though, in fact, the vendor retains the right in certain contingencies of selling, and though, in the event of his insolvency, the property in the goods will vest in the vendor's trustee in bankruptcy. Hence such expressions as "general property" and "special property" are in use (c). Whether the first or second is passed in a contract of sale is to be determined by the intention of the parties. Section I. — AbiUtij of Vendor to Sell. Where a man has in himself the property in goods, the general ^^^^^ ^n rule is, that he, and he only, may dispose of them by sale to whomsoever and however he pleases (rf). Provided that a judgment have not been obtained against him and a writ of execution, whereby the goods may be seized or attached, actually delivered to, and remains unsatisfied in the hands of, the sheriff, of which the buyer has notice (e) ; for then the goods are bound to answer the debt from the time of delivering the writ to the sheriff, as they formerly were from its teste (/). Even in that case, as the property remains in him, he {*) See 3 Salk. 157 ; Harrison v. 663 (U. S. S. C), a discussion of the Luhe, 14 M. & W. 139 ; and Slack- rights which a purchaser of goods bum on Sales, 2nd ed. p. 9. under a conditional sale can convey to (c) See Jenhjns v. Brown, 14 Q. B. a vendee. 496, where the "general property " is («) 29 Car. 2, c. 3 ; Mercantile Law said to have passed to the plaintiff, Amendment Act, 19 & 20 Vict. c. 97, while a " special property " passed to s. 1, in Appendix. See Bohaon v. the defendants. Thellmon, L. E. 2 Q. B. 642. (rf) See remarks of Lord Cairns in {/) See Woodland v. Fuller, 11 Ad. v. Lindsay, 3 App. Cas. p. 463 ; & E. 859. and ia Sarkness v. Russell, 11 Davis, 598 MERCANTILE CONTRACTS. ■^'biiityoi may dispose of them, subject to tlie sherifE's right to seize by virtue of the execution. And a valid sale might formerly be made of them in market overt, and may now (/) be made for a valuable consideration, and before seizure, to any bond fide purchaser who has not notice of any tcrit against the vendor's goods remaining unexecuted in the hands of the sherifif, even after the delivery of the writ to him {g). Where a man lias not in hitnself the property of goods, but only the possession, as if he be a thief or finder (A), he nevertheless may make a valid sale, so that the buyer will be seomre of his purchase ; provided that such sale be made in market overt during the usual market hours. This market overt, in the country, is only held on special days provided for particular places by charter or prescription. But in the City of London every day, except Sunday, is market day. The market place, or spot of ground set apart by custom for the sale of particular goods, is, also, in the country, the only market overt; but in London every shop in which goods are exposed publicly and openly to sale is market overt, but for such things only as the owner professes to trade in [i). There are some cases in which even a sale in market overt will not secure the purchaser ; as if the goods were the property of the king, or if the buyer knew they were not the seller's, or was guilty of any other fraud in the transaction. Nor do the privileges of the market overt embrace sales made in a covert place within its limits, as in a back room or warehouse, or in a shop whose windows are closed up (/ ) ; sales between sun setting (/) 19 & 20 Vict. c. 97, ». 1 ; De Pass, 11 Ad. k E. 326, wMoli see, Williams v. Smith, 2 H. & N. 443 ; on the question, what is a shop, -within Gladstone v. Fadwick, L. R. 6 Ex. 203. the custom ; Crane v. The London Dock (ff) Per Lord Sardwieke, Zowthal v. Co., 5 B. & S. 313. As to the liahility Tonkins, Barnard, at p. 42; S. C. 2 of a salesman in market overt who sells Eq, Cai Abr. 381 ; /Samuel v. Duke, for a thief, see Delaney v. Wallis, 14 3 M. & W. 622. L. R. It. 31 ; and as to market overt (A) HollinsY.Fowler,'L.'R.TH..'L.'IbT . in the country, Tudor's Cases in Mer- [i) Case of Market Overt, 5 Eep. 83b ; cantile Law, 3rd ed. p. 277. X'Evesque de Worcester's Case, Moore, {j) 2 Inst. 713 ; Case of Market 360 ; iS. C. Poph. 84 ; Corayns' Dig. Overt and VEvesque de Worcester's Case, "Market" E., 2 Bl. Com. 449 ; Wil- supra; 2EoU. Ab.tit. "MarketOvert," kinson v. King, 2 Camp. 335 ; Zyons v. 60, p. 122 ; Wilkinson v. King, 2 Camp. CONTRACTS OF SALE. 699 and sun rising {k) ; cases in which the treaty for sale was begun Ability of out of market overt or by sample [I) ; sales of goods not usually sold in that particular market (m), the bulk not being in the market. Neither does the rale respecting saks in market overt extend to gifts (re) or pawning (o). Notwithstanding any inter- vening sales, if the original vendor, who sold without having the property, come again into possession of the goods, the original owner's right to them wiU revive {p). Apparently the statute, while protecting an innocent pur- chaser, does not protect an innocent vendor; he may be liable to the true owner {q). In general, amh in market overt will secure the purchaser, though the goods pxirchased have been stolen ; yet stat. 24 & 26 Yict. c. 96, s. 100 (r), enacts that— "If any person guilty of any such felony or misdemeanor as is mentioned in this Act («), in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for such offence by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his represen- tative ; and in every case in this section aforesaid, the Court before whom any person shall be tried for any such felony or misdemeanor shall have poiver to award, from time to time, writs of restitution for the said property, or to order the restitution thereof in a summary manner." The property, therefore, in the chattel upon conviction be- comes revested in the owner, who may bring an action for its 335 (a wharf not n, market overt in (p) 2 Bl. Com. 450. London). {}) Ganly v. Ledwidge, Ir. R. 10 (k) 2 Inst. 714. C. L. 33, followed in Dehnet/v. Wallis, {I) 2 Inst. 713 ; Crane v. Loniion 14 L. E. Ir. 31. Dock Co., supra; Sill v. Smith, 4 ()•) The previous statute, 21 Hen. 8, , Taunt, at p. 632. c. 11, only extended to felonies. See (»i) Marnery. Battles, 17 L. T. N. S. Parher v. Fatrich, 5 T. R. 175. 147 (Aldridge's not market overt for (s) There is an exception in the carriages). section in the case of the prosecution (m) 2 Inst. 713. for a misdemeanor of any trustee, (o) Sartop V. Soare, 2 Str. 1187; 1 banker, merchant, attorney, factor, Wills. 8 ; 3 Atk. 44 ; Packer v. Gillies, broker, or other agent intrusted with 2 Camp. 336 ; Crane v. London Dock the possession of goods or documents Co., supra. of title to goods. 600 MERCANTILE CONTRACTS. Ability of recovery against any person who detains it, notwithstanding no '■ writ of restitution or order under the statute has heen made, as the remedy thus afforded is cumulatiTO {f). The statute apphes to eases where goods have been obtained by false pretences, even where the property has passed. G. was induced by false pre- tences to sell goods to K. and H. who were prosecuted and con- victed. Afterwards the goods were sold in market overt to B., who had no notice of the fraud. K. and H. were, subsequently convicted of obtaining goods by false pretences. The House of Lords decided that the property in the goods revested in G., the seller, upon conviction of K. (m). The statute does not affect a person who purchased the goods in market overt after the felony, and disposed of them again before the conviction (»). And the section provides that : — "If it shall appear, before any award or order made, that any valuable security shall have been hond fide paid or discharged by some person or body corporate liable to the payment thereof, or, being a negotiable instrument, shall have been bond fide taken or received by'transfer or delivery for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanor, been stolen, taken, obtained, extorted, embezzled, converted or disposed of, in such case the Court shall not award or order the restitution of such secu- rity." There are some very peculiar provisions with respect to the sale of horses in market overt enacted by stat. 2 & 3 Phil. & M. 0. 7, and 31 Eliz. c. 12. These enactments require that the sellers of horses at fairs, &c., shall be known to the toU-keeper or some other credible person, and a note of the sales and the prices {t) Scattergoody. Sylvester, 15 Q. B. B. D. 109. 506. A person whose goods have («) Bentley v. Vilmont, 12 App. Cas. heen stolen and sold, not in market 471. overt, may recover them hy action ip) Sorwood v. Smith, 2 T. E.. 760 ; from an innocent vendee, though ho Bentleyv. Vilmont, 12 App. Cas. 471, has taken no steps to prosecute the overruling Moyce v. Ncwington, 4 Q. thief : White v. Spettigue, 13 M. & W. B. D. 32. See Queen v. Justices of the 603 ; Ex parte Ball, 10 Ch. D. 667 ; Central Criminal Court, L". E. 17 Q. B. Midland Ins. Co. v. Smith, 6 Q. B. D. D. 698; 18 Q. B. D. 314 (0. A.), as 561. And see Chowne v. Baylis, 31 to restitution of the proceeds of the Beav. 351 ; Walker v, Mattheivs, 8 Q. goods. CONTRACTS OF SALE. 601 entered in tlie toll-keeper's book, and a note ffiven to the buyer. Ability of ^ ' ° / vendor to sell. Stat. 31 Eliz. 0. 12, gives the owner of a stolen horse a right to redeem it at any time within six months on paying the price bond fide given {x). There are some cases in which a valid sale may be made by virtue of a power conferred by agreement or by law on the vendor not being the owner of the goods sold. Thus, a sheriff after seizure {y) of the goods of the execution debtor may sell according to the exigency of the writ of execution : and if that writ be afterwards set aside, the vendee does not seem liable to return the goods, provided he has acted bond fide (z). But the vendee under a distress warrant, issued upon a conviction, and invalid upon the face of it, has been thought not to be similarly protected («). An agent or a person in possession of certain documents generally used as symbols of property is, in many cases, able to make a valid sale of the goods of another by the provisions of the Factors Act, which are set out at length and commented upon in a preceding chapter (i). There is an apparent exception in the case of contracts of sale induced by fraud. When the vendor intends to part with the property and possession, such contracts are voidable, not void. If, before the contract is avoided, the purchaser sells the goods, a second purchaser for value without notice of the fraud will acquire a good title as against the original owner (c), unless, as we have seen, the first purchaser be convicted under 24 & 25 Vict. 0. 96 {d). (a:) Tudor' s Cases in Mercantile Law, court by the high bailiff, see 9 & 10 3rd ed. 284. Vict. o. 95, ss. 94, 106. (y) Manning's Case, infra ; Hx parte [a) Lock v. Sellwood, 1 Q. B. 736. Hall, In re Townsend, 14 Ch. D. 132. (i) Ante, Bk. 1, ch. 5, s. 4, pp. 145 By Kules of- Supreme Court, 1883, et seq. 0. L. 1. 2, in an action the Court (c) Cundy v. Lindsay, 3 App. Cas. may order perishable goods to be sold. 459, at p. 464; White v . Garden, 10 See Bartholomew V. Freeman, 3 C. P. D. C. B. 919, and see as to cases in which 316 ; The Hercules, 11 P. D. 10. the contract is void. Pease v. Gloahec, [z) Manning's Case, 8 Co. 96 b ; Doe L. K. 1 P. C. 219 ; Sabcockv. Laivson, V. Thorn, 1 M. & S. 425 ; and the cases 5 Q. B. D. 284. cited in Lock v. Sellwood, infra. As to (rf) Bentley v. Vilmont, ante, p. 600. a sale upon an execution in the county 602 MERCANTILE CONTRACTS. Ability of Negotiable instruments are also an exception to the general vendor to sell. , ,, , i- ■■ , , , ■, , . , rule, that a vand sale cannot be made, except m market overi, of property, to which the vendor has no right ; the nature of these, and their transferability, has already been discussed in Book II., Chap. lY., to which the reader is referred. Property in goods may bf/ estoppel be acquired as against the true owners from persons who are not the owners, that is to say, the actual owners may act so as to lead to the belief that others are the true owners. In virtue of this principle, if an undis- charged bankrupt is allowed by the trustee to trade and to get credit, the new creditors will be entitled to be paid out of the assets in priority to the old creditors (e). Por similar reasons, under the Bankruptcy Act, 1883, property which is in the reputed ownership of the bankrupt in the circumstances stated in sect. 44, passes to the trustee. Again, persons holding certain securities are entitled to sell. Thus a pawnee, though not possessing the property in the article pledged or pawned, may, unlike a person having a mere lien, on default by the pledgor or pawnor, or after the lapse of a reasonable time, sell the goods deposited with him (/), becoming a trustee for the pledger or pawner in respect of the surplus, if any, of the price after deducting the amount advanced, &c. The sale of pledges by pawnbrokers is now regulated by . the Pawnbrokers Act, 1872 (g) . By many statutes persons are empowered to seU goods of which they are not the owners ; e.g., high bailiffs of County Courts under execution in those Courts (by 51 & 52 Yict. c. 43, s. 154) ; trustees in bankruptcy (by 46 & 47 Yict. c. 52, s. 66 (1) ) ; liquidators of joint stock companies (by 25 & 26 Yict. c. 89, s. 95, par. 3) ; innkeepers by the Innkeepers Act, 1878 (41 & 42 Yict. c. 38). (e) Engelbacky. Mxon,!!. E. 10 C. to the pawnee's right to do so, i^)-a«/t?/» !"• 645. V. Neate, 13 M. & W. 481. Aa to the (/) Martin v. Beed, 11 C. B. N. S. right of the pawnee to re-pledge, sec 730 ; Johnson v. Stear, 330 ; Figot v. Donald v. Suckling, 1 Q. B. 604 ; Lang- Cubley, lb. 701 ; In re Morritf, 18 Q. B. ton t. Waite, L. E. 6 Eq. 166; Salli- D. at pp. 232, 235. A pawner retains day v. Solgate, L. E. 3 Ex. 299. his property, Langton v. Waite, L. E. (y) 36 & 36 Viot. o. 93, s. 19. 6 Eq. 165 ; and the right to sell, subject CONTRACTS OF SALE. 603 A recovery in trespass or trover in respect of personal chattels, Ability of vendor to Rell. followed by satisfaction, operates against the plaintiff, as if there had been a sale to the defendant, for solutio pretii emptionis loco habetur ; otherwise, if not followed by satisfaction, or, it is said, if the damages are not estimated on the footing of the full value (h). Seci'ion II. — Form and Mequisites of a Contract of Sale. A sale of goods must either be by deed or parol. A sale by Form and ,,.,, , , ,. 1J.1. requisites of u deed is not, at present, very usual, except m eases where tne eoutract of thing sold is of some importance, as where the vendor wishes to ^^^- convey his entire property to the vendee, or where the sheriff sells under an execution. "When such a deed, which is denomi- nated a hill of sale, is executed, the property in the goods con- veyed by it. passes out of the vendor into the vendee, by its delivery (»). A sale of goods must either be by parol or deed. A parol sale of goods might, according to the common law, have been in every instance effected either by (1) an agreement to be completed in present), coupled with tender, part payment, or delivery of a part of the goods by way of earnest, or (2) by an agreement to be completed infuturo (k). " If one sell me a horse, or any other thing, for money or any other valuable consideration, and the same thing is to he delivered {h) See the authorities collected in reasoning that the property in the the learned notes to Solmes v. Wilson, goods passes to the defendant. See 10 A. & E. 603 ; judgment of Tindal, Merles Motels Co. v. Jonas, 56 L. J. Q. C.J.,mCooper\. Shepherd, ZCB.atp. B. 278 (0. A.) ; 18Q,. B. D.459. 272; note of Serjeant Manning to 5a)-- (t) Noy's Max. c. 42; Com. Dig. nett -v. Brandon, 6 M. & G. at p. 640 ; "Biens," D. 3; Carr v. Burdiss, 1 JFilles, J., in JBrinsmead v. Harrison, C. M. & R. 782 ; Brighton Rail. Co. v. L. E. 6 C. P. at p. 589 ; Ex parte Fairclough, 2 M. & Gr. 674 ; Gale v. Drake, S Ch. D. 866. In detinue Burnell, 7 Q. B. 850. the property in the goods is in the (A) Com. Dig. Agreement, B. 3, and plaintiff, and the judgment is that he the other authorities cited by Solroyd, do recover them ; but if he obtains the J., in Tarling v. Baxter, 6 B. & C. at value of the goods in execution, instead p. 362. See Bunmore v. Taylor, Peake, of the goods, it wotdd seem on the same 41, and the notes there. 604 MERCANTILE CONTRACTS. Form and to me at a day certain, and by our agreement a day is set for the contract of * payment of the money ; or all or part of the money is paid in hand; sale. ' or I give earnest money (albeit it be but a penny) to the seller ; or I take the thing bought by agreement into my possession, where no money is paid, earnest given, or day set for the payment ; in all these cases there is a good bargain and sale of the thing to alter the property" (/). The presumption was that the price was to be paid concur- rently with the delivery of the chattels. Hence, if A. agreed to pay so much for goods, and B., the owner, agreed to take it, and no more passed, but the parties had separated, this agreement would have become void and unavailable (m), such separation being equivalent to a mutual consent to rescind it. But if B. had tendered the goods, or A. the price (m), or B. had received any part of the price, though but a penny, or A. any, even the very smallest, portion of the goods (o), both would have been, bound to their bargain ; though B. would in no case have had a right to the remainder of the price until he was himself ready to deKver the goods to A., and A. no right to the possession of the goods till he was ready to pay the whole of the price to B. (p). The bargain and sale might be on credit, expressly pro- vided for, or inferred from usage, or the circumstances of the case. After a payment or tender of the entire price, the property of the goods became vested in the vendee, so that he might, if the vendor had refused to deliver them, have maintained trover, and would have had to bear the loss had he of his own will permitted them to remain in the vendor's hands, and they had there been accidentally destroyed (q). Whether the (l) Sheppard's Touchstone, ch. 10, Johnson, 1 East, 203. There is one p. 224. case in which it -was laid down hy (m) Lntw. 252; Dyer, fol. 30, pi. 5ay?«y, J., that a vendor who had sold 203; 14 Hen. 8, c. 22; 2 Bl. Com. 447. goods on ready money terms, and (n) 2 Bl. Com. 447 ; Sheppard's whose servant iy mistake delivered Touchstone, 225. them without receiving the money, (o) 2B1. Com. 448; Noy'sMax. c. 42. might, after a demand and refusal, See Sinde v. Whitehoase, 7 East, 568 ; hring trover : Bishop v. Shillito, 2 B. Sheppard's Touchstone, 224. & Aid. 329, n. See Brandt v. Bowlby, (p) Hob. 41 ; 2 Bl. Com. 448 ; Peters 2 B. & Ad. 932. V. Opie, 2 Saund. 352 *, in nods. See (q) Sheppard's Touchstone, 225 ; 2 Bach V. Ou-en, 5 T. R. 409 ; Eawson v. Bl. Com. 448. See Tarling v. Baxter, CONTKACTS OF SALE, 605 effect of part payment or earnest be to bind the bargain and ^orm and alter the property, or merely to prove the contract, has been contract of much discussed (r). It is submitted that the effect of payment — ! of earnest is to prove the contract, but that the property passes independently of this by the mere agreement of the parties (s). It is convenient to divide sales of goods into the following classes : — (1) Of goods as to which nothing is required by the contract to be done by the seller before delivery in accordance with the contract ; (2) Of goods as to which the seller is bound under the contract to do something, in order to make them properly deliverable, or to determine their price ; (3) Of goods which must be separated from the mass or bulk before delivery ; (4) Of goods not yet made or manufactured ; (5) Of goods which are to form part of other goods or chattels. In all these cases the general rule is, that the intention of the parties determines When the property passes ; acts which would be held to amount to a transfer of the property will not have that effect if the intention of the parties to the contrary be apparent from the contract; and the rules which follow do not, therefore, hold good when an intention at variance with them can be deduced from the words or acts of the parties. The parties may make, expressly or by implication, any term or condition precedent to passing the property, so that it will not pass even if the goods be delivered. Thus, in the class of cases of which Shepherd v. Harrison (t) is an example, where a bm of lading accompanies a bill of exchange sent to the vendors, the acceptance of the latter is a condition precedent to passing the property, which remain^ in the seller though the 6 B. & C. 360 ; Sinde v. Whitehome, 409 ; B. N. P. 50. 7 East, 568. As to an antecedent («) Benjamin on Sale (4th ed.), 317. loss, see Strickland v. Turner, 7 Exch. {/) L. E. 4 Q. B. 196, 493 ; 6 H. L. 208. 116; Sew v. Fayne, 53 L. T. 932; (r) See Noy's Max. 0. 42 ; Sheppard's Swain v. Shepherd, 1 M. & B. 223. Touch. 224 ; Bach v. Owm, 5 T. E. 606 MERCANTILE CONTRACTS. Form and goods are in the purchaser's hands. So, in hiring agreements requisites of a . o o contract of as to furniture, loj which the hirer agrees to pay for the — '- furniture in instalments, the property does not pass -to the hirer imtil all the instalments are paid (m). But in the ahsence of any term, express or implied, in the contract, the rules here enumerated apply. (1) The rule as to Class (1) is thus stated by Lord Slack- burn (») : — "A contract for a valuable consideration, by which it is agreed tliat the property in a specific ascertained article shall. plass from one to another, ig effectual, according to the law of England, to change the property. It may be . that the party who , has sold the article is entitled to retain possession tiU the price is pai3, if that was by the contract to precede delivery, but still the property is chianged." The same judge thus lucidly explains and illustrates this rule (w) : — " By the English law when there was what civilians would call emptio perfecta, and what English lawyers call a bargain and sale — a contract for good and valuable consideration to pass the property in particular chattels — as soon as that was ascertained the property did pass, and the purchaser, although he might not be entitled to delivery, for there might be a vendor's lien or something else to prevent delivery, was entitled nevertheless to the property in the goods, to the/Ms in re as well as to the jus ad rem. That made a very considerable practical difference between the law of England and the law of Scotland; for the law of Scotland was like the civil law upon which it was founded, the maxim of the civil law being tradilionibus et usucapionibus non nudis pactis transferuntur rerum dominia {x). When there was not an actual delivery, — however com- plete the contract might be, although it was emptio perfecta to the fullest extent, amounting to all that in the gjreat chapter of the Digest upon that subject has been considered to be emptio perfecta, and although every farthing of the price was paid — ^yet the dominium rei, theyMs in re, did not pass to the purchaser. Although he had the (u) Hx parte Crawcour, 9 Ch. D.419; (w) In M'Sain v. Wallace % Co., 6 Craweour v. Salter, 18 Oh. D. 30 ; App. Gas. at p. 608. Elphick T. Barnes, 2 C. P. D. 321. (a.) Bell's Inquiries into the Contract (v) Seath v. Moore, 11 App. Cas. at of Sale, p. 12. See the Mercantile p. 370. As to the explanation of the Law Amendment (Scotland) Act (19 & rule, see judgment of Bayley, J., in 20 Vict. c. 60), s. 1. Dixon V. Yates, 5 B. & Ad. at p. 340. CONTRACTS OF SASAi. 607 JUS ad rem, and could, as long as tlie vendor was sui juris, compel Form and the vendor to deliver to him the goods, he had not fhejus in re." contract of sale. The right of the buyer to the goods, as against third persons, may, in certain circumstances, he affected hy the seller heing allowed to remain in possession. If the seller hecomes bankrupt, the property in the goods may, under sect. 44 of the Bankruptcy Act, 1883 (y), pass to his trustee as goods in his possession, order, or disposition, in his trade or business, by the consent of the true owner, under such circumstances that he is the reputed owner thereof. The buyer may also be deprived of the goods by the operation of the Bills of Sale Acts ; the transaction, if evidenced (a) by a bill of sale (b), whether absolute or by way of mortgage, must be registered under the BiUs of Sale Act, 1878, otherwise the biU of sale ■will be void as against trustees in bank- ruptcy, or sheriff's officers and execution creditors taking the goods in execution (e). The bill of sale, if given by Kay of security for the payment of money, must not only be registered but be in the form prescribed by the BiUs of Sale Act, 1882, otherwise it will be void {d). If the sale be fraudulent, for the purpose of defeating creditors, it will be void within stat. 13 Eliz. c. 5. The fact of the seller remaining in possession is evidence of fraud (e) . A second sale by a purchaser in market overt would, as has already been stated, confer a good title upon a second purchaser (/). (2) As regards Class (2), Lord Blackburn says : — "It is essential that the article should be specific and ascertained in a manner binding on both parties, for unless that be so, it cannot be construed as a contract to pass property in that article. And in general, if there are things remaining to be done by the seller to the article before it is in a state in which it is to be finally delivered to the (y) 46 & 47 Viot. c. 52. (c) Bills of Sale Act, 1878 (41 & 42 [a) See N. Central Waggon Co. v. Viot. c. 31), a. 8. Manchester, Sheffield, and Lincolnshire [d) Bills of Sale Act, 1882 (45 & 46 Sail. Co., 13 App. Cas. 554 ; and Vict. o. 43), ss. 3, 9. Swire v. Cookson, 9 App. Cas. 653. (e) See the notes to Twynne's Case, {h) See the definition of bill of sale Smith's L. Cas. 9th ed. p. 1, and in sect. 4 of the Bills of Sale Act, 1878 Swire v. Cookson, 9 App. Cas. 633. (41 & 42 Viot. c. 31), in the Appendix. (/) Ante, p. 600. See also the Tactors Act in Appendix, post. 608 MERCANTILE CONTRACTS. sale. Form amd purchaser, the contract will not be construed to be one to pass the requisites of a .„ , , . , ,) / \ contract of property till those things are done {£}. — If nothing remains to be done to the goods {gg) on the part of the seller as between him and the buyer before the goods purchased are to be delivered, or the price to be ascertained, the property in the goods immediately passes to the buyer, and that in the price to the seller, unless the parties have agreed to the contrary {h). But if any act remains to be done on the part of the seller, or seller and purchaser jointly, then the property does not pass until that act has been done. Where there was a bargain for the sale of hay, which was not to be paid for till a future period, and not to be cut down until paid for, it was held, nevertheless, that the property passed to the vendee, and that, the hay being, before the day of pay- ment, accidentally destroyed, the loss must fall upon him (/). It might have been thought immaterial whether these acts remained to be done by the seller or the buyer ; iu either case, it might have been argued that an essential element of the contract, the consent of both parties as to the subject-matter of the con- tract or its price, was wanting until both were agreed as to this. The authorities, however, seem to show that when the goods have to be weighed or measured by the buyer solely for his satisfaction, or where the seller has left the matter to be determined by the buyer, the property passes {k). Classes (3) and (4) may for this purpose be considered together. Any act by the buyer in pursuance of a term of the contract, showing an intention to appropriate certain specific goods to the fulfilment of the contract, and adopted by the seller, constitutes an appropriation, and converts an executory contract into a bargain and sale. {g)XiOTdiBlaehburn,va.SeathY. Moore, (Jc) Gilmour v. Supple, 11 Moore, 11 App. Caa. at p. 370; Anderson v. P. C. 661; Zagwy-v. Fumell, 2 Camp. Morice, L. E. 10 C. P. at p. 619; 240; TurUy\. Bates, 2 H. & C. 200; Simmons v. Swift, 6 B. & C. at p. 862, Martineau v. Kitching, L. R. 7 Q. B. per Bayley, J. 436. But see Simmons v. Swift, 5 B. (gg) Anderson v. Morice, 1 App. Gas. & 0. 857, at p. 863, where the con- 713. ourrence of the parties in the act of (A) Turley v. Bates, 2 H. & C. 200. weighing was necessary. (i) Tarling v. Baxter, 6 B. & 0. 360. CONTKACrs ()!'' SA],K. 609 " The selection of the goods by the one party, and the adoption Fo™ and of that act by the other, converts that which before was a mere contract of agreement to sell into an actual sale, and the property thereby ^b. passes "{I). In other words, when the parties have not agreed in the original contract as to specific goods, they may agree afterwards that certain goods should be appropriated to that purpose. Thus, election and assent have the same effect as if specific goods had been ascertained and agreed upon in the original contract (>«). Two questiona have here arisen : (1) When has the seller finally made his election, so as to render it irrevocable? and (2) What will constitute adoption by the buyer ? The principle of the common law as to election is thus stated by Coke and by Lord Blackburn : — " When election is given to several persons, there the first elec- tion made by any of the parties shall stand. In case election be given of two several things, always he who is the first agent, and who ought to do the first act, shall have the election " («). "When once he [the party who is to do the first act] has per- formed the act, the choice has been made, and the election irre- vocably determined ; till then, he may change his mind as to what the choice shall be, for the agreement gives him tiU that time to make his choice" (o). Mere preparations to perform the contract, by appropriating a particular article to it, are not tantamount to election. Thus, in Atkinson v. Bell{p), the defendant had ordered two machines to be supplied by S., according to a pattern to be approved by K. S. completed two machines, altered them to suit the suggestions of K., packed them in boxes, and wrote to the defendant asking by what conveyance they should be sent. S. having become (I) Per Solroyd, J., in Jtohde v. (p) 8 B. & C. 277. This case is Thwaitea, 6 B. & C. at p. 393, cited in cited in Blackburn on Sale and other Blackbnm on Sale, 2nd ed., p. 129, books as an example of the doctrine of with approval. election. But it may be urged that it (»») Toung v. Mathews, L. E. 2 C. really was a case in which there was P. 127. no adoption of the appropriation. "If («) Beyuiarcfs Case, 2 Coke's Reports, Bell had assented to the appropriation 37 a. of these two machines, the case would (o) Blackburn on Sale, 2nd ed., have been different." Blackburn on p. 130; Comyus' Digest, Election, Sale, 2nd ed., p. 132. C. 2. S. — vol.. I. 11 R 610 MEKCANTIJLE COXTllACTS. Form and bankrupt, the Court of King's Bencli decided that an action for requisites of a , , nn • contract of goods bargained and sold would not lie. To the same effect is !_ : , BorrowwMn v. Free {q). In that case the plaintiffs first tendered a cargo of maize, which the defendants refused to accept, and which an arbitrator, to whom the matter was referred, decided was an invalid tender. The plaintiffs thereupon, withiu the time limited by the contract, tendered another cargo, which the defendants refused to accept. It was held by the Court of Appeal that the plaintiffs were free to make a second tender, and that the defendants were bound to accept it. There must be both appropriation by the seller, and adoption by the buyer. The latter may, after the contract is concluded, do something which will be an approbation of the seller's appro- priation ; as in Sparhes v. Marshall ir) , where the buyer showed his assent to the appropriation of a particular cargo of oats by insuring them. But the buyer may in the contract agree to or authorize a particular mode of appropriation. " The assent of the vendee," says Willes, J., in Campbell v. Mersey Books (s), " may be given prior to the appropriation by the vendor ; it may be either express or implied ; and it may be given by an agent of the party — by the warehouseman or wharfinger, for instance." For instance, the vendor placing goods in sacks or bottles supphed by the purchaser amounts to an appropriation of the goods It). The following are cases in which it was held that there was no appropriation: marking particular goods without making any charge iu the warehouse-keeper's books, or holding the (y) 4 Q. B. D. 500. On the other Brett, J., says, in Borrowmmf^. Free, hand, see Gath v. Lees, 3 H. & C. 558, p. 605, " Gath t. Lees was not decided where the facts were as follows : the upon the doctrine of election, but upon defendant agreed to buy from the seller the ground that the defendants, having a quantity of cotton, to be delivered at acted upon the notice of the plaintiff, seller's option inAugust or September, had altered their position for the 1864. The seEer gave notice to the worse." defendant that the cotton was ready (»•) 2 Bing. N. 0. 761. for delivery in August. Held that, (s) 14 C. B. N. S. 412. See also having exercised his option, thedefen- jirie, J,, in Aldridge v. Johnson, 7 E. dant was bound to deliver in August, & B. 885 ; and compare Jenner v. and that non-delivery in that month Smith L. R. 4 C. P. 270. was a good equitable defence to an (<) Aldridge v. Johnson, 7 E. & B. action for non-delivery. See Johnson 8S6 ; Langion v. Biggins, 4 H. & N. v. L. f J. Rail. Co., 3 C. P. D. 499. 402. CONTRACTS OF SALE. 611 seller liable for the rent (u) ; sending the goods ordered packed ^°™ ?;°^ 1*6(211181X68 OX ft with others not ordered (x). oontraot of The word " appropriation " is not used in the older cases ; its —-1 — — equivalent is " election " (y), a term in many respects apter. In Wait V. Baker (s), Parke, B., points out the different signi- fications of the word " appropriation " : "It may mean a selec- tion on the part of the vendor where he has the right to choose the article which he has to supply in performance of his con- tract. Or the word may mean that both parties have agreed that a certain article shall he delivered in pursuance of the contract. ' Appropriation ' may also he used in another sense .... where both parties agree upon the specific article in which the property is to pass, and nothing remains to be done in order to pass it." Delivery, as we have seen (a), is not required at common law to pass the property. It is, however, one of the commonest and clearest ways in which appropriation is signified, and, after delivery to the vendee, the property in goods will pass to him, even though something remains to be done in respect of them by the vendor (/;). Delivery to the piu-chaser or his agent — for example, to a carrier- specially designated by him or to the ordinary carrier — in general passes the property (c). But the delivery may be on a condition, the breach of which re-vests the property in the vendor, and entitles him to recover back the property (d). Delivery of goods on board the purchaser's own vessel will generally be conclusive of an appropriation sufficient to pass the property, at all events if the goods are made deliver- able to the purchaser or his order (e). Such, however, will not he the effect if, as in Turner v. Trustees of Liverpool Docks (/), the bill of lading makes the goods deliverable to the order of («) Jmner v. Smith, L. E. 4 C. P. (c) Dmlop v. Lambert, 6 CI. & F. 270. at p. 620 ; Ex parte Pearson, L. R. 3 {x) Levy t. Green, 1 E. & E. 969. Ch. 443. (y) myward's Case, 2 Co. Rep. 36. {d) Bishop v. ShilUto, 2 B. & Aid. (2) 2 Exoh. at p. 8. See also the 329, n. ; Brandt v. Bowlby, 2 B. & Ad. remarks of Lord Seliorne in Inylis v. 932. Stock, 10 App. Cas. at p. 267. {«) Scholsmans v. Lane. ^ Y. Mail. Co., (a) Ante, p. 604. L. R. 2 Ch. 337. («) Benjamin on Sale, 4th ed. 290. { f) 6 Ex. .543. R K 2 G12 MERCANTILK CONTRACTS. Form and ^}^q seller. In short, tlie question is one of the intention of the requisites of a _ '■ oontraet of shipper — whether he put them on board in pursuance of his con- '■ tract, or whether he desired to remain owner of the goods and to control them {g) — a point to be ascertained from the form of the bill of lading, terms of the invoice, and other facts. The most common case of goods being delivered without the property passing, is that of goods delivered on " sale or return." There is no sale until approval or after the lapse of a reasonable time without return of the goods ; and in the latter case, apparently, it matters not that they have not been returned through the wrongful acts of a servant, e.g., theft by a servant {h). (5) At common law there could not be a sale, as distinguished from a contract of sale, of chattels not in existence. But a chattel not complete, or its .materials («), may be from time to time appropriated, while in the course of mating, by agree- ment, or by special circumstances showing an intention to that effect, or by acceptance or part payment after its completion. Wood V. Bell (k) is a case in point. A shipbuilder had agreed to build a steamship and engines for the plaintiff ; payment to be made by instalments. Some of them had been paid; the ship and engines had been constructed: but neither they nor the plates had been fixed. The Exchequer Chamber held that in these circumstances the property in the ship, but not in the engines or plates,_had passed. In Tripp v. Armitage (/), A. agreed to build a house, make window frames, and fix them ; and they were approved by a surveyor. It was held that the iff) Van Casteel v. Booker, 2 Ex. 691. Ex parte Wingjield, 10 Ch. D. at Compare Coxey. Harden, 4 East, 211; p. 593; Ray v. Barker, 4 Ex. D. at Brandt v. Bowlby, 2 B. & Ad. 932; p. 282; see D. 19. 6, 17,8. 1. See as Moakes v. NicoUon, 19 C. B. N. S. to furniture hiring agreements, Ex 290 ; Shepherd v. Harrison, L. E. 5 parte Crawcour, 9 Ch. D. 419, and H. L. 116, with Craven v. Ryder, 6 Craweowry. Salter, 18 Ch. D. 30. Taunt. 433 ; Van Casteel v. Booker, (») Lunn v. Thornton, 1 C. B. 379 ; supra ; Keyrv. Cotesworth, 7 Ex. 595 ; Brown v. Bateman, L. R. 2 C. P. 272. Gabarron v. Kreeft, L. E. 10 Ex. 274 ; (k) 6 E. & B. 366. Some of the ex- Oggr. Shuter, 1 C. P. D. 47; Mira- pressionsinthe judgments of JeaiA, J., titay. Imperial Ottoman Bank, Z'E,-x..T). and Lawrence, J., in Mucklow ^®*- Mangles, 1 Taunt. 318, must be ta.ken (A) Moss V. Sweet, 16 Q. B. 495 ; to be overruled. Elphiek V. Barnes, 6 0. P. D. at p. 326; (I) 4 M. & W. 687. CONTRACTS OF SALE. 613 property in them did not pass before fixing; the surveyor's Form and approval of them did not amount to an appropriation. contract of There is no consensus of opinion as to the test to be applied — '. in such oases. Lord Blackburn, in Seath v. Moore {m), thus states it: — "It is competent to parties to agree for valuable consideration that a specific article shall be sold and become the property of the purchaser as soon as it has attained a certain stage ; though if it is part of the bargain that more work shall be done on the article after it has reached that stage, it affords a strong primd facie presumption against its being the intention of the parties that the property should then pass. It is, I think, a question of the con- struction of the contract in each case at what stage the property shall pass ; and a question of fact whether that stage has been reached." The explanation given in Atkinson v. Bell [n) is that the pay- ments constituted a purchase of particular portions of the work. It would seem that in the above cases the common law courts have been led by independent reasoning to the same conclusion at which equity judges had arrived in regard to equitable assign- ments. All that is essential to the sale is an agreement as to specific articles : and if it be clear from the terms of the con- tract or the acts of the parties that there has been an appropria- tion with adoption, or assent, the property will be held to have passed (o). Though the property in goods has passed to the purchaser, he has, in the absence of any provision to the contrary, no right to possession until payment. Though the loss will fall on the purchaser in the event of the article being destroyed, he will not be entitled to delivery until he pays the price {p). Where, however, the day of payment is deferred — in other words, where (m) 11 App. Cas. 350, at p. 370. Ch. D. at p. 351, as to the assignment (m) 8 B. & C. 277 ; so in jEr parte of non-existing chattels, and Coombe y. Lambton, L. R. 10 Ch. 405. Carter, 36 Ch. D. 348. (o) See also Atigh-Egyptiait Co. v. {p) Bloxam v. Sanders, 4 B. & C. Sennie, L R. 10 C. P. 271 ; HolroydY. 941 ; Bmeiing v. Turner, L. R. 7 Q. B. Marshall, 10 H. L. 191 ; the remarks 310. of Jessel, M. R., in Collyer v. Isaac, 19 614 MERCANTILE COJiTUACTS. Form and the ffoods are sold on credit— the purchaser is entitled to present requisites of a , contract of delivery (q). : ! The unpaid vendor's rights are usually termed a "lien," v?hioh in strictness means a personal right continuing only so long as the possessor retains possession. It is on all hands agreed that the "tmpaid vendor's rights" are greater than a mere right of •detention, but to what extent is somewhat uncertain. In Martin- dale V. Smith (r), the plaintiff, who had purchased oat stacks on credit, did not pay at the appointed time. He afterwards tendered payment, which was refused by the defendant, who sold the oats, on which the defendant brought trover against him, and was held entitled to recover. On the other hand, in Milgate v. Kehhle (s), where the purchaser was in default in paying a portion of the price, and the vendor re-sold the goods, it was held that trover would not lie, as the purchaser by his default had not the right to possession of the goods. In Page v. Cow- cisgee Edulgee (t), where the Privy Oounbil had the point under consideration, the effect of the decisions up to that time (a.d. 1866) was thus stated (u) : — " Martindale v. Smith («) and other cases have determined that, where there is an agreement to purchase property, to he paid for at a future time, and the money is not paid at the day, the property remaining in the possession of the vendor, he has no right to sell it, and if he does, the purchaser may maintain trover against him. There may be cases where the vendor might sell without rendering himself Hahle to an action, as where goods sold are left in the pos- session of the vendor, and the purchaser will not remove them and pay the price, after receiving express notice from the vendor that, if he fail so to do, the goods wiU. be re-sold. But the authorities are uniform on this point, that if before actual dehvery the vendor re-seUs the property while the purchaser is in default, the re-sale will not authorise the purchaser to consider the contract rescinded, so as to entitle him to recover back any deposit of the price, or to resist paying any balance of it which may be stni due." {(?) Spartali v. Benecke, 10 C. B. 212 ; (<) L. R. 1 P. C. 127. DonaM \. Suckling, L. R. 1 QrB. 685. {«) lb., at p. 145. [r] 1 Q. B. 389. («)) Supra. (») 3 M. & G. 100. CONTRACTS OF SAT,E. 615 Thougli goods have been sold on credit, which has not I'ormand . . . . ., requisites of a expired, the sellers right to retain possession revives m the contract of event of the insolvency of the purchaser (x). Though the ! -. nature of the seller's rights under these circumstances is indefinite, it is clear that bankruptcy will not of itself rescind the contract and entitle him to re-sell ; there must he some- thing equivalent to a repudiation of the contract (y). Even in the case of bankruptcy, the buyer's trustee in bankruptcy may elect to fulfil the contract on paying the price in cash, provided he does so within a reasonable time. Failing this, the vendor may, without making any tender of the goods to the trustee, treat the contract as broken (2). As soon as the property has passed to the vendee, it remains, as was before stated, at his risk ; a doctrine strongly exemplified by a case in which Irish butters were shipped for a person in London ; " payment, bill at two months from the date of land- ing." The butter having been lost by shipwreck, it was held that the object of the above stipulation was merely to fix the time of payment, not to make the landing of the goods a condi- tion precedent ; and that the vendor, having waited a reasonable time, might recover the price from the vendee in an action for goods bargained and sold (a). Such was the common law respecting sales of personal pro- perty. Such is still the law respecting sales of goods nnder the raluc of 10/., with this addition, that, as provided by the 4th section of the Statute of Frauds, no action that is not to be per- formed within the space of one year from the making thereof, can be maintained on any agreement for the sale of them, unless the agreement be in writing, and signed by the paxty to be (x) Bloxam v. Sanders, 4 B. & C. ruptcy Act, 1883, s. 55, in Appendix. 941 ; Sloxam v. Morley, ib. 951. [a) Alexandm- v. Gardner, 1 Bing. (j^) See Blackburn on Sale, 2nd ed. N. C. 671. See Fragano v. Long, 4 B. pp, 446 et seq.; Boorman v. Nash, 9 B. & C. 219 ; Richardson v. Sunn, 2 Q. B. & C. 145 ; Ex parte Chalmers, L. R. 8 218 ; and Anderson t. Morice, ante, Ch. at p. 291 ; Benjamin on Sale, 4tli p. 403. As to oases in which vendee ed. 755. assumes risk before the property has (2) Ex parte Stapleton, 10 Ch. D. 586 passed, &eeMartineauv.Kitching,'lj.^. (C. A.); Morgan y. Bain, L. E. 10 7 Q. B. 436; and Iiiglia y. Stock, 10 C. P. at pp. 25, 26 ; Ex parte Stapleton, App. Cas. 263. supra, per Jenwl, M. R. See Bank- 616 MERCANTILE CONTRACTS. Porm and charged therewith, or some other person thereunto by him law- contract of fully authorised (b). On this provision it has heen decided, that — ^ an agreement is valid, though not in writing, if it possibly could be performed within the year (c). Thus, a contract to deliver goods at the return of a particular ship, would not be within the meaning of this section, for the ship might possibly return within a year ; and though it should, in point of fact, remain abroad for five years, that would make no difference. This section of the Statute of Frauds does not require an agreement to be in writing, one part of which is to be performed within a year and the other not {d) . With respect to contracts for the sale of goods of the value of 101. and upwards, they, besides being within the section of the Statute of Frauds just commented upon, are also governed by the 17th section (16th in the Revised Statutes), which enacts, that — "No contract for the sale of any goods, wares or merchandises, for the price (e) of 1 0^. or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or iu part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to he charged by such contract, or their agents thereunto lawfully authorised." N^o contract for tlie sale of any goods, wares or merchandises. — A distinction was formerly taken between cases in which the thing contracted for was in existence and capable of deb'very at the time of the contract, and cases in which it was necessary that something should be done, in order to render it capable of delivery. The former cases were universally allowed to be [b) 29 Car. 2, u. 3, a. i. For history 808. It has been held {Reuss v. Fkka- of the statute, see 3 Swans. 664, App. ; ley, L. E. 1 Ex. 342) that a proposal also 9th Report of the Commission on signed by the person to be bound and Historical Manuscripts, Part II. p. 48. accepted by word of mouth, is a suffi- («) McGregor v. McGregor, 57 L. J. cient agreement to satisfy this section. Q. B. (C. A.) 691 ; Anon., Salk. 280 ; See further on this section, Chapter Peter v. Compton, Skinn. 353 ; 1 Sm. L. on Guaranties, ante, p. 678. Cas. 9th ed. p. 369, and notes there. (e) Harman v. Meeve, 18 0. B. 687, {d) Donelkn v. Read, 3 B. & Ad. where JervU, 0. J., points out that 899; SoiKh V. Strawbvidge, 2 C. B. " price " must be taken to mean value. CONTRACTS Ol' SALE. 617 within the Act, but the decisions on the question whether the ^orm and requisites of a latter were so were not very consistent (/). However, by Lord contract of Tenterden's Act, 9 Geo. 4, c. 14, s. 7 (g), it is enacted that ^— the 17th section of the Statute of Frauds shall extend to all contracts for the sale of goods to the value of 10/. sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made (h), procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. Are things attached to the soil, e.g., timber, or an interest in land, within the 4th section, " goods, wares, and merchan- dizes " within the 17th section, as explained by 9 Geo. 4, c. 14, 8. 7 ? When there is a contract to buy and sell the growing produce of land, afterwards to be cut down by the purchaser, and the property is to pass before severance, the contract is not for the sale of goods, but for an interest in land. But if the (/) See Bondeau v. Wyatt, 2 H. Bl. 63 ; Oarbutt v. Watson, 6 B. & Aid. 613 ; Smith v. Surman, 9 B. & 0. 561 ; Cooper V. Elaton, 7 T. R. 14 ; Alexander V. Comber, 1 H. Bl. 20; Clayton v. Andrews, 4 Burr. 2101 ; Groves v. Buck, 3 M. & S. 178; Watts v. Friend, 10 B. & C. 446 ; Finner v. Arnold, 2 C. M. & R. 613 ; Atkinson v. Bell, 8 B. & 0. 277 ; Grafton v. Armitage, 2 C. B. 336 ; Clay v. Yates, 1 H. & N. 73. {jg) See Elliott v. Fybus, 10 Bing. €12, for remarks of Tindal, C. J., on this statute ; and Harman t. Beeve, 18 C. B. 687. (A) See Lee v. Griffin, 1 B. & S. 272 ; Clay v. Yates, 1 H. & N. 73. In the previous editions the following para- graph appeared in the text : — " We will detain the reader to con- sider, one by one, the parts of this important section, which, as has been remarked by Bosanquet, J., in Lay- tlioarp V. Bryant (2 Bing. N. 0. 747), is stronger than the 4 th, for the 4th section does not avoid contracts not signed as the statute directs, but only enacts that no action shall be brought upon them. The 17th sec- tion is stronger, and avoids contracts not made as the statute prescribes." In Zeroux v. Brown, 12 C. B. 801 ; 22 L. J. C. P. 1, cited in Jones v. Victoria Graving Book, 1 Q. B. D. at p. 323, it was held that a verbal agree- ment made abroad and good there, cannot be enforced in this country. But Lord Blaekbum, in Maddison v. Alderson, 8 App. Gas. 467, at p. 488, in the House of Lords, says : " I think it is now finally settled that the true construction of the Statute of Frauds, both the 4th and the 17th sections, is not to render the contracts within them void, Btill less illegal, but is to render the kind of evidence required indis- pensable when it is sought to enforce the contract." See, also, Britain v. Bossiter, 11 Q. B. D. 123, at p. 127, per Brett, L. J. ; and Williams v. Wheeler, 8 C. B. N. S. 299, at p. 316, per Willes, J. 618 MERCAxrn.E contracts. Form and contract is that the produce shall be forthwith severed from the requisites of a contract of land, as in Marshall v. Green {i), where the contract was to sell — ! growing timber, " the trees to be got away as soon as possible," the Court decided that this was a contract for the sale of goods, on the principle stated by Williams, J., in the notes to Buppa v. Mayo{k), that "with respect to emblements or fructus indus- tr tales (i.e., the com and other growths of the earth which are produced not spontaneously, but by labour and industry), a contract for the sale of them is not a contract for the sale of any interest in land, but merely for the sale of goods." The rules to be applied are thus summarized from the note to Buppa T. Mayo il) by Brett, J., in Marshall v. Green {in) : — (1) " Where the subject-matter of the contract is growing in the land at the time of the sale, then, if by the contract the thing sold is to be delivered at once by the seller, the case is not within the section" {i.e., s. 4). The following rules, it is said, express the effect of Smith v. Surman («) ; — (2) " "Where, although the thing may have to remain in the ground some time, it is to be delivered by the seller jQnally, and the pur- chaser is to have nothing to do with it until it is severed, that case is not within the section " {i.e., s. 4). (3) "Then there comes the class of cases where the purchaser is to take away the thing himself. In such a case, when the things are fructus industriales (that is, emblements or corn and other growth of the earth, annually produced not spontaneously, but by labour), then, although they are still to derive from the land after the sale in order to become fit for delivery, nevertheless it is merely a sale of goods, and not within the section " {i.e., s. 4). These express the effect of Sainsbury v. Matthews (o) : — (4) "If they (the things produced) are not fructus industriales, then the question seems to be whether it can be gathered from the (t) 1 C. P. D. 35. Compare Zavery (m) 1 C. P. D. at p. 42. V. Pursell, 39 Ch. D. at p. 615. (n) 9 B. & C. 561. (k) Wms. Saund. 396. (o) 4 M. & W. 343. {l) Ibid. CONTRACTS OF SALE. 619 t contract that they are intended to remain in the land for the advan- Form and tage of the purchaser, and are to derive benefit from so remaining; contoalrt of * then part of the subject-matter of the contract is the interest in land, sale, and the case is within the section." (5) "But if the thing, not being fructus industriales, is to be delivered immediately, whether the seller is to deliver it or the buyer is to enter and tate it himself, then the buyer is to derive no benefit from the land, and consequently the contract is not for an interest in the land, but relates solely to the thing sold itself." It is open to doubt whether some of the cases could be sustained on appeal {p). A sale of standing timber to be cut at onoe is within the 17th, and not within the 4th section of the Statute of Frauds {q). A contract for the sale of tenants' fixtures is within neither of them (»"). A sale of stock is not within the 17th section («) ; a contract for shares in a canal navigation or similar public under- taking is not so {t) ; nor is a contract to procure goods and carry them(M). Sales by auction are («) ; though that was once doubted (y). When several articles, each of less value than 101, but collec- tively of greater, are sold, the statute will apply if there was one contract for all (a). Except the lui/er shall accept part of the goods so sold and actually/ receire the same. — In consequence of these words, there has, ever since the Act, been a great struggle to determine what is a part performance, a receipt, or an acceptance. Upon these points, the inclination of the Courts is, to give the words of the statute full effect, and not to allow, unnecessarily, constructive deliveries and acceptances. {p) See III re Mnslic, 30 Oh. D. 485. JSowll/i/ v. Sell, 3 C. B. 284; JFatson (q) Marshall v. (freen, 1 C. P. D. 35. v. Spratley, 10 Exoh. 222. See also (/•) Lee V. Gaakell, 1 Q. B. D. 700. Kniffht v. Barber, 16 M. & W. 66. (») Mumble v. Mitchell, 11 Ad. & E. {«) Corboldv. Caston, 1 Bing. 399. 206 ; Colt V. Nettervill, 2 P. Wms. 307 ; {«) Kenworthy v. Sehofield, 2 B. & PawU V. Gunn, 4 Bing. N. C. 445. 0. 945. {<) Latham v. Barber, 6 T. R. 67 ; (y) Simon v. Motives, 1 "W. Bl. 599. Duncuft V. Albrecht, 12 Sim. 189; {z) Baldeyodyso«, 2 M. & W. at Sale, 2nd ed., pp. 16, 17. In the p. 656 ; Bushel v. TTheeler, 16 Q. B. article already quoted, the following 442, n. CONTRACTS OF SALE. C2l V. Stone (1809) (c), a transfer of a horse by order of the vendee Form and from the vendor's sale-stahle into another of his estahlishments contract of was held sufficient. But in Carter v. Toussaint (1822) (rf), it was ^11' held that there was no receipt where a horse was to remain with the vendors for twenty days without any charge to the vendee, at the expiration of which time it was sent to grass by the direction of the vendee, and, at his desire, entered as the horse of one of the vendors. In Cadle v. Sworder (1861) (e), the Exchequer Chamber thought there was evidence of receipt where the plaintifPs, the vendors, appropriated to the vendees certain rum puncheons, and put them in their bond warehouse from which they could not be removed. (c) Where the goods after the contract pass into the possession of a third person. If he be the warehouseman of the vendee, a carrier named by him, or a common carrier, there is receipt; though a carrier is not an agent to accejyt (/). (d) Where the goods are at the time of the sale in the pos- session of an agent or bailee of the vendor, and remain after the sale in the possession of this agent or bailee, who agrees to become bailee of the vendee in place of the vendor, there is receipt as soon as the vendor, the vendee and the bailee agree together that the bailee shall cease to hold for the vendor, and shall hold for the vendee. In Farina v. Home {g) it was held that it was not sufficient, in an action for goods sold and delivered, to prove that the goods were sent to a ship agent of the plaintiff, that the agent warehoused them with a wharfinger, that the latter delivered to the agent a delivery warrant whereby the goods were made deliverable to him or his assigns, and that the agent indorsed it to the plaintiff. There might be accep- tance : there was no actual receipt. (e) Where the buyer holds the goods prior to sale. In this case receipt, or acceptance, may be evidenced by acts of the buyer inconsistent with his former possession {h). (c) 1 Taunt. 45?. Smith v. Hudson, 34 L. J. Q. B. 145. li) ID. &B,. 615. is) 16 M. & W. 119. See also (e) 6 H. & N. 828. See also Marvin Sentall t. Bum, 3 B. & C. 423. But V. Wallis, 6 E. & B. 726. see Godts v. Moae, 17 C. B. 229. (/) Bawes v. Pech, 8 T. R. 330 ; (A) Edan v. DudficU, 1 Q. B. 302. 622 MEKCANTILE CONTRACTS. Form and rp^ constitute acceptance, there must be, to use the words of requisites of a ■" ' contract of Bramwell, B., in Bowes v. Pontifex (i), " some act or conduct on sale. ... . . . 1 — the part of the huyer indicating an intention to retain the goods, or such as reasonably to lead the seller to suppose so." Often it may he inferred from acts of ownership by the vendee ; e. g., selling the goods, as in Morton v. Tibbett {k) ; giving a receipt for them, as in Kibble v. Gough (l) ; directing alterations to be made in them (m). Apparently, dealing with the documents of title to goods will constitute acceptance (w). The opinion that there cannot be an actual acceptance such as the statute requires so long as the buyer continued to have a right to object to the quantum or quality, has long been rejected. The " acceptance need not be an absolute acceptance," said Brett, M. E., in Page v. Morgan (o), " all that is necessary is an acceptance which could not have been made except upon admission that there was a contract, and that the goods were sent to fulfil that contract." "Having regard to the mischiefs at which the statute was aimed," said Boicen, L. J., in the same case, " it would appear a natural conclusion that the acceptance contemplated by the statute was such a dealing with the goods as amounts to a recognition of the contract" {p). Acceptance of a sample which is to be accounted part of the commodity is sufficient {q), though acceptance of one which is to be no part thereof is not so (r). Acceptance may precede receipt or delivery (s). Delivery to a carrier named. by the vendor, or even to a wharfinger or carrier selected by the vendee, will not generally amount to acceptance (^). But in (i) 3 F. & F. 739, at p. 743. acceptance from that which affords (k) 19 L. J. Q. B. 382 ; 15 Q. B. conclusiTe evidence of the contract 428. having been fulfilled." [Vj 38 L. T. N. S. 204. {q) Gardner v.' Grout, 2 C, B. N. S. [m] Beaumont v. Brengeri, 5 C. B. 340. 301. (»•) TaUer v. West, Holt, N. P. C. (») See Currie v. Anderson, 29 L. J. 178 ; Foster v. Frampton, 6 B. & C. Q. B. 87 ; 2 E. & E. 692. 107. (o) 15Q. B.D. 228,followingJ/brt(»8 («) Cusaek v. Sobinson, 1 B. & S. V. Tibbett, and Kibble v. Gough, supra. 299. (p) "Acceptance to let in parol evi- {t) Marty. Btish, E. B. & E. 494; dence of the contract," said Lord Meredith v. Meigh, 2 E. & B. 364; Campbell, C. J., in Morton v. Tibbett, Sunt v. Secht, 8 Ex. 814 ; Coats v. sixpra, ' ' appears to us to he a different Chaplin, 3 Q. B. 483. CONXllAtTS OF SALE. 623 the case of goods previously selected, such delivery might Form and r6(^U18lt6S Ol Si constitute acceptance ; as in Bushel v. Wheeler (m), where, there contract of being evidence that the purchaser treated the warehouse as his — '■ own, and delayed rejecting the goods after delivery there, the Court held that there was evidence of acceptance to go to a Where two classes of goods are jointly ordered, acceptance of one is an acceptance of both {x) . It is decided that one person in possession of another's goods may become the purchaser of them by parol, and may do subsequent acts without any writing between the parties which may amount to an acceptance, and the effect of such acts, necessarily to be proved by parol evidence, must be submitted to a jury {y). At anytime before acceptance and actual receipt the vendor may rescind the bargain (z). The effect of a receipt and acceptance being proved is to allow parol evidence to be given of the terms of the contract («). Or give something in earnest to bind the bargain, or in part payment. —Earnest is a gift or token, not necessarily money, given by the buyer to the seller to mark the final conclusive assent of both parties to the bargain. It is not a part of the price, but "something that binds the bargain," for there can be no part payment until after the bargain is bound (ft). If a purchaser of goods draw the edge of a shilling over the hand of the vendor, and return the money into his own pocket (which in the North of England is called striking a bargain), that will not be sufBcient (c). If one of the terms of a bargain is that the seller is to deduct (m) 16 Q. B. 442, n. Compare Bickard made to Baldey v. Farker, 2 B. & C. 37 ; T. Moore, 38 L. T. N. S. 841. Carter v. Toussaint, 5 B. & Aid. 855; [x) Elliott T. Thomas, 3 M. & W. Tempest v. Fitzgerald, 3 B. & Aid. 680 ; 170. But see Sodgson v. Le Bret, 1 Smith v. Surnam, 9 B. & C. 561. Camp. 233, -per lioid Fllmborough. (z) /Smith v. Sudson, 6 B. & S. 431. [y) Edan v. Dudjield, ante, p. 626. (a) See Tomkinson v. Staight, 2S; In former editions it was said, "It L. J. C. P. 85; 17 C. B. 697. has also been held that there can- (4) Benjamin on Sale, 4th ed., p. 172 not be such an acceptance and actual citing Bracton, 1, 2, u. 27. receipt of goods as long as the seller (e) Blenkinsop v. Clayton, 7 Taunt, retains his lien for the price upon the 597. projierty accepted ; " and reference is 624 MERCANTILE CONTRACTS. Form and from the price the amount of a debt previously due by biTn to requisites oi a ^ _ , . contract of the purchaser, it is no part payment within the statute, even — '■ though the seller afterwards furnish an account giving credit for the agreed amount (c^). But a subsequent agreement that the debt should be deducted from the price, or that the goods delivered should be taken in satisfaction of the debt, might be equivalent to part payment (e). Or that some note of memorandum in writing 6f tJie bargain he made. — The note or memorandum must be in existence at the date when the action was commenced (/). A mere offer in writing made by one side, and not assented to {g) by the other, is not enough to satisfy these words. Where A. wrote to B. that he would buy his mare for twenty guineas, if war- ranted sound and quiet in harness; to which B. writes that he will send her, and warrant her sound and quiet in double harness; this is no contract, the proposal of A. never having been completely accepted. " The parties," said Parke, B., "never have contracted in writing ad idem" (h). But if such assent is given verbally to a written proposal containing the terms of the agreement, the statute is satisfied («). If assent be expressed in the usual manner through the post, the bargain is complete at the time of posting, and it matters not that the letter is lost or miscarries (A). It is sufficient if the contract can be collected from several different dociunents, provided they be sufficiently connected in sense (l). This connection must {d) Walker v. Nmsey, 16 M. & W. (i) Reuas v. FicksUy, L. E. 1 Ex. 302. 342 ; Bailey v. Sweeting, 9 C. B. N. S. (e) Ibid., per Farlee, B. ; Maber v. 843. L. E.. 2 Ex. 153 ; S. v. St. (A) Dunhp v. Eiggins, 1 H. L. C. Michael's, 6 E. & B. at p. 819 ; Bx 381 ; Sousehold Fire Insurance Co. t. parte ChalUnor, 16 Ch. D. 260 ; Benja- Grant, 4 Ex. D. 216. min on Sales, 4tli ed. 174. {t) Fhillimore v. Barry, 1 Camp. (/) Lucas T. Dixon, 22 Q. B. D. 513 ; Jackson v. Lowe, 1 Bing. 9 ; 357. Saunderam v. Jackson, 2 B. & P. 238 ; (g) Feltliome v. Bindley, 11 C. B. Allen, v. Bennett, 3 Taunt. 169. See K. S. 869 ; Munday v. Asprey, 13 Ch. Cooper y. Smith, 15 East, 103 ; Richards D. 855. V. Forter, 6 B. & C. 437 {but quare) ; (h) Jordan v. Norton, 4 M. & W. Archer t. Baynes, 5 Exoh. 625 ; Buxton 155; accord. Hutchinson t. Bowker, v. JiMsi, L. R. 7 Ex. 1, 279; Catonv. 6 M. &W. 535. Caion, L. R. 2 H. L. 127; Bidgway CONTRACTS OF SALE. 625 appear from the documents themselves, and not be introduced ^°™ ?"^ „ *■ *• _ requisites or a loj parol evidence ; the Statute of Frauds does not modify the contract of principle of the common law as to this (m). But such evidence — '- — as is admissible to explain a latent ambiguity may be given to connect documents ; e.g., to show what are the instructions («) referred to in a certain document. The necessary memorandum may be collected from a letter repudiating liability, and it may be addressed to a third person. The word "bargain," used in this section, does not, it has been said, render so strict a statement of the transaction neces- sary as the word " agreement," used in the fourth section, of matters within that section (o). The note must express the names or descriptions of both the contracting parties as such, or their agents {p), though parol evidence will be admissible to explain words of description, e.g., who is " proprietor" (q). The memorandum must also show the price (r), if any specific V. Wharton, 6 H. L. Cas. 238 ; Buxton V. Bust, L. E. 7 Ex. 1, 279; Mshton V. IFhatmore, 8 Oh. D. 467. See ante, Chapter on Guaranties. (jm) Boydell v. Drummond, 11 East, 142; Peirce v. Corf, L. E. 9 Q. B. 210; Mliott r. Dean, 1 C. & E. 283. But see Studds v. Watson, 28 Ch. D. 306. (») Leather Cloth Co. v. Hieronimus, L. E. 10 Q. B. 140 ; Bailey v. Sweet- ing, 9 C. B. N. S. 843 ; Elliot v. Dean, 1 C. & E. 283. But see Studds v. Watson, 28 Oh. D. 306 ; Long v. Millar, L. E. i 0. P. D. 4S0 ; Wilkinson v. Evms, L. E. 1 0. P. 407 ; Buxton v. Rust, L.E. 7 Ex. 279; J?e«ssv. Fioksley, L. E. 1 Ex. 342. (o) Hgerton v. Mathews, 6 East, 307, per Lord EUmhorough, C. J. See Sari V. Bourdillon, 1 0. B. N. S. 188; Bailey v. Sweeting, 9 0. B. N. S. 843. In Mr. Oampbell's Treatise on The Sale of Goods and Commercial Agency the rule is thus stated : ' ' The note or memorandum must specify the time or manner of delivery, if an express term S. — VOL. 1. of the contract, or anything else which has been expressly made a term of the contract." He refers to Cooper v. Smith, 16 East, 103. If correct in regard to delivery, this observation would apply to all conditions not im- plied by law. But qutsre. (p) Warner v. Wilhngton, 3 Drew. 623 ; Williams v. Byrnes, 1 Moore, P. C. Ca. N. S. 164 ; Vmdenbergh v. Spooner, L. E. 1 Ex. 316; Newell y. Madford, L. E. 3 C. P. 52; Sak v. Lambert, L. E. 18 Eq. 1 ; Sossiter v. Miller, 3 App. Cas. 1124 ; Commins V. Scott, L. E. 20 Eq. 11. (j) Sale V. Lambert, supra ; Sossiter V. Miller, supra. (r) Mmorey. Eingscote, 5 B. & 0. 583 ; Kain v. Old, 2 B. & 0. 627 ; Champion V. Flummer, 1 B. & P. N. E. 252; Goodman v. Griffiths, 1 H. & N. 674. See Laythoarp v. Bryant, 2Bing. N. C. at p. 744, decided on the 4th section ; Acebal v. Levy, 10 Bing. at p. 383 ; Ash- croft V. Morrin, 4 M. & G. 450, where an order for goods, on moderate terms, was held sufficient. s s 026 MERCANTILE CONTRACTS. Form and price was agreed on ; if no price be named, the parties must-. requisites of a -^ ° contract of it seems, be imderstood to have agreed that such a sum shall — '. be paid as the article is reasonably worth (s). The contract, though it must be evidenced in writing, may be rescinded by parol ; an alteration, therefore, by parol of a contract, by substituting, for example, another day for the delivery of the goods, though that fresh contract, not being in writing, could not be enforced, may operate as a rescinding of the original {t)r But it would be a question for the jury whether it was not a mere indulgence, and whether the parties meant to rescind the contract absolutely, and that that which could not operate according to their intention should affect existing avail- able rights (m). And signed by the parties to be charged. — The signature may be by printing or stamping the name {x), or by a mark or initials, if they be intended as a signature {y). The signature need not be at the foot of the note or memorandum. It may be at the beginning or in the body of the writing, if it appears to have been intended as a recognition of the contract. Thus, in Schneider v. Norris (s), the appearance of the vendor's name printed in a bill of parcels was held a sufficient signature to bind him. In this case the defendant had written the plaintiff's name in the bill of parcels. Lord Ellenborough, C. J., there said : " If, indeed, this case had rested merely on the printed name, unxecog- (s) Hoadley v. M'Laine, 10 Bing. L. E. 10 C. P. 598. See Tyers v. 482; compare Goodman v. Griffiths, 1 Sosedale amd Ferry Sill Iron Co., L. E. H. & N. 574 ; Valpi/Y. Gilson, 4 C. B. 8 Ex. 308 ; 10 Ex. 196. 837. (a) Schneider v. Norris, 2 M. & S. (<) Gosa T. Lord Nugent, 6 B. & Ad 68 ; Stowell v. RoUnson, 3 Bing. N. C 928 ; Barvey v. Gralham, 5 Ad. & E, 61 ; Stead v. Dawier,'W Ad. & B. 57 Marshall t. lynn, 6 M. & W. 109 JPlemns y. Downing, 1 C. P. D. 220 OgU V. Fori Vane, L. E. 3 Q. B. 272 But see Moore y. Campbell, 10 Ex. 323 (m) Nobler. Ward, L. E. 1 Ex. 117 2 Ex. 135 ; Ogle v. Vane, L. E. 2 Q. B, 275 ; 3 Q. B. 272 ; Bichmany. Maynea. 286, per Lord Ellenborough, C. J., and Le Mane, J. iy) Ibid., per Lord Ullenborough, C. J. ; JBaker y. Dening, 8 Ad. & B. 94 ; Barrison v. Mvin, 3 Q. B. 117; Belshaw v. Zangley, 11 L. J. Ch. 17 (oases of marks) ; Chichester v. Cobb, 14 L. T. N. S. 433 (initials) ; and Caton y. Caton, L. E. 2 H. L. 127, at p. 143, per Lord Weatbury. (2) Supra. CONTKACTS OF SALE. 627 nized by and not trought home to the party as having heen printed ^°"^ .^""^ . roQ^iiisitcs 01 ft by him or by his authority, so that the printed name had been contiaot of unappropriated to the particular contract, it might have afforded '- some doubt whether it would not be intrenching upon the statute to have admitted it. But here there is a signing by the party to be charged -by words recognizing the printed name as much as if he had subscribed his mark to it, which is strictly the meaning of signing, and by that the party has incorporated and avowed the thing printed to be his. Pie has by his handwriting in effect said, ' I acknowledge what I have written to be for the purpose of exhibiting my recognition of the within con- tract '"(«). If the note commence withj "J, A. B., agree to sell" (6), or " Mr. A. B, agrees to sell" (c), that is a sufficient signature by A. B. ; though it is otherwise where a signature at the end of the instrument was manifestly intended in order to its completion, as where it concluded, " As witness our hands "(rf). And, as the statute only requires the signature of the parties to be charged, a memorandum signed by the vendor has been held sufficient to bind him, though it was not signed by the vendee ; against whom, therefore, the contract could not have been enforced (c). While a person who signs such a (a) SauncUrmn v. Jackson, 2 B. & P. Signed for Johnson, Johnson & Co. 238; Schneider v. Nbrris, 2 M. & S. {the plaintiffs), 286 ; mrrell v. Evans, 1 H. & C. 1 74 ; !>• Mohse. Tourret v. Cripps, 48 L. J. Ch. 567 ; In Tomret v. Cripps, 48 L. J. Ch. Bennett v. Brumjitt, L. R. 3 C. P. 28 ; S67, a letter containing termsof acon- Stcwart V. Eddowes, L. E. 9 C. P. 311. tract hetween A. B., the writer, and In Johnson v. Dodgson, 2 M. & W. 653, 0. B., -written on a memorandum paper the following note (all, except the sig- hearing a printed heading, ' ' Prom nature "D. Morse," written by the A. B.," was held sufficient to hind defendant in a sample-hook of his own] A. B. was held sufficient : (i) Knight v. CrocTcford, 1 Esp. 190, Leeds, 19M October, 1836. Egre, C. J. Sold John Dodgson {the defendant) {c) lobb v. Stanley, 5 Q. B. 674. 27 pockets Playsted, 1836, Sussex, at {d) Subert v. Treherne, 3 M. & Gr. 103s. 743 ; Caton v. Caton, supra. The hulk to answer the sample. {«) Allen v. Bennett, 3 Taunt. 169 ; 4 pockets Seline Beokley's at 95«. Rems v. Picksley, L. R. 1 Ex. 342 ; Samples and invoices to he sent per see Bowe v. Osborn, 1 Stark. 140 ; Rockingham Coach. aniaeeZaythoarp v. Bryant, 2 Bing. Payment in Bankers' at 2 mouths. N. 0. 735 ; Smith v. Male, 2 C. B. ss2 628 MERCANTILE CONTRACTS. Form and memorandum eannot escape liability, evidence is admissible to requisites of a -, • n j • t ii contract of show that a person not named m the memorandum is liable as, — '■ principal (/) . It has been said by Lord Eldon {g), that " where a party, or principal, or person to be bound, signs as, what he cannot be, a witness, he cannot be understood to sign otherwise than as prin- cipal : " in that case the signature was as follows : — " Witness, Evan Phillips, for Mr. Smith, agent for the seller." But, where the purchaser affixed his signature to an agree- ment for the sale of lands, and underneath was written Witness, Joseph Newman, in the usual place for a witness's signature, Joseph Ncimnan being the clerk of the auctioneer employed to sell the premises, it was urged that Newman must be taken to have signed as agent for the vendor, and it was attempted to show a ratification of his agency. But the Court were of opinion that he signed simply as a witness ; and Lord Denman, G. J., said, he thought Lord Eldon's remark open to much observation {h). In Eley v. Positive Assurance Co. («'), the Court of Exchequer decided that the signature of directors of a com- pany to articles of association, declaring that the plaintiff should be solicitor to the company, was not a signature within the statute, because it was affixed alio intuitu. This case was affirmed in the Court of Appeal, but on other grounds irrespec- tive of the Statute of Frauds. In Jones v. Victoria Dock Co. (k), the same contention was thus dealt with : " "We think," says Lush, J., "there is more ingenuity than force in this argument. The signature is matter of procedure only, and is required as evidence of the contract. It matters not that the memorandum was not made at the time, or for what purpose the signature was put, if only it was put to attest the document as that which contains the terms of the contract" (l). N. S. 67, decided on the 4th section ; (A) Gosbell v. Archer, 2 Ad. & E. Watts v. Ainsworth, 1 H. & C. 83. 600. See Suit v. Worrell, 12 Ad. & {/) Siggins v. Senior, 8 M. & W. E. 743. 834. (t) 1 Ex. D. 20, 88 (1875). ig) In Coles V. Trecothic/c, 9 Ves. at {k) 2 Q. B. D. 314, at p. 323 (1877). P- 251. (I) See Hussey v. Home-Payne, 4 CONTRACIS OF SALE. 629 Or their agents, thereunto lawfully authorised. — The authority ^oi™ ^^^ ,...' .. requisites of a need not be m ■writing (m) ; and a subsequent recognition by the contract of principal is suflScient evidence of its having been given (»). But — '. . it has been held that one of the contracting parties cannot be the agent of the other for this purpose (o). This decision seems to be somewhat regretted. What was the motive for signing the memorandum seems immaterial. Though it has been held that an auctioneer's signature of the defendant's name, by his authority, is insufficient to entitle the auctioneer to sue upon the contract in his own name, it is settled that a signature by the auctioneer's clerk is sufficient for that purpose {p). Though the auctioneer, suing in his own name on the con- tract of sale, cannot avail himself of his character of agent for the defendant, yet, in other cases, he is looked on at a public sale as the lawfully authorised agent of both parties {q), the seller communicating his authority by giving him directions to sell ; and the buyer, to whom the conditions of sale, pasted on the auctioneer's box, are sufficient notice of the terms thereof (r), by bidding aloud. And, if the auctioneer, or auctioneer's clerk («), write down the purchaser's name in the sale book opposite the lot for which he is the highest bidder, that is a sufficient signature within the statute, and binds the pur- chaser {t), who perhaps may, at any time before the entry, App. Cas. 311, at p. 323, per Lord («) Bird v. Boulter, supra. Where Selborne. this is done by the clerk, he does not, (»«) Jtucker v. Cammeyer, 1 Esp. 105 ; it would seem, act as a mere auto- Chapman v. Partridge, 5 Esp. 256. maton in the auctioneer's hand, but as (») Maclean v. Dunn, i Bing. 722 ; a distinct agent, authorised by the Kinnitz v. Surry, Paley, 171, n., 3rd parties to make entries. In that case ed. ; Soames v. Spencer, 1 D. & R. 32. the signature by the clerk takes place (o) Wright V. Dunnah, 2 Camp. contemporaneously with .the sale, when 203 ; Sharman v. Brandt, L. R. 6 it could not conveniently be performed Q. B. 720. See ante, Bk. I., Ch. 5, b. 1 {p) Bird V. Boulter, 4 B. & Ad. 443 (q) See Bird v. Boulter, ubi supra Sinde v. Whitehouse, 7 East, 558 by the auctioneer, who is otherwise engaged. Generally speaking, the clerk of an agent has no authority to sign for the principal. See Gosbell v. Burrell v. Evans, 31 L. J. Ex. 337; Archer, 2 Ad. & E. 500; Feirce v. Beer \. London and Paris Motel Co., 20 Corf, L. E. 9 Q. B. 210. Eq. 412, at p. 426. But alitor, where {<) Emmerson v. Seelis, 2 Taunt, the sale is after the auction : Meu-s v. 38 ; Minde v. Whitehouse, 7 East, 558 ; Carr, 1 H. & N. 484. Bird v. Boulter, 4 B. & Ad. 443 ; Shel- ()•) Mesnard v. Aldridge, 3 Esp. 271. ton v. Liviiis, 2 C. & J. 411. C30 MERCANTILE CONTKACTS. Torm and retract his authority, as he certainly may before the fall of the requisites of a v-r-.-(.i • t • it contract of hammer (m). But if the signature be m a book or on a mere !!;i: catalogue of the articles, neither connected with nor referring to the conditions of the sale, it ■will not he a memorandum of a sale on those conditions, unless it can he connected with them by some other written document («). Though primd facie the auctioneer is the agent of both parties, yet he is not so neces- sarily and ex vi termini. Thus, where P. bought goods at an auction, hating previously agreed with their owner that he was not to pay cash, but to set off a debt due to himself agaiast the price, he was held to have a right to do so, though the con- ditions of sale required payment in cash ; for the preYious agree- ment between himself and the seller rebutted the presumption of the auctioneer's authority to bind him to those conditions^ (y). A broker also is generally (z) , though not invariably, the agent of both parties within the section (a) . The usual and proper mode iu which he binds his principals inter se is by making an entry of the contract in his book, which he signs as their common agent, and he sends the bought and sold notes (which ought, according to the bond formerly required of brokers (6), to be copies of this entry) to them for their information, the bought note being sent to the buyer and the sold note to the seller (c). It has been held {d), and the better opinion (e) seems to be, that, in the absence of any custom to the contrary, the entry thus made in his book is the original contract, and the bought and sold notes are merely copies of it, though this doctrine was («) Fai/ne v. Cave, 3 T. R. 148 ; and FairUe v. Fmton, L. E. 5 Ex. 169. see Warloio \. Sarriaon, 1 E. & E. But in general the broker is such 295. agent -with a limited special authority [x) Farce y. Ccn-f, L. E. 9 Q. B. 210 ; only to sign a contract containing tte Fhillimore v. Barry, 1 Camp. 613. terms verbally agreed upon ; and if (y) Barllett v. Furiiell, i Ad. & E. he omit a material term in drawing it 792 ; and as to private sales, Mews v. up, a party who has not recognised or Carr, 1 H. & N. 484. adopted the contract as drawn up will (z) Thompson t. Gardiner, 1 0. P. D. not be bound : Pitts v. Beckett, 13 M. 777. & W. 743. (a) See ante. Book I., Ch. 4, pp. 118 (J) Blackburn on Sale, 2nd ed. 81. et seq.; Simon v. Motives, 1 W. Bl. (c) Sievewright v. Archibald, 17 Q. 599 ; Zuclcer v. Cammeyer, 1 Esp. 105 ; B. 103. Binde y. Whitehouse, 7 East, 658 ; (d) Heyman v. Neale, 2 Camp. 337. Durrell v. Ecans, 1 H. & C. 174; (c) S'mcHTighty.ArcMhaU,-a\a.sa-f. CONTRACTS OF SALE. 631 at one time thouffht to be overruled (/). Still the notes seem Form and ° _ ^ \ . requisites oi a to be the proper evidence of the bargain (gf), provided always, contract of that they correspond with each other (A). If there be no — bought and sold notes (i), or if they be not signed (k), or if those notes matraially differ from each other (/), the original signed entry must be resorted to, and will bind the parties. But if the notes correspond with each other, yet vary from the entry, it seems that, in the absence of any custom by which they are regarded as the contract (m), all the parties, by accepting and acquiescing in them, have ratified the bargain they express and adopted it in lieu of the original («). If there be no entry signed by the broker, it seems the bought and sold notes constitute the contract (o). It has been held that ^f they do not correspond, the intended contract will not be afieoted (p), and that if they be altered in any material (/) Thornton v. Mem, 1 M. & M. 43 ; Cumming v. Soduc/c, 1 Holt, 172 ; Goom V. ui^alo, 6 B. & C. 117. See Short T. Spaceman, 2 B. & Ad. 962 ; Kiitves V. Foster, 1 M. & Rob. 368. At the first trial of this last case, it was ruled that the hought and sold notes were the contract; and it was held sufficient for the vendee to produce the bought note, leaving it to the vendor to produce the sold note, if he relied on a variance hetween the two. This the Court thought wrong. At the second trial it was left to the jury as a ques- tion of fact, whether, according to the usage of trade in the city, the bought and sold notes or the broker's book constituted the contract ; Denman, C. J., still retaining his opinion as expressed at the former trial upon the point of law. The jury found the bought and sold notes to be the contract. (y) Thornton v. Mmx, 1 M. & M. 43; Cumming v. Soebtick, 1 Holt, 172 ; Goom V. A^ah, 6 B. & 0. 117 ; Short V. Spackman, 2 B. & Ad. 962; Mnde V. Whiiehouse, 7 East, 558 ; Bhgden v. Bradbear, 12 Ves. 466, 472 ; Btwkmaster \. Han-op, 13 Ves. 456 ; Dickenson v. Lilwal, 1 Stark. 128. (A) Thornton v. Meux, ubi sup. Grant v. Fletcher, 5 B. & C. 436 Thornton v. Kempster, 5 Taunt. 785 Cumming v. Eoebucic, ubi sup. ; Kemp- son V. Boyle, 3 H. & C. 763. (») Grant v. Fletcher, supra, per Farlce, B. ; Pitts v. Beckett, 13 M. & W. at p. 746 ; Sievewright v. Archibald, 17 Q. B. 103. {k) Thompson v. Gardiner, 1 C. P. D. 777. {1) Thornton v. Charles, 9 M. & "W. 802. (««) Sawes V. Foster, ubi sup. («) Sawes V. Foster, and Sievewright V. Archibald, ubi sup. (o) Goom V. AJlah, 6 B. & C. 117; Short V. Spackman, 2 B. & Ad. 962. {p) Thornton v. Kempster, 5 Taunt. 786 ; 1 Marsh. 365 ; Thornton v. Meux, 1 M. & M. 43 ; Grant v. Fletcher, 5 B. & C. 436 ; Gregson v. Stick, 4 Q. B. 737; Cumming v.Soebuck, Holt, 172; per Gibbs, C. J., Cowie v. Semfry, 5 Moore, P. C. Ca. 232; but see re- marks on this case in Heyworth v. Knight, 17 C. B. N. S. 298; Sieve- wright V. Archibald, ubi sup. But quaere, whether the defendant, by re- cognising one of the notes as contain- 632 MERCANTILE CONTRACTS. Form and requisites of a contract of sale. point without the consent of the party sought to be charged, it will, as against him, be avoided (q). But a mistake in both notes as to the seller's name was considered not to vitiate the contract, if it were not shown that anyone was prejudiced thereby (r) ; and it has been held that a vendee was bound by a note signed by him and delivered to the vendor by the broker, though containing a provision not to be found in the note sent to the vendee (s). Where the vendee desired the ing the terms of the bargain, may not be considered to hare adopted and ratified it. See per Ilrle, J., Sieve- wrighi v. Archibald ; and see Moore v. Camptell, 10 Ex. 323. • (q) Powell V. Bivett, 15 East, 29 ; Mollett V. Waelcerharth, 5 C. B. 181. If there be a material omission or mistake in the contract the Court will relieve in some instances. See Borrow- man v. Bossel, 16 0. B. N. S. 58. {r) Mitchell v. Lapage, Holt, 253. (s) Sowe T. Osborne, 1 Stark. 140. Seethe ground for this, CowieY.Eemfry, 5 Moore, P. 0. Ca. at p. 249 ; and see Allen V. Bennett, 3 Taunt. 169. The text has been retained. From the cases Mr. Benjamin deduced the following rules : — (1) The broker's signed entry in the book constitutes the contract be- tween the parties, and is binding on both ; (2) The bought and sold notes do not constitute the contract ; (3) But the bought and sold notes, when they correspond, or state all the terms of the bargain, are complete and satisfactory evidence to satisfy the statute ; even though there be no entry in the broker's book, or, what is equivalent, only an unsigned entry ; (4) Either the bought or sold note alone win satisfy the statute, pro- vided no variance be shown be- tween it and the other note, or between it and the signed entry in the book ; (5) Where one note only is offered in evidence, the defendant ha^ the right to offer the other note, or the signed entry in the book, to prove a variance ; (6) As to variance between bought and sold notes — (a) when there is an entry ; (b) when there is not. In the former case "this entry will in general control the case " ; in the latter, it is a question of fact whether the acceptance by the parties of the bought and sold notes constitutes evidence of a new contract ; (7) Variance between correspondence and the bought and sold notes, the same rule as in case (6) ; (8) If the bought and sold notes vary, and there is no signed entry in the broker's book, nor other writing showing the terms of the bargain, there is no valid contract ; (9) In sale by a broker on credit, evidence of usage is admissible that the vendor is not botmd until he has had a reasonable time, after receiving the sold note, to inquire into the sufficiency of the pur- chaser, and to withdraw if he disapproves : Benjamin on Sale, 4th ed. p. 268. As to these rules, it may be said that neither the notes nor entry are in strictness the contract ; they are evi- dence of it, and the question in each case is, which document is the evi- dence. There may be, and often are, several memoranda of the same con- CONTRACTS OF SALE. 633 vendor's agent to enter a note of the contract in the vendor's ^o™ and ° _ _ _ _ requisites of ! book, it was held that this did not authorise the agent to hind contract of the vendee by his signature to such entry so as to satisfy the — '- statute {t). Section III. — Duties of Vendor. We have now discussed the form and requisites of a contract Duties of of sale. Next in order is the consideration of the duties it im- ^enjir^ poses. It may at the outset be stated that neither the vendor nor vendee can excuse himself from performing his side of the contract by breaking a condition which it is incumbent on him- self to fulfil, although it may have been stipulated, or even enacted, that the sale on breach of such condition shall be null and void, for that means void at the election of the other party (m). The duties of the seller arise out of — (a) conditions precedent, (b) conditions concurrent, (c) conditions subsequent, (d) war- ranties, and (e) representations. When a promise is wholly dependent on the fulfilment of another, the latter is a condition precedent («). When a promise must be fulfilled concurrently with another, they are concurrent conditions. When it is a term in a contract that the parties will be relieved from all or some of the duties under it, upon the happening of a certain event, it is a condition subsequent. A warranty is a promise forming part of the contract, the breach of which gives a right to compensation, but not to a rescission of the contract {y). It is usually said to be collateral and sub- sidiary to the agreement; but this appears to mean no more tract: Ede, J., in Bievetoright y. Ar- Thoi-nhill v. Neats, 8 C. B. N. S. 831. chibald, 17 Q. B. at p. 107. If they Compare Neill v. Whitworth, L. R. 1 agree, they are all equally evidence 0. P. 684. of the contract ; if one were lost, the [x) Behn v. Burness, 3 B. & S. 751 ; other would be sufficient to satisfy the Anson on Contracts, 5th ed. 301 ; statute. If they differ it would seem Roberts \. Berry, 3 D. M. & Gr. 284 ; to be a question of fact which is the Alexander v. Gardner, 1 Bing. N. C. tnie memorandum. 671 ; Fragano v. Long, 4 B. & C. 219 ; (t) Graham v. Mmson, 5 Bing. N. C. Gower v. Von Dedalzen, S Bing. N. C. 603 ; Graham v. FretwcU, 3 M. & Gr. 717 ; Staunton v. Wood, 16 Q. B. 638. 368; Durrelly. Evans, 1 H. & C. 174. (y) Einchcliffe v. Barmek, 5 Ex. D. (w) Malins v. Freeman, 4 Bing. N. 0. 177. 396 ; Holme v. G^lppy, 3 M, & W. 387; 634 MERCANTILE CO-NTEACTS. Duties of than the above definition (z). A representation is a statement, '- — made before or at the time of the agreement, hut not forming part of it, with respect to the suhject-matter of it. Delivery of Goods (a). — The vendor must deliver the goods as soon as the vendee has performed all conditions prece- dent on his part (b), and may, if he refuse to do so, he sued either specially for non-performance of his contract (c), or in trover or detinue (d) for the gobds themselves. He may, however, stipulate to the contrary, and may sometimes he exous.ed by causes over which he has no control, in circumstances ex- plained below (e). In the absence of any contract, express or implied, to the contrary, delivery means delivery at the place where the goods . are at the time of sale (ee). Goods are delivered, in the sense of complying with the contract of sale, when they are placed in the vendee's power, so that he may immediately remove them, and cannot be rightfully prevented from so doing (/). Thus, if the goods be in a stranger's close, and that stranger have, before the sale, licensed the vendee to take them (as, for ex- ample, where an auctioneer sells goods on the close of a stranger), that is a delivery (g), for the auctioneer had made the only delivery possible in the circumstances. The handing of a delivery order giving the buyer an immediate right to (2) Ohmter v. Eopkins, 4 M. & W. p. 665. at p. 404. ((Q See Merle's Botels Co. v. Jmm, (a) See the various meanings of 56 L. J. Q. B. at p. 283, per Bovoen, "deliyery" stated in Benjamiii on L.J. Sale, 4th ed. p. 677. («) TayUr v. Caldwell, 3 B. & S. (J) See Wilmshurst v. Bowker, 5 826; Howell v. Cotepland, 1 Q,. B. D. Bing. N. 0. 451 ; 7 M. & a. 882 258. (Ex. Ch.) {ee) Benjamin on Sale, 4th ed. 684 ; (c) In some instances this is the Hatch v. Oil Co., 10 Otto, 134. only remedy: see JEast India Co. v. (/) Woody. Tassell, 6 Q. B. 234. Paul, 7 Moore, P. C. Ca. 85; Logan v. {g) Salter, y. Woollams, 2 M. & G. Le MesUrier, 6 Moore, P. C. Ca. 116. 650 (for an attempt to reoonoUe this In this action now, if the contract be case with Burn v. Bentall, 3 B. & for specific goods, the plaintiff may C. 423, see Benjamin on Sale, 4th ed. recover and have execution for them, 683) ; Wood v. ManUy, 11 Ad. & E. 34 ; as well as damages for their non-de- and see Davies v. McLean, 28 L. T. livery: 19 & 20 Vict. c. 97, s. 2. As N. S. 113; StO'itton v. Austin, L. E. to the measure of damages, see infra, 7 0. P. 651. CONTRACTS OF SALE. 635 require the warehouse-keeper to deliyer or attorn to him, is Duties of vendor. delivery (A). ■ Where the seller has the option of delivering, or the huyer has the option of taking delivery, at more than one place, notice must he given of the particular place at which delivery is desired (k). If it be generally mentioned that the vendor shall not merely deliver but send the goods, that means within a reasonable time, and what time is, under the circumstances, reasonable, is a question of evidence (/). If the goods be beyond sea he ought to send the bill of lading in a reasonable time, in order that the vendee may have it in his power to go to market (•/»). It was once considered that, whether the time of delivery be specified or left at large, the delivery should be made at a reasonable hour, in order to discharge the vendor's duty. But it has since been held that an actual tender of the goods to the purchaser, if he be at his warehouse, at any hour of the last day which wiU allow him time before midnight to examine, weigh and receive them, in the absence of any special custom, will be good ; but that the j^urchaser is not boimd to remain at his warehouse after a reasonable time before sunset to allow of the examination (w). The words in contracts as to the quantity may be a condition precedent, non-observance of which will entitle the buyer to refuse to comply with the contract ; or they may be a mere estimate. When the contract is to deliver " about " a certain quantity, or a certain quantity " more or less," and the quantity actually delivered differs from that specified, the seller will fulfil his duties eveu if there be a slight deficiency. In the case of a contract for a specific lot of goods in any way identified, e. g., the goods in a particular Avarehouse, or ship, or mill — the word " about" is regarded as indicative only of an estimate ; if there be good (h) Zoiymer v. Smith, 1 B. & C. 1 ; ()«) £arber v. Taylor, 5 M. & "W. Sanders v. Maclean, XI Q. B. D. 327 at p. 633, where a refusal to deliver (delivery of bill of lading-) . tlie biU of lading vras held to entitle the (k) Davies v. Mc Lean, 28 L. T. N. S. vendee to rescind. 113 ; Armitage v. Imole, 14 Q. B. 728. (») Startup v. M'Doitald, 2 M. & G. {1} Mis v. Thompson, 3 M. & W. 395 ; but reversed in Exoh. Oh., 6 445. M. & G. 593. 636 MEKCANTILE CONTBACTS. Dirties of faith On the part of the seller, the contract is binding, notwith- vendor. , -r • standing a slight , deficiency. In Gfwillim v. Daniell{o), the agreement was that A. should sell and B. buy " aU the naphtha that A. might make from the 1st of June for two years, say from 1,000 to 1,200 gallons a month; " the words in italics were held only a representation. In Leeming v. Snaith (p), on the other hand, where a contract for wool was, " John Snaith, of B., sold to John Leeming & Co., what he may pull up to the 16th of January, sai/ not less than 100 packs of combing skin at 7| per pound." Three judges held this to be a positive contract for 100 packs at least. Where no independent circumstances indicative of the quantity sold exist, the amount named in the contract is material, and the word " about " provides merely for slight variations. The general rule is that, subject to a moderate margin, the seller cannot call upon the buyer to accept any greater or less quantity than that specified (q) . Where the contract of sale is to deliver a certain quantity of goods in monthly or other periodical instalments, failure to deliver or accept one or more of them may, in certain circum- stances, be treated as a rescission of the contract, justifying the other party in refusing to accept or deliver future instalments. The point arose in Soare v. Rennie (r). The defendant agreed to buy of the plaintiff 667 tons of Swedish iron, to be shipped by the seller in the months of June, July, August, and Sep- tember, in about equal monthly portions. In June, only 21 tons were shipped. The defendant having refused to accept this quantity, or any other instalments, the seller brought an action for non-acceptance. The defendant pleaded the non- acceptance of the quantity specified in the contract, and this was held to be an answer. In Simpson y. Grippin{s), the contract was that the defendant should deliver from 6,000 to 8,000 tons (o) 2 C. M. & R. 61. p. D. 155, where the same words were (p) 16 Q. B. 275 ; McConnel v. held to be a contract to deliver the y, li. R. 6 P. 0. 203; McLay quantity. V. Perry, 44 L. T. 152 ; Norrington v. (q) Renter v. Sala, 4 C. P. D. JFnj'Ai.SDa-risfS. C. tr. S.),atp. 204; 239, at p. 244, per Thesiger, L.J. Brawle v. United States, 6 Otto, 168. i ()•) 5 H. &N. 19 (1859). Compare McConnel \. Murphy, where (s) L. E. 8 Q. B. 14 (1872). See also " say about " were held to be words of Brandt v. Lavjrence, 1 Q. B. D. 344. expectancy, with Morrisy. Levison, 1 C. CONTRACTS OF SALE. 637 of coal in equal monthly deliveries into the plaintiff's waggons, Duties of during twelve months from the 1st of July. During the first month, viz., July, the plaintiff sent waggons to receive only 158 tons, and the defendants, on the 12th of August, gave notice that the contract was cancelled. The Court of Queen's Bench, Blackburn and Lush, J J. {Mellor, J., dissenting on the ground that he was hound hy the decision in Hoare v. Rennie (t)), held that the defendants were not entitled to refuse to carry out their contract. Which of these cases is right has been a matter of doubt. In Honek v. Mulkr («) , there was a contract by the defen- dant to deliver to the plaintiff 2,000 tons of iron to be delivered in November, or equally over November, December, and January. The plaintiff did not take delivery of any iron in November, but asked to be allowed to take delivery of one-third in December and one-third in January. It was held by the Comt; of Appeal {Bramwell and Baggallaij, L. JJ., Brett, L. J., dissenting), on the authority of Soare v. Rennie (ir), that the defendant was entitled to refuse to deliver any of the iron to the plaintiff. The Court thought that the plaintiff not having taken the whole in November, the contract must, under the circumstances, be taken to have been for delivery by equal portions during November, December, and January, and that the plaintiff, having failed to take any delivery in November, could not claim delivery during December and January of two-thirds of the whole amount bargained for. In the Mersey Steel and Iron Co. V. Nay lor, Benzon 8f Co. (y), the facts were as follows : The plaintiffs agreed to deliver to the defendants 5,000 tons of steel, to be delivered 1,000 tons monthly, commencing January, 1881, payment to be within three days after receipt of shipping docu- ments. The defendants took delivery in January and February of the January instalment. On the 2nd of February, before payment for the instalment became due, a petition was pre- sented to wind up the plaintiff company. The defendants objected to make the payment then due, imless the sanction of (0 6 H. & N. 19. D. 239 (1879). («) 7 Q. B. D. 92 (1881). See {x) 5 H. & jST. 19. also Brandt v. Lawrence, 1 Q. B. D. (y) 9 App. Gas. 434 (1884). 344 (1876) ; and Eeuter v. Sala, 4 C. P. 638 MERCANTILE CONTRACTS. Duties of the Court was obtained. The plaintiffs thereupon refused to Tendor. '■ *■ deliver. The House of Lords decided that payment of the instalment due was not a condition precedent to the right to claim the next delivery, and that the plaintiffs were hound to perform the contract. In cases of this kind two questions are involved. First, whether the payment for the goods abeady delivered is a condition precedent, and, secondly, whether the conduct of the party refusing to pay amounts to a renunciation of the contract (z). The answer to the first question depends upon the construction of the contract between the parties. "The contract," said Lord Selbome, speaking of the contract in The Mersey Steel, ^c. Go. v. Naylor, Benzon ^ Co. (a), "is for the purchase of 5,000 tons of steel blooms of the com- pany's manufacture ; therefore it is one contract for the purchase of that quantity of steel blooms. No doubt there are subsidiary terms in the contract as to the time of delivery and as to the time of payment, but that does not split up the contract into as many contracts as there shall be deliveries for the purpose of so many distinct quantities of iron. It is quite consistent with the natural meaning of the contract, that it is to be one contract for the purchase of that quantity of iron, to be delivered at those times and in" that manner, and for which payment is so to be made. It is perfectly clear that no particular payment can be a condition precedent of the entire contract, because the delivery under the contract was most certainly to precede payment." Of course it may be, and sometimes is, a condition precedent; but inas- much as the failure to deKver can generally be satisfied by damages, it is, as a rule, not such. In order to answer the second question, whether the failure of" the one party to comply with the contract amounts to a renunciation or repudiation of it, " You must examine what that conduct is, so as to see whether it amounts to a renunciation, or to an absolute refusal to perform the contract such as would amoun,t to a rescission if he had the power to rescind, and whether the other party may accept it as a (2) See Fordage v. Oole, I Wms. (a) 9 App. Cas. 434, at p. 439, citing Saund. 548 ; 2 Sm. L. C. 9th ed. the rule by Lord Coleridge, C. J., in PP- U, 12. Freeth v. Bim; L. E. 9 C. P. 208. CONTUACTS OF SALE. 639 reason for rescinding "(6). When, as in 7/ocMer v. Du /ff Tour{c), Duties of one of the parties gives clear indication that he will not perform tlie contract, there is no diffieulty ; the other party need not wait for the breach, but may at once sue for damages. But what is meant by conduct amoimting " to a renunciation or to an abso- lute refusal," when nothing to that effect is expressed, or there is an expression to the contrary? Some of the cases suggest that the existence of an intention to repudiate the contract is necessary. Obviously, however, an intention does not amount to a rescission, which requires the concurrence of all parties to the contract. The existence of intention would be no defence to an action unless there was a failure to comply with a condition precedent ; and if there was a non-compliance with a condition precedent, the non-existence of the intention would be, it is submitted, immaterial. It is conceived that the test is (a) whether one of the parties has said, or by his conduct indi- cated, that he will not perform the contract ; in other words, whether the principle of Hochster v. Be la Tour (d) applies ; and (b) if there has been a failure to perform the contract, whether the breach is of a condition precedent (e) . Wbere the contract has been partly fulfilled, as it is impossible to put the parties in their original position, a breach which might justify a re- scission of the contract if it were unfulfilled, may not have that effect (/). (i) liOidSelhoTueiaMersei/ Steel, $0. L. E. 9 C. P. 688; Morgan v. Bain, Co. V. Naylor, Benzon f Co., ubi supra. L. R. 10 C. P. 15 ; Ex parte Chahters, (c) 2 El. & Bl. 678. L. E. 8 Ch. 289, seem open to grave ((i) Ibid. doubt. Mr. Justice Gray, delivering {«) Mei-aey Steel and Iron Co. v. the judgment of the United States Naylor, §e. Co., 9 App. Cas. 434, at SMpremeCouTtm Ndrrinfftonv.TFriyht, p. 444, per Lord Blackburn. 8 Davis, at p. 211, says, "upon a re- (/) The following are the chief cases view of the English decisions, the rule on the subject in order of date. Soare laid down in the earlier cases of Moare V. Rennie, 5 H. & N. 19 ; Jonassohn v. v. Rennie and Coddington v. Paleologa, Young, 4 B. & S. 296; Simpson v. as well as in the later cases of J?««i«r v. Crippin, L. E. 8 Q. B. 14 (which Sala and Monclc v. Muller, appears to conflicts with Soare v. Rennie) ; Freeth us to be supported by a greater weight V. Burr, L. E> 9 C. P. 208 ; Honok v. of authority than the rule stated in Muller, 7 Q. B. D. 92 ; Mersey Steel the intermediate oases of Simpson v. Co. V. Naylor, 9 App. Cas. 434 ; John- Crippin and Brandt v. Lawrence, and stone V. Milling, 16 Q. B. D. 460. to accord better with the general prin- Such oases as Bloomer v. Bernstein, ciples aflirmed by the House of Lords 640 MERCANTILE CONTRACTS. Daties of When the contract specifies a particular time of delivery or vendor. . . , • i j.-l j.i • • — shipment, the question m each ease is whether this is a warranty or condition precedent ; and, speaking generally, in mercantile contracts such conditions are of the essence of the contract, upon the failure or non-performance of which the party aggrieved may repudiate the contract {g). If no time is fixed upon for payment of the price, or if the parties have not embodied any usage as to the time, payment is to he concurrent with delivery (Ji). In the absence of special stipulation, the condition precedent upon the vendee's part is readiness to pay the price («). If the goods were to be paid for by a bill, the vendee ought to tender one (^) ; but the word hill will not be held to mean approved bill {I). If an approved bill be stipulated for, that means a bill to which no reasonable objection can be made (ot). There are some eases indeed in which the vendor may be obliged to deliver the goods without payment or tender of the price : these are — First, where by special agreement between the parties the day of payment is to be subsequent to that of dehvery; in other words, where the goods are sold on credit. Tet, even in such case, though the vendee has the title to the property and a right to possession («) without payment or tender of the price, yet that in Bowes v. Shandy 2 App. Gas, ii>5, facie evidence of readiness to pay. ■while it nowise contravenes the deci- But quaere. sion of that tribunal in Meraey Co. v. (k) Sodgson v. Davies, 2 Camp. 500. Naylor." On the effect of payment by biU, see ig) See the remarks of Lord Cairns post, Chap. 13, on Contracts of Debt; in Bowes v. Shand, 2 App. Cas. 455, at and see Bunney v. Poyntz, 4 B. & Ad. p. 463. 568; MiUs v. Gorton, 2 C. & M. 504. (A) Bloxam v. Sanders, 4 B. & 0. See Korncastle v. Tarran, 3 B. & Aid. at p. 948 ; Simmons y. Swift, 5 B. & C. 497. at p. 862. [l) Ibid. But probably evidence («) Bawsony. Johnson, 1 East, 203. that such was the meaning of "bill" See Feeters v. Opie, 2 Wms. Sauud. would be admissible. 3o2a, notes ; and Jackson v. Jacob, (»») Ibid. Smith v. Mercer, L. R. 3 Bing. N. C. 869 ; Bordenave v. 3 Ex. 51. See Adam v. Richards, Gregofy, 5 East, 107; Lawrence v. 2 H. Bl. 573; Thirshy v. MeXbot, 3 KnowUs, 5 Bing. N. C. 399 ; Ex parte Mod. 272. As to payment "at con- Chalmers, L. B. 8 Ch. 289; Morgan venience" of buyer, see Crawshaw v. V. £am, L. R. lOC.P. 15. laSquiery. Bbms■) See Brandon v. Newington, 3 (o) Reayy. White, 1 0; & M. 748 Slater v. Junes, L. R. 8 Exch. 186 C-anley v. milmy, 2 M. & S. 120 Q. B. 915 ; TyUr v. BUnd, 9 M. & W. 338 ; Cotton v. Godwin, TUL. ScYT. 147. (») J)ixon y. Clarice, 5 0. B. 365. (■JNTRACrs OF DEBT. 671 Qodwin it), where the debt was a promissory note. The person tendering must be ready and willing to perform (m). Although, as we have seen, there can be no legal tender except of cash or its equivalent, payment {x) is often, by mutual con- sent, made in a bill or note. The taking of this amounts to an agreement to give the debtor credit for the time it has to run, and suspend the creditor's remedy in the meanwhile (y), except in cases where the debt is also secured by a specialty (s), or is otherwise of higher degree than simple contract, as, for instance, if it be due on account of rent {a). Still a biU or note may, by mutual agreement, operate as immediate payment (J) ; and the transferable note of the debtor himself may be taken in discharge of a liquidated debt of a greater amount (c) . It is, however, in general, no satisfaction of any debt or demand for which it has been given {d), but only primA facie evidence of payment, rendering it necessary that the creditor should account for it before he can be entitled to recover the consideration (e). Duty of debtor. {t) 7 M. & W. 147. (m) Coore v. Callaway, 1 Esp. 116; Rivera v. Griffiths, o B. & Aid. 630. (x) Maillard v. The Duke of Argyle, 6 M. & G-. 40. See Caine v. Ooullon, 1 H. & C. 764. (y) Sleiman v. Gooch, 1 Epp. 3; Kearslake v. Morgan, 6 T. R. 513 ; Sangerjield v. Wilby, i Esp. 169 ; Savey v. Fhelpa, 2 M. & Gr. 300 ; Cohen V. Sale, 3 Q. B. D. 371 ; Richardson V. Harris, 22 Q. B. D. at p. 275. As to the efEeot of contracts giving the buyer the option of paying by cash or by bin, see Schneider v. Foster, 2 H. &N. 4. (s) Drake v. Mitchell, 3 East, 261 ; Curtis V. Rush, 2 V. & B. 416 ; B. N. P. 182 ; Worthinyton v. Wigley, 3 Bing. N. C. 464. But in Baker v. Walker, 14 M. & "W. 465, the Court held that a note payable at a future day, which did not appear to be transferable, given for and on account of a judg- ment debt, was good, because the inference was, that the creditor agreed to suspend his remedy, compliance with which agreement was a sufiBoient consideration. [a) Davis v. Gyde, 2 Ad. & E. 623. But see ParrottY. Anderson,TE,7ich. 93. (J) Sard\. Rhodes, 1 M. & W. 163 ; Cowasjee v. Thompson, 3 Moo. Ind. Ap. Ca. 422. (c) Sibree v. Tripp, 16 M. & W. 23. [i) Puokford V. Maxwell, 6 T. B. 52 ; Owenaon v. Morse, 7 T. E. 64 ; Tapley T. Martens, 8 T. R. 461 ; Constable v. Andrew, 2 C. & M. 298 ; Tarleton v. Allhusen, 2 Ad. & E. 32 ; Hough v. May, 4 Ad. & E. 964 ; Gcodwin v. Coates; 1 M. & Rob. 221, where Parke, J., held, at N. P., that a ven- dor taking from his vendee the note of a third party, payable two months after date, and not indorsed by the vendee, was not bound to present it before suing for the price, for that it was the duty of the maker to pay it without demand, and, therefore, that of the vendee to see it paid. But see Mercer v. Cheese, 4 M. & Gr. 804. (c) Per Pollock, 0. B., Griffith v. Owen, 13 M. & W. at p. 64 ; Caine v. CouHon, supra. 672 MERCANTILE CONTRACTS. Duty of debtor. Although, generally speaMng, the bill or note is no satisfaction, it will operate as such if the debtor's liability (/) upon it be dis- charged by its loss {g), or by the holder's laches {h) or folly, as if he alter it so as to discharge the parties thereto (») ; or if the creditor agree to receive it as cash and take upon himself the risk of its being paid [h), or if it were transferred to him by way of sale (/). If the creditor negotiate the bill or note for value, and without rendering himself liable, it will, though dishonoured, operate as payment, and the vendor's lien will not revive. Therefore, in Bunney v. Poyntz (m), where the agent of a vendor took the notes of the vendee and another for the price, discounted them with his banker and indorsed them, but the vendor, his employer, did not indorse them, the Court held, that the vendor must be considered as having received payment for his goods. (/) And so lie will be discharged, though the debtor be not liable upon it, by laches, &c. (y) Grow V. Clay, 9 Exoh. 604 : JungUuth v. Way, 1 H. & N. 71. (A) Peaeock \. Funell, 14 C. B. N. S. 728 ; even though it was received only as collateral security. Sopkins v. Ware, L. E. 4 Ex. 268; Srriith v. Mercer, L. R. 3 Ex. 51. But if notes of a banker be given on account, and he happen to have failed, the debtor will not be discharged, if the creditor ascertain and give notice of the failure to the debtor within a reasonable time, though this be not done before the period for presentment has expired, and no presentment have been made : Eobsm V. Oliver, 10 Q. B. 704. (i) Byles on Bills, 14th ed. 340; AWerson v. Langdale, 3 B. & Ad. 660 ; Bridges v. Berry, 3 Taunt. 130; Bishop V. Rowe, 3 M. & S. 362. See Sloman T. Cox, 1 C. M. & E. 471. Unless, indeed, the debtor, being himself the maker or acceptor, could have no remedy over on it against any other party, and consequently cannot be damnified by the alteration : Atkinson V. Hawdon, 2 A. & E. 628. (/f) Bead v. Butchinson, 3 Camp. 352 ; Sard v. Rhodes, 1 M. & W. 153 ; Guardians of Lichfield v. Greene, 1 H. & N. 884. See Owenson v. Morse, 7 T. E. 64 ; Camidge v. Allenby, 6 B. & 0. 373; Ward V. Evans, 2 Ld. Raym. 928 ; Broum v. Kewley, 2 B. & P. 618; Clerk V. Mmdall, 12 Mod. 203; 1 Salk. 124. (l) Fydell v. Clark, 1 Esp. 447 ; & parte Shuttleworth, 3 Ves. 368 ; Bamk of England v. Newman, B. N. P. 277 ; Ex parte Isbester, 1 Rose, 23. Unless the party giving it knew at the time that it was of no value, for that is fraud {Fenn v. Sarrison, 3 T. R. 757 ; Gmnpertz v. Bart'ett, 2 E. & B. 849) ; upon discovery of which the holder may, if the instrument were given in payment for goods, disaffirm the con- tract of sale, and sue for them in trover : Savise v. Ramshottom, 1 R. & M. 414 ; Bishop v. Shillito, 2 B. & A. 329, n.; White v. Garden, 10 C. B. 919 ; Read v. Sutehinson, 3 Camp. 362 ; Earl of Bristol v. Wilsmore, 1 B. & C. 814 ; Kilby v. Wilson, 1 R. & M. 178. (m) 4 B. & Ad. 568. CONTRACrS OF DEBT. 673 and could not retain them, thougli his agent afterwards became Duty of bankrupt, and the notes were dishonoured. But if the creditor 1- negotiate the bill or note so as to render himself personally liable upon it, in that case it wiU not operate as payment if dishonoured. Thus, in Miles v. Gorton («), where the vendee of some hops accepted a bill for the price which the vendor drew, and afterwards indorsed and negotiated, it was held that, on the vendee becoming bankrupt, and the bill being dishonoured, the vendor's lien on the hops revived. To the like effect is the case of Gunn v. Bokkow 8( Co. (o). The defendants had sold iron rails to the A. Company, payment to be made by buyer's acceptances. As the wharfingers' certificates were delivered, the A. Company accepted the drafts of the defendants, which the latter negotiated. The A. Company becoming insolvent, and the bills not being met, the Court of Appeal held that the defendants' lien as unpaid vendors revived. The reason of this distinction appears to be, that, in the former case, the vendor has obtained value for the instrument, which value he cannot be compelled to refund, and would, therefore, be paid twice, if permitted to recover the price of the goods. But, in the latter case, he is, as an indorser, compellable to refund the value he has received. And I conceive that, on the same principle, if, instead of indorsing the instrument, he were to give it in payment for other goods, inasmuch as, on its dishonour, his liability for those second goods would revive, so also would his right to sue for the price of his own goods if delivered, or to retain them, if in his possession and not dehvered. However, in this latter case, which was the case in Miles V. Gorton («), till he has actually taken up the bill or paid for the other goods, it is uncertain whether the bill wiU prove valuable to him or not ; and it seems, therefore, that he ought not to be allowed to sue for the price of his own goods tiU that («) 2 C. & DX. 504. ferenoe, because they have no security (o) L. R. 10 Ch. 491. Mellish, L. J., on those bills ; there is no third person says, at p. 503, "Mr. Kay said that or party to the bills." But it is cou- Bolckow, Vaughan & Co., had nego- ceived that the circumstance of third tiated these biUa. I do not think persons being liable would not affect myself that that would make any dif- the matter, if the vendors were liable. S. VOL. I. XX 674 MEKOANTILE CONTRACTS. Duty of uncertainty has been determined {p), though, if he have them in debtor. his hands, he may retain his lien on them, as in Miks v. Gorton {q)i In Tarleton v. Allhusen{r), the doctrine just laid down was carried a step further, and it was held, that when the vendor took a hUl, and indorsed it to B. & Co., who sued the acceptor and ohtained judgment, but did not sue out execution, and the vendor afterwards took up the bill, he was not to be considered paid for his goods, upon the principle laid down before in this Book, Chap. I., viz., that judgment is not pet' se a satisfaction. In one case, payment by the delivery to the bankrupt of his own dishonoured acceptance was held sufficient (s) ; but that seems to have proceeded on the ground that the bank- rupt's conduct amounted to an assent to receive it as cash, otherwise it would be difficult to reconcile the case with Hough V. Mai/ (t). If payment is to be made by a bill payable at a certain period, the creditor cannot, even if the bill be not delivered according to agreement, commence an action on the consi-' deration till the expiration of that period, though he may sue in the meantime upon the special contract, and complain of the non-delivery of the bill in conformity thereto («). "Where goods were sold at six months' credit, payment then to be made by a bill at two or three months, this was considered in efEect a nine months' credit (»). By the civil law, payment by whomever made liberated the debtor — " Nee interest ereditori quis solvat, utrum is qui debet an alius pro eo; liberatur enim et alio solvente, sire sciente sive ignorante debitore, solutio vel invito eo fiat." It would appear [p] That a negotiable bill or note is (a) Selps v. Winterbotham, 2 B. & outstanding in other hands, is, in Ad. 431 ; Sibree v. Tripp, 16 M. & W. general [Tlie National Savings Bank v. 23. See, where the vendee has the Tranah, L. R. 2 C. P. 656), an answer option to pay either in cash or by bill, to an action for the debt for which Schneider \. Foster, 2 H. & N. 4 ; it was given, see Belshaxe y. Bush, 11 also, where the contract is only par- 0. B. 191. tially executed, and he has rescinded (?) 2 C. & M. 604. it, Bartholomew v. Marktvick, 15 C. B. (r) 2 Ad. &E. 32. N. S. 711. («) Mai/er v. Mas, 1 Bing. 311. {x) Belps v. Winterbotham, 2 B. & (<) 4 Ad. & E. 954. Ad. 431, Farke, J., dubitante. CONTRACTS OF nEIiT. 675 that by the law of England, if payment be made by a stranger Duty of for or on account of the debtor, and the latter choose to adopt it — while the creditor retains the money, the payment is good (y). There may be discharge by novation, that is, a new contract may be entered into with intent to dissolye a former contract. The acceptance of the new liability will be good consideration for giving up rights under the first contract (a). Where a debtor gives to his creditor a draft or order on a debtor of the former, and the creditor together with the debtor assents to the substitution, and the original debt is discharged (6), there may be discharge by expromission, that is, the substi- tution with his assent of a new debtor (c). So far as insurance companies are concerned, the matter is regulated by 35 & 36 Yict. c. 41 , s. 7, which declares — " Where a company, either before or after the passing of this Act, has transferred its business to or been amalgamated with another company, no policy-holder in the first-mentioned company who shall pay to the other company the premiums accruing due in respect of his poHcy shall by reason of any such payment made after the passing of this Act, or by reason of any other act done after the passing of this Act, be deemed to have abandoned any claim which he would have had against the first-mentioned com- pany on due payment of premiums to such company, or to have accepted in lieu thereof the liability of the other company, unless such abandonment and acceptance have been signified by some writing signed by him or by his agent lawfully authorized." This discharge is effectual as to bills and notes. The BiUs of Exchange Act, 1882, by s. 62, enacts : — " (1.) When the holder of a bill at or after its maturity absolutely and unconditionally renounces his rights against the acceptor, the bUl is discharged. The renunciation must be in writing unless the bill is delivered up to the acceptor. (y) Bfhhaw V. Bush, 11 C. B. 191 ; (a) Wilson v. Couplaml, 5 B. & Aid. Simpson v. Bggington, 10 Ex. 846; 228. Cook V. Lister, 13 C. B. N. S. 543 ; (4) Dickinson v. Marrow, 14 M. & W. Kemp V. Balh, 24 L. J. Ex. 47. But 719. see Jones Y. Broadhurst, 9 C. B. 173; (c) Thornhill v. Mats, 8 C. B. N. Waltei- v. James, L. E. 6 Ex. 124; S. 831. Incas V. Wilkinson, 1 H. & N. 420. xx2 676 MERCANTILE CONTRACTS. Duty of " (2.) The liabilities of any party to a bill may ia like manner be debtor. renoimced by the bolder before, at, or after its maturity; but nothing in this section shall affect the rights of a holder in due course without notice of the renunciation." Amount of Payment — Interest. — The amount of the sum due to the creditor is frequently, between the time of contract and that of payment, increased by the addition of Interest. Interest is, and always was, payable where there has been a contract to that effect, express, or to be implied from circumstances, the usage of trade (d), or the mode of dealing between the parties (e) ; and also upon a bond, bill, or promissory note (/). In most other cases, there was a considerable dispute upon the question of interest, and the leaning of the Courts seemed on the whole against allowing it. However, by stat. 3 & 4 WUl. 4, c. 42, it was enacted — Sect. 28. " Upon all debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue or inquisition of damages, may, if they shall think Jit, allow interest to the creditor, at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time ; or, if payable otherwise, then from the time when demand of pay- ment (ff) shall have, been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment, provided that interest shall be payable in all cases in which it is now payable by law " (A). Sect. 29. " The jury on the trial of any issue or inquisition may, (, M. & M. 449. See 4 678 MERCANTILE CONTRACTS. Daty of debtor. applied. The rule is, that the party payiag has power to make the application at the time of payment (o), which he may do either hy express words, or a conduct indicative of his inten- tion {p) ; but that,- if he neglect to make it, the party receiving may (g), and is not bound to make an immediate application (r) ; and though it was once said that perhaps he ought to make one within a reasonable time (s), it seems now pretty well established that he may make it at any time before the matter comes to the consideration of a jury {t). When there is an account current between the parties, ex. gr., a banking account, the law, in the absence of any other specific arrangement, or course of dealing between the parties, pre- sumes that they intended to apply the first item on the credit side to the first item on the debit side, and so on («). " The civil law," said Tindal, C. J., in Milh v. Fowkes (a), " it is said, applies the payment to the more burdensome of two debts, where one is more burdensome than the other ; but I do not think that such is the rule of our law. According to the (o) Per Bayley, J., Simson v. Ingham, 2 B. & C. 72 ; Lancashire Waggon Co. v. Nutiall, 42 L. T. N. S. 465. (p) Clayton's case, 1 Mer. 572 ; Newmanh t. Clay, 14 East, 239 ; Shaw V. Picton, 4 B. & C. 715 ; Taylor T. Kymer, 3 B. & Ad. 320 ; Marryatts V. White, 2 Stark. 101 ; Thompsm v. Hudson, L. E. 6 Ch. 320 ; Johnsm v. Soberts, L. E. 10 Ch. 505. See Kirkpatriek v. S. Australian Insurance Co., 11 App. Oas. 177. (q) Kinnaird v. Webster, 10 Ch. D. 139 ; Booper v. Keay, 1 Q. B. D. 178 ; Goddard y. Cox, 2 Str. 1194 ; Flomery. long, 1 Stark. 153 ; Marryatts v. White, 2 Stark. 101 ; Mathews v. Wal- wyn, 4 Ves. 118; Peters v. Anderson, 5 Taunt. 596 ; Sail v. Wood, 14 East, 243, n. ; Kirbyv. Duke of Marlborough, 2 M. & S. 18 ; Bosanquet v. Wray, 6 Taunt. 597 ; Bodenham v. Purchas, 2 B. 6 Aid. 39. The following rule may- he useful in ascertaining the intention ■with which any particular payment was made and received, and the mode in which it ought to he applied: "Where a creditor receives, -without objection, what is offered by his deb- tor, solvitur in modum solventis. Where the creditor objects, recipitur in modum recipients." — Per Tindal, C. J., Webb V. Weatherby, 1 Bing. N. C. at p. 505 ; Croft v. Lumley, 5 E. & B. 648. (r) Simson v. Ingham, 2 B. & C. 65. See Cox v. Troy, 5 B. & Aid. 474 ; Mills V. Fowkes, 5 Bing. N. C. 455. (s) See Simson v. Ingham, per Best, J., ubi supra. (<) Philpott V. Jones, 2 A. & E. 42. («) Clayton's case, 1 Mer 572; Bodenham v. Purchas, 2 B. & Aid. 39 ; Dawe V. Moldsworth, Peak, 64, and notes ; Wilson v. Sirst, 4 B. & Ad. at p. 767. But see Henniker v. Wigg, 4 Q. B. 792 ■; City Discount Co. v. McLean, L. E. 9 0. P. 692; Kinnairdy. Webster, L. E. 10 Oh. D. 139 ; Pearl v. Deacon, 1 Be G. & J. 461. (a:) 5 Bing. N. 0. at p. 461. CONTRACTS OF DEBT. 679 law of England, the debtor may, in the first instance, appropriate Duty of the payment — sohitur in modum solventis ; if he omit to do so, the creditor may make the appropriation — recipitur in modum reeijnentis ; but if neither make any appropriation, the law appro- priates the payment to the earlier debt." And, accordingly, in that case it was held, that the debtor having made no appropria- tion at the time of payment, the creditor had a right to appro- priate a payment made generally to a debt barred by the Statute of Limitations (y). Nay, in one case it was decided that a solicitor who had done work for a corporation without a retainer under seal, might appropriate a general payment to the work so done ; though the Court held at the same time that he could not have recovered payment in an action (z). Where there are distinct demands, one against a firm, and the other agailist one only of the partners, if the money paid be the money of the partners, and be not specifically appropriated by the payer, the creditor must not, and the law will not, apply it to the demand upon the individual ; for that would be to pay the debt of one with the money of others {a). Nor will the rule apply where a trustee, who has paid in trust money to his own private account at his bankers, draws out sums by cheques generally ; he will be taken to have drawn out his own money. A trustee cannot be heard to say that he took away the trust money when he had a right to take away his own money {b) . Nor will an appropriation be allowed, which would deprive the party paying of a benefit, such as the taxation of costs ; and, therefore, a solicitor cannot apply a general payment to the taxable items of his bill only (c). If some of the demands be illegal, a general payment vyiU be applied to the legal demands (c?) ; but where an Act of Parlia- ment does not render a particular species of contract illegal, but only prohibits the enforcement of it bt/ action, there a creditor (y) Accord. Williams v. Griffith, 5 (o) Thompson v. JBrotm, M. & M. M. ftW. 300. See Walker \. Butler, 40. 6 E. & B. 506. (}) In re Hallett's Estate, 13 Ch. D. (2) Arnold v. Mayor of Poole, 4 M. 696 ; Sancoeh v. Smith, 41 Ch. D. 456. & Or. 860. See the caae of an unoer- (c) James v. Child, 2 Tyr. 732. tifioated attorney, In re Jones, L. R. (rf) Ribbans v. Crickett, 1 B. & P. 9 Eq. 63. 264 ; Wright v. laing, 3 B. & 0. 165, 680 MERCANTILE CONTRACTS. Duty of debtor. may appropriate a general payment to a demand arising out of such a contract (e). Where the same broker sold goods of A. and goods of B. to the payer, a general payment, if insufficient to discharge both debts, must be applied proportionably to them both (/). The rule in Clayton\s case (g) presupposes the existence of an unbroken account, and payments made in that account ; it does not apply where payments are made to a new and distinct account (A). An intention on the part of the debtor to appropriate to a particular debt is, perhaps, more easily pre- sumed in favour of a surety, where there are any circumstances which can be considered indicative thereof («') ; but in the absence of a contract, express or implied, the mere existence of the relation of principal and surety does not take away the right of the payee to appropriate payments in accordance with the rule in Clai/ton's case {k). Where a partner dies and the partnership is in debt, and the surviving partners continue to deal with a creditor who joins the transactions of the old and new firms in one account, the payments made by the surviving partners must be applied to the old debt (l). Duty of creditor. Section III. — Dutp of Creditor. The duty of the creditor is to receive the payment, if tendered at the proper time, and give a proper acquittance. The con- sequence of his refusing payment when tendered wOl be, that if he afterwards commence an action for the amount, the tender, accompanied by a payment of the sum tendered into Court, will be a good defence, unless the creditor can prove a prior or subsequent demand and refusal (m). Such a tender, moreover, will prevent interest from afterwards running against the debtor («). («) FMllpott V. Jones, 4 N. & M. 11 ; 2 ^d. & E. 41 ; Cruiks/umJes v. £ose, 1 M. & Eob. 100. (/) Favenc v. Bennett, 11 East, 36. iff) Supra. (/,) In re Sherry, 26 Ch. D. 692, 702. (i) Marryatts v. White, 2 Stark 101. {k) In re Sherry, 25 Ch. D. 692; Flomer v. Lmff, 1 Stark. 163. See V. Eickling, L. R. 2 0. P. 199. [l] Hooper v. Keay, 1 Q. B. D. 178. (m) Spybey v. Hide, 1 Camp. 181 ; Rivers v. Griffiths, 6 B. & Aid. 630 ; Coore V. Callaway, 1 Esp. 115. («) Dent T. Dunn, 3 Camp. 296. See Hume v. Pephe, 8 East, 168. CONTRACTS OF DEBT. 681 As to Acquittance. — It seems douttful whether the debtor had, Duty of creditor. at common law, a right to demand a receipt on payment, excepting from the King's receiver (o). However, by 33 & 31 Vict. c. 97, s. 123, if a person refuses to give a receipt duly stamped, in any case where it would be liable to duty, he shall forfeit the sum of 10l.{p). A receipt, though strong, is not conclusive evidence of pay- ment (q), unless it be by deed ; for then, in the absence of fraud, the law admits no evidence to the contrary (>•). A receipt in full of all demands is an admission of great weight, and it has even been said, that, in the absence of mistake, it is conclusive («). But this doctrine is incapable of being supported, and we may venture to assume that it must, like other matters not amounting to estoppel, be used as evidence to be submitted to the jury, and is capable of being rebutted {t) . All receipts for or upon the pay- ment of money amounting to 21. or upwards, now (») bear one uniform duty of Id., tor which adhesive stamps may be used, which the creditor must cancel. The former exception of bankers' accoimtable receipts given to their customers still exists, qualified by the proviso, that the money is expressed to be received from the person to whom it is to be accounted for. Receipts requiring a stamp cannot be stamped after they have been written, except within fourteen days, on payment of the duty and 51.; or one calendar month, on payment of the duty and 10/. («). (o) See CoU v. BlaJce, Peake, 179 ; v. L. B. # S. 0. My. Co., 2 Q. B. D. 1. Bunb. 348; Pitz. "Damage," 75; [s] Alner t. George, 1 Camp. 392. Bro. Ab. tit. " Faites," pi. 8 ; Fortes- See Briatow v. Eastman, 1 Esp. 172. cue, 145. See, however, the observa- {t) Lee v. Lancashire ^ Yorkshire My. tions of Farke, B., in Miehardson v. Co., L. E. 6 Ch. 527 ; Benson v. Ben- Jackson, 8 M. & W. 299. nett, 1 Camp. 394, n. ; Lampon v. (^p) See pp. 667, 668, ante. Corke, ubi supra ; B. N. P. 56 ; Farrar (q) Straton v. Mastall, 2 T. R. 366 Lampon v. Corke, 5 B. & Aid. 606 Skaife v. Jackson, 3 B. & C. 421 V. Hutchinson, 9 Ad. & E. 641 ; Sirsch- l V. L. B. f S. C. My. Co., supra. («) 33 & 34 Vict. 0. 97, ss. 120, 121, Graves v. Key, 3 B. & Ad. 313. Sohed. (r) ailb. L. Ev. 142 ; BirachfieU (a;) 33 & 34 Vict. u. 97, s. 122. -VOL. I. Y V lONDON : PBINTED BY 0. P. EOWOBTH, QEEAT NEW SIEBET, PETTEE LANE. COMPENDIUM OF MERCANTILE LAW BY JOHN WILLIAM SMITH, lATE or THE INNEE TEMPLE, ESaUIKE, BAEEISTEE-AT-LAW. TENTH EDITION EDITED BY JOHN MACDONELL, M.A., A MASTER OF THE SUPREME COUET OF JUDIOATUEE. ASSISTED BY GEOEGE HUMPHREYS, B.A., iiK TUI-: MIDDLE TEMPLE, ESQUIRE, B A BR I ST B R- AT- L A. \V. IN TWO VOLUMES. Vol. II. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, SWEET AND MAXWELL, LIMITED, 3, CHANOEEY LANE, TOEONTO: CAESWELL AND CO., 1890. LONDON : PHINTED BY C. F. ROWORTH. OEKAT NKW STKEBT, Fltl'TKli LANK — E.G. ( 683 ) BOOK THE FOURTH. OF MERCANTILE REMEDIES. It is proposed to treat, in this Book, of Mercantile Remedies : that is, omitting all consideration of those universal ones, by action, which are open to merchants in common with the rest of her Majesty's subjects, to speak of such as are, from their very nature, exclusively, or almost exclusively, appropriated to that class of the community, with whom we are, in this Treatise, chiefly concerned. CHAPTEE I. STOPPAGE IN TKANSITTJ. Sect. 1. Right to stop in Transitu — u-hat. 2. WTio possesses it. 3. Sow long it continues 4. How defeated. 5. Sow exercised. Section I. — Right to stop in Transitu — what. The first subject which we shall place under this head is that Eight to stop of Stoppage in Transitu, which is, indeed, a measure rather of ^ha?"*' "^^ prevention than of cure ; but yet sufficiently entitled to the epithet remedial to justify its present collocation. When goods are consigned on credit by one merchant to another, it sometimes happens that the consignee becomes VOL. II. — s. — c. z z 684 MEKCANTILE REMEDIES. Eight to stop bankrupt or insolvent {a) while tlie goods are on their way •what. ~ to him, and before they are delivered. In such ease, as it would be hard that the goods of the consignor should be applied in payment of the debts of the consignee, the former is allowed by law to resume possession (c) of them, if he can succeed in doing so while they are on their way, and before they have got into the purchaser's possession. This resumption is called stoppage in transitu [d), and the doctfiue of stoppage in transitu has always been construed favourably to the unpaid vendor (e). Insolvency is understood generally by merchants as having a popular and not a technical meaning, and it has been frequently construed by the Courts in its larger sense. The term insolvency (when used with reference to this branch of the law) is satisfied by general inability to pay, evidenced by stoppage of payment. In JBiddkcombe v. Bond{/), it was held in a contract to mean general inability to pay debts. It seems that there is no necessity that the vendee should have become bankrupt, or that a receiving order should have been made against him, but that general inability to pay, evidenced by stoppage of payment, is sufficient {g). Mere failure by the vendee to comply with a condition subsequent, as the sending, in accordance with the contract, of a banker's draft for the price, does not give the vendor the right to resume possession after the property has vested in the vendee (A). [a) For history of the right, see But the right seems to have existed as Lord AUnger^s judgment in Gibson v. part of the lex mercatoria : Blackburn Carruthers, 8 M. & W. 321. In on Sale, 2ud ed., p. 318. Wihmhurst v. Bowlcn, 2 M. & Gr. at p.. [e] Beihell v. Clark, 20 Q. B. D. at 812, Tindal, 0. J., says, " The ordinary p. 617, per Lord Esher, M. E. right of countermanding the actual (/) 4Ad. &E. 332. See per /ames, delivery of goods shipped to a con- Y.-0.,iD.IteMiropean Assurance Society, signee is limited to the cases in which L. E. 9 Eq. at p. 128. the hanlcruptey or insoheney of the {g) See Verlue v. Jewell, i Camp, consignee has taken place." 31; Newsom v. nornton,, 6 East, 17 [c) See The Tigress, 32 L. J. Adm. (in both of which oases the stoppage 97. in transitu -was effected before the {d) In former editions it was said bankruptcy of the vendee), that this right " was first allowed by (h) Wilmshurst v. Bowker, 7 M. & equity," alluding to Wiseman v. Van- G-. 882 (Exch. Ch.) ; and see Key v. deput (1690), 2 Vem. 203; Snee v. Cotesuorth, 7 Exch. 695, and S. v. Frescott, 1 Atk. 246, and D'Aqmla v. Saddlers' Qo., 10 H. L. Cas. 404, at JUmbert, 2 Eden, 75 ; Ambl. 399. p. 426, per Willcs, J. STOPPAGE IN TRANSITU. 685 Whether its effect be or be not to dissolve the contract of Right to stop sale between the consignor and consignee of the goods stopped, -^iiat. has been much discussed («'). Lord Kenyan was of opinion that it did not rescind the sale, but was an " equitable (j) lien, adopted by the law for the purposes of substantial justice" {k) ; an opinion which certainly consists best with the decisions which have taken place, that payment of part of the price (unless the contract be apportionable (/)), or acceptance of a bill for the whole of it, by the vendee, will not defeat the vendor's right to stop in transitu, if the vendee become insolvent before the remainder of the price has been liquidated, or the bill taken up («)), and that the vendor is not, when he stops in transitu, obliged to tender back a bill he has received on account of the price (w). Mr. Justice Bayley, in Bloxam v. Saunders (p), gave a descrip- (i) In Stephens v. JFilkinaon, 2 B. & Ad. 320, In Edwards v. Brewer, 2 M. & W. 376, and Gibson v. Carruthers, 8 M. & W. 321, the Coui't adverted to it as undetermined. And see Wilms- hurst V. Bowker, 5 Bing. N. C. 541. In Bell's Comm. it is treated as a re- scission (Srd ed. I. 2, p. 2, o. 1). (J) Schotsmans v. Lancashire and Yorkshire Rail. Co., L. K. 2 Ch. 332. [k) Hudson V. Lay, 7 T. B. at p. 445. (T) See Merchant Banking Co. v. Fhcenix Bessemer Steel Co., 5 Ch. D. at p. 220. (w) Hodgson v. Log, 7 T. E. 440 ; Feise V. Wray, 3 East, 93. Compaxe Cowa^eey. Thompson, 5 Moo. P. C. 165. (n) Edwards v. Brewer, 2 M. & "W. 376 ; Jenkyns v. Vsbome, 7 M. & Gr. 678. (o) 4B. &C. atp.948. "Thehuyer's right," said his Lordship, "in respect of the price is not a mere lien, which he will forfeit if he parts with the possession, but grows out of his ori- ginal ownership and dominion. If the seller has despatched the goods to the buyer, and insolvency occurs, he has a right, in virtue of his original owner- ship, to stop them in transitu. — Why P Because the property is vested in the z z buyer, so as to subject him to the risk of any accident, but he has not an inde- feasible right to the possession ; and his insolvency, without payment of the price, defeats that right. And if this be the case after he has despatched the goods, and whilst they are in transitu, h, fortiori is it when he has never parted with the goods, and when no transitus has begun? The buyer, or those who stand in his place, may still obtain the right of possession, if they will pay or tender the price ; or they may still act upon their right of property, if anything unwarrantable is done to that right. If, for instance, the original vendor sell when he ought not, they may bring a special action against him for the injury they sustain by such wrongful sale, and recover damages to the extent of that injury ; but they can maintain no action in which the right of property and right oi possession are both requisite, unless they have both those rights." See also Valpy v. Oakeley, 16 Q. B. 941 ; Wihnshiirst v. Bowker, 5 Bing. N. 0. 541. See, also, Milgate v. Kehble, 3 M. & Gr. 100, where it was held that the vendee could not maintain trover against the vendor for taking the goods 2 686 MERCANTILE REMEDIES. Bight to stop tion of the nature of a vendor's lien for his price, wide enough mtransitu— ^ include the right of stoppage in transitu, and seemingly opposed to the idea that the exercise of that right operates as a rescission of the contract of sale. In Edivards v. Brewer (p), Parke, B., says, " the effect is the same as if the consignor had not delivered them on board ship. Then, if so, he has a right to retain them till payment of the whole price." There is now a general consensus of opinion that the effect of stoppage in transitu is not to rescind the contract {q). In Vertue v. JetveU{r), Lord Ellenborough held that although the vendee may have become insolvent, still if the state of his accounts with the vendor be such that the vendor is, upon the whole, indebted to the vendee, he cannot stop in transitu goods of less value consigned to the vendee, on account of the balance ; for the delivery of them to the vendee's representatives can, in that case, be productive of no injustice; and if the balance against him be occasioned by the vendee being under accept- ances for his accommodation, he cannot stop in transitu until the bills are paid. This view was confirmed by the Court in banc. But it has often been questioned. away, the plaintifl not being in actual struotive possesBion of them, the right possession, and the price, which was to to stop prevails." In Fhelps, Stokes be paid before removal, unpaid. And ^ Co. v. Comber, 29 Ch. D. 813, at see Lord v. Friee, L. E. 9 Ex. 54 ; p. 821, Cotton, L. J., thus describes the Johnson v. Stear, 15 C. B. N. S. 330; right: " It is a retaking by the unpaid Salliday v. Molgate, L. R. 3 Ex. 299. vendor, either on the cancellation of the. [p) TJbi supra. contract, as some people say, or, as I [q) See per Brett, L. J., in Kendal should rather say, on resuming poases- T. Marshall, Stevens ^ Co., 11 Q. B. D. sion for the purpose of insisting on his 356, at p. 364 ; where he observes, lien for the price, at any time while the "where the goods are in the course of goods are in the hands of the carrier, ^." transit from the vendor to the vendee, Benjamin on Sale, 4th ed. 898. although the property has passed to (r) 4 Oamp. 31. vendee, and although he has the con- STOPPAGE IX TRANSITT?. 687 Section II. — WTio possesses it. Lord Ellmhormigh stated, in SiJ^ken v. Wray (s), that the person Who who stopped goods in transitu must not be a mere surety for -^ their price ; one, for instance, who had, at the request of the vendee, accepted bills drawn by the vendor for their purchase-money. But since the passing of the Mercantile Law Amendment Act (19 & 20 Yict. c. 97, s. 5) this is not necessarily the case ; a surety who has paid may exercise the right. In The Imperial Bank v. The London and St. Katharine's Dock Co. {t), a broker who pur- chased for an undisclosed principal, and who was liable to pay the payee in the event of default, was held entitled to exercise the right ; and a person abroad, who, in pursuance of orders sent him by a British merchant, purchases goods, on his own credit, of others whose names are unknown to the merchant, and charges a commission on the price, is a consignor, and is entitled to stop the goods in transitu if the merchants fail while they are on their passage ; for he stands in the light of a vendor, and the British merchant of his vendee (?(). So is a person who consigns goods to be sold on the joint account of himself and the con- signee (v). The right belongs to a buyer who resells his interest in the goods (w). If the stoppage be made by an unauthorized person on behalf of vendor, the act must be ratified before the transit is over («), otherwise it will not be effectual. (») 6 East, 371. See Sweet v. Pym, goods in transitu, and the effect of a 1 East, 4. ratification, see Nieholh v. Le Feuvre, (t) 5 Oh. D. 195. 2 Bing. N. C. 81 ; Whiteheads. Ander- (k) Feise v. Wray, 3 East, 93 ; The son, 9 M. & W. 618 ; Bird v. Brown, Tigress, 32 L. J. Adm. 97. See Ireland i Exch. 786 ; Hutehings v. Ntmes, 1 v. Livingston, L. R. 5 H. L. 395 ; Fx Moore, P. C. N. S. 243. parte Banner, 2 Ch. D. 278 ; Fx parte (w) Jenhjns v. Vstome, 7 M. & Gr. Cooper, 11 Ch. D. 68. 678. (v) Xetvsom v. Thornton, 6 East, 17. [x] Bird v. Brown, i Ex. 786. As to the authority of an agent to stop MERCANTILE REMEDIES. Section III. — Sow long it continues. How long it The period during which the right to stop the goods con- — '■ tihues is, as we have seen, co-extensive with that of their transit from the yendor to the purchaser. Henoe, in cases where the propriety of a resumption of this sort is questioned, the poiat disputed generally is, whether, at the time of seizure by the vendor, the transit of the goods had or had not determined. Such cases always mainly depend upon their own pecuhar circumstances, hut the general rule to be collected from all the decisions is, that goods are to be deemed in transitu till they get into the hands of the purchaser, his servants or agents. Most of the oases fall into the following groups : — (a) Where the goods, after sale, remain in the possession of the t^ewf^or.-— These, which are scarcely cases of stoppage in transitu, have already been discussed with reference to the Statute of Frauds; the purchaser not having acquired the actual posses- sion, the vendor's lien exists {y). (b) Where the goods are in the possession of a earrier, or rail- way company, or a general ship not belonging to or cliartered hy the vendee. — Goods are to be deemed in transitu so long as they remain in the possession of carriers as such, whether by water or land (s), even though such carrier may have been appointed by the consignee himself (a) ; and until they come into the actual [y) Surry v. Mangles, 1 Camp. 452 ; 6 Bing. N. C. 508; Berndtson\. Strang, Miles V. Gorton, 2 C. & M. 504; L. B. 4 Eq. 481 ; 3 Ch. 688 ; -8orfy«-T. Townley v. Crump, 1 A. & E. 58; The Comptoir (V Hscompte de Paris,!!. 'K. Lackington v. Atkerton, 8 Scott, N. S. 2 P. C. 393 ; Jic parte Bosevear China 38; Grice v. Siehardson, 3 App. Gas. Clay Co., 11 Ch. D. 560; JSx parte 319. Barrow, 6 Ch. D. 783 ; Stokes v. la (z) Mills Y. Ball, 2 B. & P. 457. Siviere, cited in Bothlingk v. Inglis, Per James, L. J., in Ex parte Eosevcar 3 East, 381 ; Smith v. Goss, 1 Camp. China Clay Co., 11 Ch. D. at p. 568. 282 ; Coates v. Sailton, 6 B. & C. 422 ; («) Solst V. Paivnal, 1 Esp. 240 ; Nicholls v. Ze Femre, 2 Bing. N. C. Northey v. Meld, 2 Esp. 613 ; Sodgson 81 ; Turner v. Trustees of Liverpool f. Lay, it:. "R-iiQ; Jackson -v. Nichol, Dock Co., 6 Exch. 593; James v. (STOPPAGE IN TRANSITU. 689 or constructive possession of the consignee, who may require How long it the goods to be delivered to him at any stage of the journey (6). '- (o) Where tJie goods are in any place of deposit connected with the transmmion and delivery of them. — Such goods are still in transit. Thus, if they be landed at a seaport town, and there deposited with a wharfinger appointed by the consignee to forward them by land to his own residence, while in the hands of the wharfinger they are subject to the consignor's right of stoppage (f). "Nothing is clearer than that it is not delivery to any agent which terminates the transit" {d). But the trumitiis is completely at an end when the goods arrive at an agent's, who is to keep them till he receives the further orders of the vendee (e) . The warehouse of the intermediary may really be the warehouse of the vendee ; a canier or whar- finger may hold the goods for him. If a consignee be in the habit, with the consent of the owner, of using the ware- house of a carrier, packer, wharfinger, or other person as his own, for instance, by making it the repository of his goods, and disposing of them there, the transit will be considered as at an end when they have arrived at such warehouse (/) . Where the right of stoppage in trandtu is to be defeated by a constructive possession through the medium of the carrier. Grijiii, 2 M. & W. 623 ; Bolton v. The D. at pp. 619, 620. The right to stop L. ^- Y. Mail, Co., L. K. 1 C. P. 431 ; will not be revived by a re-delivery Hdwards v. Brewer, 2 M. & W. 376. to the vendor for a special purpose, See f^hitehead \. Anderson, 9 M. & c. ^. , to repack : Valpyy. Gibson, iCR. W. 518 ; NichohoH v. Boicor, 1 B. & E. 837. 172. (/) Richardson v. Goss, 3 B. & P. (4) Zondon and North Western Sail. H9 ; Scott v. Pettit, 3 B. & P. 469; Co. V. Bartktt, TH.. klS. 400; Fraser Foster v. Frampton, 6 B. & C. 107; V. Witt, L. R. 7 Eq. 64. Allan v. Gripper, 2 C. & J. 218 ; Went- (c) Mills V. Ball, 2 B. & P. 457 ; Fx worth v. Outhuaite, 10 M. & "W. 436 ; parte Barrow, 6 Ch. D. 787 ; Kendal v. Dodson v. Wentworth, 4 M. & G. 1080 ; Marshall, 11 Q. B. D. 366, 365. Sowe v. Fickford, 8 Taunt. 83. See (d) Fry, L. J., in Bethellw. Clarke, James y. Griffin, 2 M. & W. 623, and 20 Q. B. D. at p. 619. the judgment in Whitehead v. Andcr- (e) Per Lord Fllenborough, in Dixon son, 9 M. & W. 518; Nicholson v. ■V.Baldwin, 5 East, 176; andPai-fe, B., Bower, 1 E. & E. 172; Smith v. Eud- in Wentworth v. Outhwaiie, 10 M. & W. son, 6 B. & S. 431 ; and compare Belhell at p. 450 ; Bethell v. Clarke, 20 Q. B. v. Clarke, supra. 690 MEKCANTILE KEMEDIES. How long it acts of dominion exercised by the vendee over the goods while '. in the carrier's hands (as, for instance, hy takiag samples), ■will not have the effect of creating such a constructive posses- sion, unless they he accompanied hy such circumstances as denote that the carrier was intended to keep, and assented to keep, the goods in the nature of an agent for custody (g). (d) Where goods are put on board the vendee's ship. — This will be a delivery to the vendee, unless the vendor stipulates by the form of hills of lading or otherwise to the contrary, so as to show that the master is an agent for carriage, and not an agent to receive possession for the vendee (A), e.g., where goods are put on board a vessel chartered by vendee. If the charter be of the ordinary character, not operating as a demise of the ship, and not giving the charterers for the time being complete control of the ship and crew, this will not take away the vendor's right of stoppage (?■). (e) Agreement as to destination. — The vendor and vendee may agree as to the transit, as in Ex parte Watson, In re Love (j) ; and in this case the transit will continue until the goods reach their agreed destination. The following observations of Boicen, L. J., in Kendal v. Marshall, Stevens §■ Co. (k), explain the law where no desti- nation is named : — " In Ex parte Watson {I), it was held that the right to stop in tran- situ continued, because, wherever it is part of the bargain between the vendor and the vendee that the transit shall last up to a certain time, the transit continues until that time has arrived (m). But when goods are bought to be afterwards despatched as the vendee shall direct, and it is not part of the bargain that the goods shall be sent ((?) Whitehead v. Anderson, 9 M. & 66 L. T. 577. ■W. 518 ; Coventry v. Gladstone, L. R. (i) Berndtson v. Strang, L. R. 3 Ch. 6 Eq. 44; London and North Western 588; JSx parte Sosevear China Clay Co., Rail. Co. V. Bartlett, 7 H. & N. 400. 11 Ch. D. 660. See Merchant Banking Co. v. Bhcenix {J) 5Ch.D. 35; Hx parte Miles, Be Bessemer Steel Co., 5 Ch. D. 205. Isaacs, 16 Q. B. D. 39. See, however, [h) Rodger v. Comptoir d'Escompte, Whitehead \. Anderson, 9 M. &W. 5\S. li. E. 2 P. C. 393; Schotsmans v. (i) 11 Q. B. D. 356, at p. 369. Lancashire and Yorkshire Rail. Co., (1) 5 Ch. D. 35. L, R. 2 Ch. 332; Ex parte Francis, {m) SeeBethelly. Clarke, supra. STOPPAGE IN TKAXSITU. 691 to any particular place, in that case the transit only ends when the How long it goods reach the place ultimately named by the vendee as their co°fanueB. destination. In Coates v. Railton{n), several cases were cited by Bayley, J., in the course of Ms judgment, and the principle to be deduced from them is that, where goods are sold to be sent to a particular destination, the transitus is not at an end untU the goods have reached the place named by the vendee to the vendor as their destination. One exception, at least, is to be found to the principle here laid down : the vendee can always anticipate the place of destination, if he can succeed in getting the goods out of the hands of the carrier. In that case the transit is at an end, whatever may have been said as to the place of destination, and this shows that the real test is not what is said, but what is done. But it has never been decided that where the goods have reached the place of destination named to the vendor by the vendee, to be there held by an agent to the vendee at the vendee's disposal, the right to stop continues" (o). Though goods may not have reached their iiltimate desti- nation, yet if they "have so far gotten to the end of their journey that they [wait] for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, and that without such orders they would continue stationary " (jb), the transitus is at an end. («) 6 B. & C. 422. for Shanghai, addressed to ship desig- (o) See Bethell v. Clark, 20 Q. B. D. nated by L. ; the packer, advising L. 615. See also the remarks of JBrett, of despatch of goods, said they were M. K., in Ex parte Miles, 15 Q. B. D. "at L.'s disposal," and the railway at p. 43. company, advising L. of the arrival of [p) Per Lord Ellenborough, C. J., in the goods in London, told him they Dixon v. Baldwin, 5 East, at p. 186 ; remained at his order, and were held cited by Lord Esher, M. B.., in Ex by the railway company as warehouse- parte Miles, 15 Q. B. D. at p. 44, and men, at his risk, but said " wiU be sent Bethell v. Clark, 20 Q. B. D. at p. 619. to ship." Held, by Court of Appeal, The following is an analysis of that the transit was from Bradford to recent oases on this subject, in order of Shanghai. See also Rodger v. Comptoir date : — d'Escompte de Paris, L. E. 2 P. 0. 393. Ex parte Watson, In re Love, 5 Oh. Ex parte Sosevear Clay Co., In re D. 35 (1877).-Goods sold by W., a Cock, 11 Ch. D. 560 (1879).— Sale by Bradfordmanufacturer,toL.,aLondon Eosevear Co. to C, a merchant at merchant ; L. to ship the goods to R., Roche, near St. Austell, of 80 to 100 at Shanghai, for sale on L.'a account ; tons of clay at lbs. per ton, f. o. b. W. to have lien on bills of lading and Fowey ; C. agreed verbally to charter goods on transit outwards ; goods a ship to call at Fowey, to convey the packed by W.'s packer, who forwarded clay to Glasgow to his agent there for them by rail to London in bales marked sale; clay delivered by Eosevear Co. 693 MERCANTILE REMEDIES. How long it continues. It has teen decided that, where part of the goods sold lay one entire contract is taken possession of hy the vendee, without any intention on the vendor's part of retaining the rest, hut as a step towards and in progress of the delivery of the whole, that is to be deemed a taking possession of the whole (q) ; though it is otherwise if there were such an intention (r). It has been said thai, pr una facie, a delivery of part imports an intention to deliver the whole (,s). But this is open to grave doubt (t). on board ship at Fowey, and invoice and bill of exchange for acceptance sent to C. The Rosevear Co. knew nothing as to the destination of the ship. SeU, by Court of Appeal (re- versing Bacon, C. J.), that vendor's right to stop existed after ship had left Fowey for Glasgoiv. "The mere fact that the port of destination was left uncertain, or was changed after the contract of sale, can make no difference." Per James, L. J., at p. 668. See, also, JBerndtson v. Strang, L. E. 3 Ch. 588. Kemp V. Falk, 7 App. Cas. 573 (1882). — ^Falk, a Liverpool merchant, sold to Kiell, a London merchant, a cargo of salt at 13s. 5d. per ton, f. o. b. The salt was intended for Calcutta, &d was shipped by Falk on board a vessel, chartered by Kiell, for the voyage to Calcutta. Thereupon Falk forwarded invoices and bills of lading to Kiell. The salt was consigned to W. at Calcutta. Kiell obtained from a bank an advance upon the bill of lading, and the salt was sold by W. "to arrive." Meld, by the House of Lords, affirming Court of Appeal, that the transit was not at an end until the arrival of the ship at Calcutta. Kendal v. Marshall, Stevens ^ Co., 11 Q. B. D. 356 (1883.)— L. bought goods of W., a merchant at Bolton, nothing being said as to the place of delivery. L. arranged with M. & Co., shipping agents and carriers at Garston in Lancashire, that the goods should be sent to them at Grarston and conveyed by them to Rouen, at a through rate from Bolton to Rouen. L. then in- structed W. to send the goods to M. & Co. W. sent the goods by railway to M. & Co. The railway company gave notice to M. & Co. of the arrival of the goods, and stated that they would hold the goods as warehousemen. Held by Court of Appeal (reversing the decision of Mathew, J.), that the tran- sit was at an end when the goods came into the possession of M. & Co, Bethell v. Clarh, 20 Q. B. D. 615 (1888). — Goods were purchased by London merchants from manufac- turers at Wolverhampton, the pur- chasers directed the vendors to consign the goods "to the ' Darling Downs,' to Melbourne, loading in the East India Docks," the vendors delivered the goods to carriers to be forwarded to the ship. Meld, by Court of Appeal (affirming Mathew, J., and Cave, J.) that the transit was not at an end till the goods reached Melbourne. [q) Sammond v. Anderson, IB. & P. N. R. 69. And see Sluley v. Seyward, . 2 H. Bl. 504, and the remarks on these oases in Ex parte Cooper, 11 Ch. D. 68. [r) Bunney v. Poyntz, 4 B. & Ad. 668 ; Dixon v. Tates, 6 B. & Ad. 313 ; Tanner v. Scovell, 14 M. & W. 28. («) Per Taunton, J., Belts v. Gib- bins, 2 Ad. & E. 67, but quaere. And in Tarnier v. Scovell, 14 M. & W. 28, the Court of Exchequer dissented from the dictum of Taunton, J., and ap- proved of this qusere. {t) See Ex parte Cooper, 11 Ch. D. 68. STOPPAGE IN TRANSITU. 693 Section IV. — Mow defeated. It has been already observed, that the delivery of goods to How defeated , a carrier named by the vendee, though a delivery to the vendee himself for many purposes, is not such a one as to put an end to the right to stop them in transitu ; and it has been thought that the vendee, when a particular place of delivery has been ap- pointed, cannot anticipate the regular determination of the transit by going to meet the goods upon their journey (h). This, however, as a general rule, has been much questioned and seems overruled («). "If," said Baron Parfe, in Whitehead v. Anderson {y), "the vendee take them out of the possession of the carrier into his own before their arrival, with or without the consent of the carrier, there seems to be no doubt that the transit would be at an end." But at all events, whatever may be the effect of the receipt of goods by the vendee before the regular determination of the transit, it seems clear that the vendor's right to stop them cannot be taken away by the vendee making a demand of them, while on their journey, with which the carrier, whether rightly or wrongly, refuses to comply (s). At the termination of the journey, however, if the vendee demand the goods, the carrier cannot by wrongfully detaining them, pro- long the right of the vendor to stop them (a), The vendor's right also will not be defeated by the exercise of any claim against the consignee, such, for instance, as process of foreign attachment at the suit of a creditor of the vendee {b), or the carrier's claim of a general lien for the balance due to him by the vendee (c), or (generally speaking) by his vendee's selling («) Eolst V. Fownall, 1 Esp. 240, [y) 9 M. & W. at p. 634. Lord Kenyan. But see the observa- (z) Jackson v. Nichol, 5 Bing. N. C. tions of Lord Alvanley in Mills v. Hall, SOS ; Whitehead v. Anderson, 9 M. & 2 B. & P. 451, and those of Chambre, W. 618 ; Coventry v. Gladstone, L. R. J., in Oppenheim v. £msel, 3 B. & P. 6 Eq. 44. 54. See, too, Foster v. Frampton, 6 («) Sird v. Brown, 4 Exch. 786. B. & 0. 107. (*) Smith T. Oosa, 1 Camp. 282. [x) See Kendal-^. Marshall, Stevens ^ [e) Butler v. Woolcot, 2 B. & P. N. Co., L. E. 11 Q. B.D. 356, at pp. 366, K. 64 ; Nieholls v. Le Feuvre, 2 Bing. 369. N. C. 81. 694 MERCANTILE REMEDIES. How defeated, them again to a third party, the ordinary rule of law being that the second vendee of a chattel cannot stand in a better situation than his vendor (d). Purchasers on credit of a cargo of salt consigned it abroad to W. M. & Co. They obtained upon the security of the biUs of lading an advance from a bank. The consignees sold the goods " to arrive " to sub- purchasers, to "whom they were delivered. On the purchasers going into liquidation, the seller gave notice to the master, after the sub-sale but before delivery and payment of the freight, to stop the goods in transitu. It was contended that the sub-sale displaced the right of stoppage. "But," said Lord Selhorne, " the original purchaser can transfer no greater or better right than he has ; and the right which he has is a right subject to a stoppage in transitu, in all oases in which the right of stoppage in transitu remains in favour of the original seller of the goods" (e). We have, however, seen that the negotiation of a bill of lading for valuable consideration (/) wlU. defeat the vendor's right to stop in transitu (g) ; and the Factors Act, 1889, as we have also seen {h), confers similar efficacy on the transfer of documents of title (V It must, however, be observed that the negotiation of a bill of lading or other instrument by way of pledge, defeats only the legal right to stop in transitu ; for, in equity, the vendor may, ^ by giving notice to the pledgee, resume his former interest in the goods, subject to the pledgee's claim, and wiU be entitled to the residue of their proceeds after the pledgee's demand has been satisfied out of them, or to the goods themselves, if it be satisfied aliunde, notwithstanding the pledgee may have other demands against the consignee (A). The indorsement, therefore, of a bni of lading as a pledge for a specific sum, though it (d) Dixon V. Tates, 5 B. & Ad. 313. (A) Ante, B. I. Chap. 4, sect. 4, [e) Kemp t. Falk, 7 App. Cas. 573, pp. 145 et seq. 577 ; but see Ex parte Golding, Davis % (t) See Appendix. Co., 13 Oh. D. 628. (i) In re Wcstzinthus, 5 B. & Ad. (/) Modger v. The Comptoir cCEs- 817 ; Kemp v. Falk, 7 App. Cas. 573. compte de Paris, L. E. 2 V. C. 393. And see Semdtson v. Strang, L. R. 3 (g) See ante, p. 346 ; Gurney v. Ch. 688 ; Sodger v. The Comptoir Behrend, 3 E. & B. 622 ; The Marie d'Eseompte de Paris, L. E. 2 P. C. 393. Joseph, L. R. 1 P. C. 219. STOPPAGE IN TEANSITU. 695 transfers the property in the goods, will only bar the right of Howdefeatecl. the consignor to stop in transitu to that extent. " It [the right of stoppage] is a qualified right in the circumstances which I have mentioned; because it cannot be asserted as against the holder of the bill of lading without paying him ofE ; but the instant his claim is discharged it is exactly the same right as if there had been no security as against the original purchaser, and as against, in my opinion, everyone claiming under bim " (/). The vendor may recover from the indorsee the difference between the sum for which the pledge was made and the sum realised by their sale, although the indorsee has other claims upon the consignee {m). Section V. — How exercised. A consignor who is desirous, and who has a right, to stop his How- goods in transitu, is not obliged to make an actual seizure of 1- them while upon their road ; it is suflBcient to give notice («) to the carrier or other person in whose hands they are, on the delivery of which notice it becomes that person's duty to retain the goods ; so that if he afterwards, by mistake, deliver them to the vendee, the vendor may bring trover for them, even against the vendee's assignees, if he himself have become bankrupt (o) ; and the carrier who, after the receipt of such a notice, delivers the goods to the vendee, is guilty of a tortious act, for which he may, of course, be held responsible {p). This right to stop extends, not only to countermand delivery to the vendee, but to require re-delivery to the vendor, who may, therefore, at once demand the goods {q). The notice must, however, that it may {t) SeHome, L. C, in Kemp v. Falk, (o) Zitt v. Cowky, 7 Taunt. 169. 7 App. Oas. at p. 577. [p) Stokes v. La Biviere (Lord Mans- {m) Spalding v. Suding, 6 Beav. 376 ; field), cited in Sothlingk v. Inglia, 3 Coventry v. Gladstone, L. E. 6 Eq. U ; East, 381 ; Hunter v. Beak (Lord Bx parte Oolding, Davis ^ Co., 13 Ch. D. Mansfield), cited 3 T. E. 466 ; Sehots- 628. mans v. The Lancashire and Yorkshire (») As to what notice will suffice, Raiheay Co. L. E. 1 Eq. 349 ; 2 Ch. see Phelps Stokes v. Comber, 29 Ch. D. 332. 813. (?) The Tigress, 32 L. J. Adm. 97. 696 MERCANTILE REMEDIES. How be effectual, he given to the person who has the immediate exerciBed. gyg^Q^y of the goods : if given to a principal whose servant has such custody, it must be given at such a time, and under such circumstances, that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the delivery to the consignee (r). It has been stated by Lord Blackburn, that it is the duty of the shipowner who receives such a notice to forward it to the master («) : " I had always myself understood that the law was, that when you became aware that a man, to whom you had sold goods which had been shipped, had become insolvent, your best way, or at least a good way, of stopping them in transitu, was to give notice to the ship- owner in order that he might send it on. He knew where his master was likely to be, and he might send it on ; and I have always been under the belief that although such a notice, if sent, cast upon the shipowner who received it an obligation to send it on with reasonable diligence, yet if, though he used reasonable diligence, somehow or other the goods were delivered before it reached, he would not be responsible. I have always thought that a stoppage, if effected thus, was a sufficient stop- page in transitti." (r) Whitehead v. Anderson, 9 M. & (s) Kemp v. Falk, 7 App. Cas. p. W. 618. 685. ( 697 ) OHAPTEE II. LIEN. Sect. 1. Lien — what. 2. Mow acquired. 3. Sow lost. 4. Maritime Liens. Section I. — Lien — n-ha/. A possessory lien (a) is a right to retain property until a debt Lien— what, due to the person retaining has been satisfied (&). It is not incompatible with a right on the part of the person claiming it to sue for the same debt ; but he is allowed to do so, retaining his lien as a collateral security (c). There are two species of liens known to the common law, viz.. Particular and General. Particular liens are where persons claim to retain the goods in ' respect of which the debt arises; and these are favoured by the law. General liens are claimed in respect of a general balance of account ; and these are to be taken strictly (d). Where a Hen exists, it is available, although the debt for which the party retaining claims to hold the goods be of more than six years' («) Under the name of lien are in- innkeeper set up a claim of lien on his eluded rights really diverse. Lien guest's person, which was, however, properly means, as the ahove defini- negatived by the Court without hesi- tion states, a right to retain until the tation, as was his claim of a right to claim be satisfied. But the banker's take the guest's coat from his person general lien gives him a right to realise and detain it. the security. His rights resemble those (c) Sughes v. Lenny, 5 M. & W. of a pawnee: Donald-^. Suckling, 'L.'R,. 183. 1 Q. B. at p, 604. [d) Per Heath, J. in Soughton v. (A) Hammond v. Barclay, 2 East, Matthews, 3 B. & P. at p. 494 ; Bock at p. 235; 2 Eose, 357. In Sun- v. Gorrusen, 2 De Gr. P. & J. 434, holj V. Alforit, 3 M. & W. 248, an at p. 443. 698 MEECANTILB REMEDIES. Lien— -what, standing, and the remedy by action at law barred in consequence by the Statute of Limitations (e). A creditor who elects to exercise his right of lien cannot exercise it as security for the expense of keeping or taking care of the property (/). The goods, while they continue in the possession of a person entitled to a lien, cannot be seized in execution for the real owner's debt {g). Section II. — How acquired. How The doctrine of lien originated in certain principles of the '- — common law, by which a party who was compelled to receive the goods of another was also entitled to retain them for his indem- nity. Thus carriers {h) and innkeepers («) had, by the common law, a lien on the goods entrusted to their charge. The rescuer of goods from perils of the sea has, as we have already remarked, on grounds of public policy, a lien at common law for salvage (/) ; and it is a principle, that, where an individual has bestowed labour and skill in the alteration and improvement of the pro- perties of the subject delivered to him, he has a lien on it for his charge. Thus a miller and a shipwright (A) have each a lien ; so has a trainer, for the expense of keeping and training a race-horse (/), for he has, by his instruction, verought an essential {e) Spears y. Sartley, 3 Esp. 81 ; 417. As to his power to sell the Higginsv. Scott, 2 B. & Ad. 413; Re goods, see infra, p. 706,. n. («). Broomhead, 16 L. J. Q. B. 355. (j) Singston v. Wendt, 1 Q. B. D. (/) Somes T. British Empire Shipping 367. Co., 8 H. L. Ca. 338. (A) Ex parte Ockendm, 1 Atk. 235 ; [g) legg v. Evans, 6 M. & W. 36. Franklin v. Sosicr, 4 B. & Aid. 341 ; (A) Skinner v. Upshaw, Ld. Raym. and Chase t. Westmore, 6 M. & S. 180. 752. As to lieu for freight, see ante. See Ex parte Bland, 2 Rose, 91 ; British pp. 372 et seq. Empire Shipping Co. v. Somes, E. B. & (i) In the case of an innkeeper, the E. 353. lien is confined to the goods entrusted (1) Sevan v. Waters, M. & M. 236 ; to his charge by his gmst : Smith v. unless the usual right of the owner to JDearlove, 6 C. B. 132 ; but they may run him when he pleases be inconsis' belong to a, third person : Threfall v. tent with a continuing possession of Borwick, L. R. 7 Q". B. 711 ; 10 Q. B. the trainer. See per Farke, B., in 210 ; Turrill v. Crawley, 13 Q. B. 197 ; Jackson v. Cummins, 5 M. & "W. at p. Sneady. Watkins, 1 C. B. N. S. 267 ; 350, 351 ; Forth v. Simpson, 13 Q. B. Allen V. Smith, 12 C. B. N. S. 638. 680. But see Broaduioody. Granara, 10 Exoh. i.iEX. 699 improvement in the animal's character and capahilities, unless ^"'^ , ..... aociuired. hy usage or contract the owner has a right inconsistent with it, as, for instance, of sending the horse to run for any race he pleases, and selecting the jockey to ride him (m). And if the owner of a stallion receive a mare for the purpose of being covered, he has a lien on her for his charge, for she will he rendered more valuable by proving in foal (n). So, too, an auctioneer and a factor have liens (though not general) on goods sold by them (o). But here the rule appears to stop, and not to include cases wherein expense has been bestowed upon the object claimed to be retained without producing any altera- tion in it (^). Thus it has been decided that a livery-stable keeper has no lien for the keep of a horse (q) ; nor an agister of a horse or cow (r) for its agistment. Such is the description of a lien at common law. Whenever a lien of any other kind is sought to be established, the claim to it is not' to be deduced from principles of common law, but founded upon the agreement of the parties, either expressed or to be inferred from usage or course of business (s), and will fail if some such contract be not shown to have existed (t). By special agreement. — With respect to liens by express agree- ment, little need be said; the question, whether one has or has not been created, depends upon the special terms of each individual contract. Where the intention of the parties to create one is plain, there can be no doubt of their legal right to (»•) Forth V. Simpson, 13 Q. B. 680. C. & M. 304. (») Scarfs V. Morgan, 4 M. & W. (r) Jackson v. Cummins, 5 M. & W. 270. 342. An auctioneer has a lien on the (o) Webb V. Smell, 30 Ch. D. 192; goods which he sells: Webb v. Smell, In re Eermann Loog, Limited, W. N. 30 Ch. D. 192. (1887), 180, 191. {«) See Naylor t. Mangles, 1 Esp. (p) Stone V. Lingwood, 1 Str. 651 ; 109 ; Kirkman v. Shawcross, 6 T. E. and see 8 C. & P. 6 ; but see 1 H. 14. The lien of an unpaid vendor for Bl. 85. the price subsists till delivery to the (?) Wallace v. Woodgate-, E. & M. vendee : Cooper v. Bill, 3 H. & C. 722. 193 ; Judson v. Etheridge, 1 C. & M. {t) Pratt v. Vimrd, 5 B. & Ad. 808. 743 ; Orchard v. JRackstraw, 9 C. B. See also Ogle v. Stort/, 4 B. & Ad. 735 ; 698. But see Taylor v. James, 2 Eoll. and qusere, if that case be law ; see Abr. 92, M. pi. 3; Lenton v. Cook, B. Harrington v. Price, 3 B. & Ad. 170; N. P. 45. See Sanderson v. Bell, 2 Cumpston v. Eaigh, 2 Bing. N. C. 449. VOL. ir. — s. 3 A 700 MERCANTILE REMEDIES. How eaary it into efPeot (ii), and, as they can deal as &.ej please wiiih acquired, ^j^^.^ ^^^ property, they may, of course, frame their contract so as to exclude the right of lien, as well as to create or to extend it : and this may be done, either by direct words, or the inser- tion of some stipulation incompatible with the existence of a right of lien (»), or a similar usage or course of trade, consistent with, and incorporated by implication into, the contract (x). Indeed, it once was thought, that, wherever there was an agree- ment for the payment of a fixed sum, the right of lien must he taken to have been abandoned (y). But this doctrine, which seems unreasonable, has been overturned ; and the rule now is, that the mere existence of a special agreement will not, of itself, exclude the right of lien ; but that if any of its terms be inconsistent with such right, it wiU do so (z). Thus, an agree- ment stipulating for payment ia a particular manner and out of a particular fund, might possibly be held inconsistent with the right of lien (a). So would an agreement to deliver goods at a certain time, or whenever demanded {b). Where a customer deposited with his bankers a policy of assurance accompanied by a memorandum to secure over-drafts not exceeding at any one time 4,000/., it was held that the bankers might not retain the policy in respect of over-drafts in excess of the amount (c). Thus, too, it was remarked by Baron Parke, in his judg- («) See Small v. Moates, 9 Bing. the dealings in that relation, the ex- 574 ; Ward v. Bell, 1 C. & M. 848. press stipulation and agreement of the . (») Owenaon t. Morse, 7 T. B.. 64 ; parties for security excludes lieu, and Boardmim v. Sill, 1 Camp. 410, n. ; limits their rights by the extent of the Walker v. Birch, 6 T. E. 2.58 ; Wey- express contract that they have made. ■ v.Boyer, 1 Ves. jun. 416. See Expressum faoit cessare taciturn. If a ZucasY.Nbckells, losing. \ 57 ; Craw- consignee takes an express security, it «Aay V. Smnfray, 4 B. & Aid. 60. excludes general lien." But qnsere, (») Raiit V. Mitchell, 4 Camp. 146. whether these words are not too wide. (t^) Brenan v. Currint, Say. 224 ; (z) Chase v. Sarristm, 6 M. & S. B. N. P. 45; Collins v. Onghy, there 180; Sutton v. Bragg, 7 Taunt. 15; cited. In Chamhers v. Davidson, L. E. Fisher v. Smith, 4 App. Cas. 1. 1 P. C. 296, Lord Westbury says : (a) See Pinnoch v. Sarrison, 3 M. & ' ' But lien is not the result of an "W. 532. • express contract ; it is given hy impli- (i) Lord Selbome, in Fisher v. Smith, cation of law. If, therefore, a mercau- 4 App. Cas. at p. 12 ; and CrawshAy tUe relation, which might involve a v. Somfray, 4 B. & Ad. 50. lien, is created by a written contract, (c) In re Bowes, 33 Ch. D. 586. and security given for the result of J,1E\. 701 meat lu Jackson v. Cummins (d), that, even if a lien oould How , p ' I L acquired, have been claimed at common law m respSct of agistment generally, it would be excluded in a case of agistment of milch cows, by a necessary implication arising from the nature of the subject-matter, since the owner must have possession of them during the time of milking, which establishes that it was not intended the agister should have the entire control. His Lord- ship observed that a similar implication would arise in the case of a livery-stable keeper, since it must be his intention that the owner of the horse should take him out ; and that, even in such a case as Sevan v. Water n {dd), there might be a distinction, as it has since been held there is (e), between the situation of the trainer of a horse for ordinary purposes and the trainer of a race-horse, which, according to usage, may be taken away to run for various plates during his training. By Usage or Courxe of Bimiuess. — As to liens resulting from usage, these depend upon implied, as those last mentioned upon express, contract (/). The usage whence such agreement may be implied is either the common usage of trade, or that of the parties themselves in their previous dealings with each other {g). Of this description are most general liens, none of which existed at common law, but all depend upon the agreement of the parties themselves, either expressed, or to be inferred from their previous dealings, or from the usage of trade and the decisions of the coiu-ts of law thereon {h). It has been settled, that an attorney has a lien for his general balance on papers of his cKents, which come to his hands in the course of his professional employment (»). So a banker, who has advanced money to a id) 5 M. & W. at pp. 350, 351. (A) See leuckhart v. Cooper, 3 Bing. {dd) M. & M. 236. N. C. 99, in whioh defendant claimed (e) Forth v. Simpson, 13 Q. B. 680. a lien by the custom of London, which (/) Sushworth v. Hadfeld, 6 East, was, however, held to be unreason- 619 ; 7 East, 224 ; Kirkman v. Shaw- able: BockY. Gorrmen, 30 L. J. Ch. 39. cross, 6 T. E. 14 ; Brandaoj v. Bamett (i) Stevenson v. Blackelock, 1 M. & 12 01. & r. 787. S. 535. If he be the town-clerk of a {g) Soldemesa v. CoUinson, 7 B. & corporation, or steward of a manor, C. 212 ; Ex parte Oekenden, I Atk. 235; he will have a lien for work done in Kirkman v. Shawcross, 6 T. R. 14 ; In his professional, though not for work re Spotte»,\\ Tr. Rep. Eq. 412. done in his ofllnd, capacity: Itcx v. •i X 2 acquired. 702 MERCANTILE REMEDIES. How customer, has a lien for his general balance upon securities . belonging to such customer, which come into his hands {k), but not on muniments pledged for a specific sum (l), or deposited for a defined purpose {in), or left by mistake or casually in the banker's possession, after his own refusal to advance money on them (w), or negotiable instruments belonging to a third person, left in the banker's hands by his customer (o), or locked-up boxes left for safe custody, though containing securities (^). The Hen belongs to the bankers as such ; it does not therefore extend to articles received not by them as such, but as gratuitous bailees or otherwise (g). Packers (r), calico-printers (s), and wharfingers (t), have liens for their general balance, but not fullers (m), millers (v), or dyers (w). However, notwithstanding these decisions, it does not appear certain that the right of lien may not, even with respect to some of the above trades, be hereafter contested, for the Court has remarked, with respect to wharfingers, that there may be a usage in one place varyiag from that which prevails in another (a-). The party, therefore, claiming to retain goods for a general balance, should, in almost every iastance, be prepared Sanlcey, 5 Ad. & E. 423; Worrall v. mBmndao v. Barnett, 12 C. & F. at p. Johnson, 2 J. & "W. 214; Newington 809; Lecsc v. Martin, L. E. 17 Eq. Local Board r. Eldridge, 12 Ch. D. 224. 349. (»■) Ex parte Deeze, 1 Atk. 228 ; In [Jc) London Chartered Bank of Am- re Witt, 2 Ch. D. 489. tralia v. White, 4 App. Gas. 413 ; (*) Weldon t. Gould, 3 Esp. 268. Brandao v. Barneit, 12 01. & P. 787; (t) Naylor v. Mangles, 1 Esp. 109; In re United Service Co., L. E. 6 Ch. Spears v. Sartly, 3 Esp. 81 ; Dresser 217; Marten v. Soche, 53 L. T. 946; v. Bosanquet, 4 B. & S. 460; Moet v. Boxburghe t. Cox, 17 Ch. D. 520. Pickering, 8 Ch. D. 372. The lien {tj Vanderzee v. Willis, 3 Bro. C. C. of 'srharfingera was said by Lord 21 ; Wolstenholm v. Sheffield Banking Kenyan, in Naylor t. Mangles, to have Co., 54 L. T. N. S. 746. been proved eo often that it was a {m) In re Bowes, 33 Ch. D. 686 ; settled point. Wolstenholm \. Sheffield Banking Co., {«) Rose v. Bart, 8 Taunt. 499 ; 2 54 L. T. 746. Moore, 647. («) Lucas T. Dorrein, 7 Tavint. 278. [v) Ex pa/i-te Ockenden, 1 Atk. 235. (o) Brandao v. Barnett, 12 C. & F. (w) Green v. Farnwi; 4 Burr. 2214 ; 787. Close v. Waterhouse, 6 East, 623, n. ; {p) Leese v. Martin, L. R. 17 Eq. Bennett t. Johnson, 2 Chitty, 455 ; 224 ; Giblin v. McMullm, L. R. 2 but see Savill v. Barehard, 4 Esp. 63. P- C. 317. (x) Solderness v. Collinson, 7 B. & C. (?) See judgment of Lord Campbell 212. MEN. 703 acquired. ■with evidence of the usage applicahle to his own case. It is, How however, established too well for dispute that a factor has a lien upon all goods m his hands, as factor {y), for the balance of his general account (z), whether or not he be authorized to sell in his own name or has any discretion as to the price {a). His lien extends to the price of goods with the possession of which he has parted. Thus, where A. consigned goods to B. a factor, to whom he owed more than their value, and B. sold them to C, to whom he was himself indebted, the factor having become bankrupt, it was decided that he had a lien on the whole price due from C, which must consequently be placed to the credit of his assignees in winding up his account with 0., and that A. was not entitled to any portion of it (6) . But a factor has not a lien for debts .which accrued before his character as such commenced (c) . Policy brokers have also a general lien, and may avail them- selves of it to obtain payment of the balance due to them from their employer, though he be merely an agent, if he did not disclose his principal (d), but not if they know, or there is enough to indicate to them, his representative character (e) . In Mildred v. Maspons (/), the appellants, merchants in Lon- don, acting upon instructions of shipping agents at Havannah, effected poKoies of insurance on a cargo of tobacco for all whom it might concern. The Havannah agents shipped and consigned (y) J5iOT» V. Stansfield, 10 C. B. 398. {«) Mmns v. Henderson, 1 East, 335 ; (z) Houghtomr. Matthews, Z'R. kV. Snook v. Davidson, 2 Camp. 218; 486 ; Kruger v. Wilcoi-, Ambler, 252 ; Sweeting y. Pearce, 7 C. B. N. S. 449. Gardiner v. Coleman, cited I Burr. 494 ; See Man v. Shiffner, 2 East, 623, 529, 6 East, 28, u. ; Man v. Shiffner, 2 -Hrhere a broker employed by a factor East, 623. ^ to insure, was held to hare a Uen on («) Stevens v. Biller, 25 Ch. D. 31. the policy to the extent ^ the factor's (b) Hudson v. Granger, 5 B. & Aid. balance against his principal ; this 27. See Drin/cwater v. Goodwin, Cowp. was on the ground that the factor had 261, and ante. Book i. Ch. 4. a lien, and that the broker might be (c) Houghton r. Matthews, 3 B. & considered his servant to retain the P. 486. See Walker v. Birch, 6 T. E. goods. See M'Comhie v. Davies, 7 268, per Lawrence, J. ; Olive v. Smith, East, 5. Therefore, the right of a 5 Taunt. 56 ; Weldon v. Gould, 3 Esp. sub-agent to retain against the prin- 268. oipal can never extend beyond that of {d) Mann v. Forrester, 4 Camp. 60; the immediate agent : Solly \.Mathbone, Westwood v. Bell, Id. 349 ; Bell t. 2 M. & S. 298. See Jackson v. Clarice, Jutting, 1 Moore, 155. 1 T. & J. 216. (/■) 8 App. Cas. 874. 704 MEKCANTILE EEMEDIES. How the tobacco in their own names, but they were in fact commi&- aoqmred. ^.^^ agents for Havannah merchants to whom the tobacco belonged. The plaintiffs, who had notice that the Havannah agents had unnamed prinoipals, were held not entitled to a general Hen on the policy money in their hands for the balance of their general account with the Havannah agents. " On this question," said the Court of Appeal, referring to McFarlane V. Norris (g), and Meyer v. Dresser {h), " according to our law the right of the defendants to a lien or set-off depends on a question of fact — viz., whether the defendants did or did not know that Demestre & Co. (the Havannah agents) were acting for an undisclosed principal before the defendants' alleged lien or right of set-off accrued " («). Where a general lien is claimed by carriers founded on the usage of trade, strong evidence of the usage is required (j). Section III. — Sow Lost. How lost As a possessory lien is a right to retain possession, it follows of course that where there is no possession there can be no lien (k). It also follows, that, where the possession of the goods has once been abandoned, the lien is gone ; but when the master of a ship, in obedience to revemie regulations, lands goods at a particular wharf or dock, he does not thereby lose his lien on them for the freight (/), and, where they are not required to be landed at any particular dock, the common practice is to {g) 2 B. & S. 783. (J) Hushforth v. Madjield, 6 East, (A) 16 C. B. N. S. 646, at p. 665. 519 ; 7 East, 224 ; Soldemess ,. Col- [i) Mmpons v. Mildred, 9 Q. B. D. limon, 7 B. & 0. 212; Wrii/htv. Enell, 530, at p. 543. Lord Blackburn, with 5 B. & Aid. 360 ; Sutler v. Woolcott, reference to the same case hi the House 2 B. & P. 6 ; but see Aspinall v. Pwi- of Lords (8 App. Cas. at p. 885), sug- ford, 3 B. & P. 44, a. {a). gests that the Factors Act of 1823 (4 (A) Sutton v. Bragg, 7 Taunt. 14; Geo. 4, 0. 83), s. 1, may have modified Kruger v. Wilcox, Amb. 254 ; 1 Burr, the rule as to consignees, so that know- 494; Steeet m. Fym,! East, 4. The ledge, however obtained, that the peculiarity, in this respect, of a vcn- goods were not the property of the dor's lien, if it can properly be so person dealing with them would not called, for his price, has been treated necessarily deprive the agent of his of in the last chapter, 'i''"- (0 mimi V. Juimn; 1 M. & S. 157. LIEK, 705 land th.em at a public wharf and direct the wharfinger not to How lost. part with them till the charges upon them are paid («) ; in this case the wharfinger is the shipmaster's agent, and the goods remain in the constructive possession of the latter: the Merchant Shipping Act, 1862, s. 67, directs what course the ship- owner is to follow (n). But, otherwise, the rule concerning pos- session is so strict, that if a party having a lien on goods cause them to he taken in execution at his own suit and purchase them, he so alters the natixre of the possession that his lien is destroyed, though the goods may never have left his pre- mises (o). And if, when the goods are demanded from him, he claim to retain them on some different ground, and make no mention of his lien, he will be considered as having waived it, and the owner of the goods may sue him without ten- dering a satisfaction for the debt which created his lien (p). For it is to be remembered that in all cases the owner of the goods, on tendering such satisfaction, has a right to his property ; and if the creditor refuse after such tender to restore it, he does so at his peril, for if the tender were sufficient in amount, he is a wrongdoer, and answerable for his misconduct in an action (q). Nor, indeed, is an actual tender strictly so called necessary, if the person in whose possession the goods are have signified his refusal to accept the amount really due (r). Moreover, the possession must be kmful. A creditor cannot tortiously seize upon his debtor's goods and then claim to retain them by virtue of a lien (s) ; so if he abuse the (m) Abbott on Shipping, 323, 12th charge nnder protest may recover it : ed. ; Carver on Carriage by Sea, s. Somes v. Britiah B. S. Co., 8 H. L. Ca. 475 ; Mora-k-Blaneh v. Wilson, L. E. 338. 8 C. P. 227. M Jones v. Tarleton, 9 M. & W. («) See Appendix. 675 ; The Norway, Brown. & Lush. (o) /acoSs V. Xai!oM>-, 5 Bing. 130. 377,404. {^)iJoa)'.\ii^, in accordance with the Bankruptcy SeLee, 23 Ch. D. 216; Be James, 12 Act, 1877, s. 5. In re Sollingahead, Q. B. ]). 332. 6 MorreU, 66. (n) See as to the distinction between (»■) WorsUy v. De Mattos, 1 Burr. 467 ; acts which are necessarily acta of Re Wood, Ex parte LiicJces, L. E. 7 Ch. bankruptcy, and acts which are so Zfil; Ex parte Hawker, Me Keely, L. E. when coupled with an intent, Mellish, 7 Ch. 214; Smith v. Cannan, 2 E. & B. L. J., in Re Wood, L. R. 7 Ch. at p. 35 ; Oriental Bank v. Coletnan, 30 L. J. 306 ; Ex parte Chaplin, 26 Ch. D. 319. Ch. 636 ; Woodhouse v. Murray, L. E. (o) B. A. 1883, s. 4. 2 Q. B. 634 ; 4 Q. B. 27 ; Ex parte (p) Kettle V. Sammond, Cooke, 86; Foxley, L. E. 3 Ch. 513; Youny v. Ex parte AUop, 29 L. J. Bank. 7. Fletcher, 3 H. & C. 732 ; Ex parte Tre- {q) Ex parte Crispin, L. R. 8 Ch. vor, 1 Ch. D. 297 ; Ex parte Burton, 13 374. Evidence may be given of such Ch. D. 102. ri2 :MEIICA>iTILE RJ^MEniKS. may become bankrupt. Acts of bank- ruptcy. How a person extend, that if a debtor conveyed his property to trustees, such conveyance, though it were for the benefit of all his creditors, and had never passed out of the debtor's hands («), was an act of bankruptcy (t) ; nor would such its effect be prevented by the fact of its non-execution by the trustees («) ; if, however, it could not operate at all till executed by three persons, it was not an act of bankruptcy when executed only by one, though, when it operated immediately as to that one, it constituted an act of bankruptcy by him («). The transfer must convey, or purport to convey, an interest to the transferee (y). Neither a creditor who has executed, or been privy to, or acted under, such a deed, nor any person as his representative, can afterwards set it up as an act of bankruptcy (s). Such an assignment for a present consideration — e.g., an advance of money — is not void, unless a fraudulent intent is proved (a). An assignment of part of a debtor's effects, even on account of a bygone and before-contracted debt, does not, like an as- signment of the whole, carry with it any intrinsic evidence of fraud; since everybody must, in the course of busin^p, have power to make over some part of his property to credi- tors (i). But though not fraudulent or void jBe** sc, yet if made in contemplation of bankruptcy, and with -an intent to give the transferee an undue advantage over other creditors, it is fraudulent and void (c). It is to be observed that all the cases, without a siagle exception, where the assignment of his property by a debtor has («) Boteherby v. Zanca^ter, 1 Ad. & E. 77. (t) Kettle V. Sammond, Co. B. L. 90 ; Eekhardt v. TFihon, 8 T. R. 140 ; Stewart v. Moodi/, 1 CM. & E. 777 ; Bou-lcer v. SwrdeUn, 11 M. & W. 128. (m) Simpson v. Sikes, 6 M. & S. 295. [x) Button y. Morrison, 17Ves. 190; Bowker v. BurdeMn, 11 M. & W. 128 ; Bannatyne v. Leader, 10 Sim. 350. (y) Isitt V. Beeston, L. R. 4 Ex. 169. (2) Ex parte Stray, L. R. 2 Oh. 374 ; Bamford v. Baron, 2 T. E. 694, n. ; Exparte Cawkell, 1 Rose, 313 ; Exparte Oramford, 1 Christ. 137, 182 ; Expmte Shaw, 1 Madd. 698 ; Ex parte Kilner, Buck, 104; Exparte Tealdi, 1 M. D. & De Gr. 210 ; Marshall v. Barkworth, 4 B. & Ad. 608. («) Golden v. Gillam, 20 Oh. D. 389. (J) Sale V. Allnutt, 18 C. B. 505 : Smith V. Timms, 1 H. & C. 849; Edwards v. Glyn, 28 L. J. Q. B. 350 ; Bilh V. Smith, 34 L. J. Q. B. 68. (c) Ex parte Pearson, lie Mortimer, L. E. 8 Ch. 667 ; Lacoii v. Ziffen, 32 L. J. Ch. 315. BAXKRUPTCY. 713 been deemed fraudulent and an act of bankruptcy, are eases How a person where the assignment was made, either without consideration, or bankrupt, for a bygone and before-contracted debt. But it is clear that a Acts of bank- trader may sell the whole, or any part, of his stock, to a fair ruptoy. and bond fide purchaser, without thereby committing an act of bankruptcy. Nay, even though the intention of the debtor when he sells be to abscond and carry off the purchase-money, still, if the purchaser was not aware of that intent, but dealt fairly and bond fide, such sale is not an act of bankruptcy {d). And an assignment by a debtor of all his effects, executed to secure a bygone debt in consideration of an advance {e) by a person lending bond fide or agreeing bond fiAe to make advances or any fair present equivalent, with the object of enabling the debtor to continue his business (/), would be supported on the like grounds. So, too, would a 4ond fide sale of goods, though the proceeds of the sale were used in making a voluntary pay- ment (g^). (b) If in England or elsewhere he makes a fraudulent convey- ance, gift, delivery, or transfer of his property, or of any part thereof. A conveyance, gift, delivery, or transfer, if fraudulent, which we observe it must be to constitute an act of bankruptcy within this section, is either fraudulent within stat. 13 Eliz. c. 5, or fraudulent on account of its contravening the policy of the bankrupt laws, which seeks, as we must recollect, the equal distribution of the bankrupt's property among his creditors. [d) Sarwood \. Bartlett, 6 Bing. li-U. % Ch. 211; Ex parte £1118,2 Ch. N. C. 61. D. 797 ; Ex parte Winder, 1 Ch. D. (e) Lomax v. Buxton, L. E. 6 0. P. 290 ; Ex parte King, 2 Ch. D. 256. 107 ; Ex parte Snowball, L. R. 7 Ch. (/) Ex parte Reed, L. R. 14 Eq. 586 ; 634 ; Ex parte Noi-ton, L. R. 16 Eq. Ex parte Sheen, 1 Ch. D. 560; Ex parte 397 ; Whitmore v. Claridge, 33 L. J. WilUmm, Me Berry, 22 Ch. D. 788 ; Q.B. 87 (Exoh. Ch.) ; Mercer y. Peter- Ex parte Johnson, Be Chapman, 26 son, L. R. 2 Ex. 304 ; 3 Ex. 104 ; Ch. D. 338 ; Ex parte Stubbing, Be Pennell v. Beynolds, 11 C. B. N. S. TTilkinaon, 17 Ch. D. 58; Ex parte 709 ; Baxter v. Pritchard, 1 Ad. & B. Bauxwell, Be Hemingway, 23 Ch. D. 456 ; Bose v. Eaycoclc, Id. 460 ; Bitlle- 626 ; Ex parte Chaphn, Be Sinclair, 26 atone v. Cook, 6 E. & B. 296 ; Carr v. Ch. D. 319. Burdiss, 1 C. M. & R. 443 ; Tf'hiiwell (g) Ex parte Stubbing, 17 Ch. D. 58 ; V. T/iompumi, 1 Eap. 68: Ex parte Tznrd. Ex parte Held^r, 24 Ch. D. 339. 714 MERCANTILE REMEDIES. How a person With respeot to the cases on the statute of Elizabeth, they bEuArnpt™^ depend each on its own particular circumstances. Where there Acts of bank- ^^8 heen a transfer or assignment of goods, hut the transferor ruptoy. Qj. assignor continues in possession of them after such transfer or assignment, that is a hadge or evidence of fraud if the con- tinuance of possession be inconsistent with the purport of the assignment {h) ; and it was once held by Lord Ellenhorough that the transferor remaining in possession, even concurrently with the transferee, would be a mark of fraud («'). However, the want of transfer of possession, though evidence, is in no case conclusive evidence of fraud [k), and, if consistent with the purport of the assignment, seems not to warrant any imputa- tion thereof {I). And there are many other ways of rebutting the imputation of fraud ; e.g., if the assignment to the trans- feree take place under circumstances of such notoriety as occur at a sheriff's sale (»«), or at an auction (m). In short, though there is always reason for suspicion where an assignor who is under pecuniary embarrassments remains in possession of the property assigned, such suspicion of fraud is open to be rebutted, and if it can be rebutted, the assignment is not void (o). We shall, however, presently see that property in this situation may become lost to the transferee and pass to the bankrupt's trustee upon another ground, namely, that of its (h) Twine's Case, 3 Rep. 80 b ; 1 498; Carry.Surdiss,lG.M.&'R.182. Smith, L. C. 1 ; Edwards v. Sarben, {!) Martindale v. Booth, ubi sup. ; 2 T. R. 587 ; Freeman v. Fope, L. R. Reed \. Wilmot, 7 Biag. 677. See .5 Ch. 538; Mackay y. Douglas, L. R. B. N. P. 268; . 436. Fisher v. Boucher, 10 B. & C. 705; («) See Eeyler v. Hall, Palmer, 325. Key v. Shaw, 8 Bing. 320. (o) Bound V. Sope Byde, Co. B. L. BANKKUPTCY. 719 indicative of keeping house, such, for instance, as secluding Ho-w a person himself, is not, per se, an act of bankruptcy {q) ; neither, on b^^pt. the other hand, is a denial, if he did not order it (r). And ^ots of bank- it has been laid down that such denial must be to a ere- ruptoy; ditor (s) who has a debt actually due, and that a denial to a creditor whose debt is payable in futuro is not sufficient (t). If a debtor order himself to be generally denied, and be in consequence denied to a creditor, that is sufficient, though it was not that creditor, but another, whom he intended to avoid (m). (e) If execution issued against him has been levied by seizure and sale of his goods under process in an action in any Court, or in any civil proceeding in the High Court. In order to render the levying of such an execution an act of bankruptcy, there must be not only a seizure but a sale [x). The act of bankruptcy not being complete till the sale has divested the debtor of the property, the proceeds would belong to the creditor ; but by a subsequent section {y) the officer executing the process, if the judgment on which execution has issued exceeds twenty pounds, is to retain them for fourteen days, and in the event of notice of a petition in bankruptcy being served on him within that period, and the debtor being adjudged a bankrupt, he is to hold them, after deducting expenses, for the trustee. (f ) If he files in the Court a declaration of his inability to pay his debts, or presents a bankruptcy petition against himself. The declaration must be in proper form (s), and filed, (q) Maker v. Soucher, 10 B. & C. Jefs v. Smith, 2 Taunt. 401 ; Ex parte 705 ; Garret v. MouU, 5 T. B. 575 ; Samford, 15 Ves. 449. Sare v. Waring, 3M. & W. 362. («) Miiclclow v. May, 1 Taunt. 479. {)•) Dudley v. Vaughan, 1 Camp. [x) Ex parte Brooke, Re HaaaaU,'L.'S.. 271 ; Ex parte Foster, 17 Ves. 416. 9 Ch. 301 ; Stock t. Holland, L. E. 9 {s) elements^. M'Ktbben, 2 H. & N. Ex. 147. 62. (y) B. A. 1883, s. 46 ; Ex parte {t) See Exparte Levi, 7 Vin. Abr. 61, Crossthwaite, 14 Q. B. D. 960. pi. 14 ; Colkett v. Freeman, 2 T. R. 69 ; (z) B. R. 1886, Rule 135. Jaekmar v. Nightingale, B. N. P. 40 ; 720 MEKCANTILE KEMEDIES. How a person that is, delivered to the proper ofllcer for that purpose (a). A bSrupt™^ dehtor may now present a petition against himself; and the Acts of bank- presentation thereof will he deemed an act of hankruptcy ruptoy. without the previous filing of any declaration of iaahility to pay debts (5), (g) If a creditor has obtained a final judgment against him for any amount, and execution thereon not having been stayed, has served on him in England, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, requiring him to pay the judg- ment debt in accordance with the terms of the judgment, or to secure or compound for it to the satisfaction of the creditor or the Court, and he does not, within seven days after service of the notice in case the service is effected in England, and in case the service is effected elsewhere then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice, or satisfy the Court that he has a counter-claim, set-off, or cross demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained. A bankruptcy notice under this sub-section can be issued only by the creditor who has obtained the judgment, or his legal personal representative (c). On the act of bankruptcy, however, which is complete uponthe failure of the judgment debtor to comply with the notice, any creditor may found a petition (d). The judgment must be a final one, strictly so called, upon which the creditor may at once issue execution (e). A garnishee order («) Hansford v. Maule, L. R. 8 0. P. He Tennent, 17 Q. B. D. 367 ; Ex parte 672. /(fe, 17 Q. B. D. 755 ; Ex parte Ford, (i) B. A. 1883, s. 8. 3 Mor. 283 ; In re Comon, 5 MorreU, («) Ex parte Blanchett, Re Keeling, 80 ; In re Seddell, 5 Mor. 59. 17 Q. B. D. 303 ; Ex parte Woodall, In Ex parte Woodall, supra, it was 13 Q. B. D. 479. As to form of said, that the executrix (i. «., the i notice, No. 6. personal representative) of a judgment {d) Ex parte Dearie, Se Hastings, li creditor would he included in the Q. B. D. 184. words "creditor who has obtained a (e) Ex parte Feast, 4 Mor. 37 ; Ex final judgment," if she had obtained parte Woodall, supra ; Exparte Chinery, leave to issue execution ; but in Ex 12 Q. B. D. 342; Exparte Schmitz, parte Blanchett, 17 Q, B. D. 303, Re Cohen, 12 Q. B. D. 509 ; Ex the Court of Appeal decided that they parte Moore, Re Faithfull, 14 Q. B. did not apply to the assignee of a D. 627 ; Exparte Whinney, Re Sanders, judgment debt ; and in In re OoUring, 13 Q. B. D. 476 ; Ex parte Grimwade, 22 Q. B. D. 87, that they did not KANKRUPTCY. 731 absolute is not a final judgment within the section (/). Satis- How a person faction may be made under the provision in the latter part of bankrupt, the sub-section, by giving a note or bill, during the currency Acts of bank- of which the creditor would not be entitled to proceed on the """Pt^y- notice {g). (h) If the debtor gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts. The notice may be given by word of mouth (Ji), but must be formal and deliberate {i), such as business men would under- stand to denote an intention to suspend payment. Section III. — Who may he petitioning Creditor. In order to found proceedings in bankruptcy there must be a Wto may be liquidated debt or debts amounting to 50^. payable either im- creditor, mediately or at some certain future time (A), an act of bank- ruptcy must have been committed by the debtor within three months before the presentation of the petition, and the debtor must be domiciled in England, or within a year before the presentation of the petition have ordinarily resided or had a dwelling-house or place of business in England (l). "We must now consider who may be petitioning creditor, and of what nature must be his debt. A single creditor or two or more creditors may petition {m). In the case of a debt due to a company or co-partnership autho- rized to sue and be sued in the name of a public officer or agent, the petition and affidavit may be filed by any such officer or apply to the trustee in the bankruptcy (A) A judgment recovered against of a judgment creditor. the debtor is not necessarily couclu- (/) Ex parte Ohinery, 12 Q. B. D. sive ; and, if sufficient reasons are 342. given, the Court of Bankruptcy will (g) Ex parte Matthew, 12 Q. B. D. inquire into the validity of the judg- 506. ment ; In re Lennox, Ex parte Lennox, {h) Ex parte Niclcoll, Re Walker, 13 16 Q. B. D. 315 ; In re Saville, Ex Q. B. D. 469. parte Saville, i Morrell, 277. (») Ex parte Oastler, Re Friedlander, {1} B. A. 1883, s. 6. 13 Q. B. D. 471. But compare In re (m) B. A. 1883, s. 6, sub-s. 1 (a). Lamb, Ex parte Gibson, 4 Mon-ell, 25. 722 MERCANTILE REMEDIES. Who may be agent (m). A married woman in eases where she can sue creditor. ° alone (o), an infant (p), an executor (^), and a factor who has sold goods in his own name (r), can all he petitioning creditors; so can a trustee provided the cestui que trust joins in the peti- tion (s). But a receiver appointed hy the Chancery Division to collect certain property cannot (t). We have seen that the debt or debts must amount to fifty poimds, and that they must be Kquidated and payable either immediately or at some certain future time («). Though, in the present Act, there are no express words, as there were in the preceding one, to the effect that a debt " due in equity" will suffice, it would seem that such a debt will still support a peti- tion. Apparently, however, there may be, in equity, liabilities to pay money which would not constitute debts (x). The debt may be on account, if the creditor swear to a sufiB- cient balance (?/), or a sum awarded, notwithstanding a motion to set aside the award (2), or a solicitor's bill, though not signed, or delivered, or taxed (a), or the debt of a surety {b). Differences on the Stock Exchange, as fixed by the official assignee accord- ing to the rules of the Stock Exchange, will be a good petition- ing debt (c). But not a mere security for a contingent demand {d), nor unliquidated damages on a covenant, or for a tort before judgment (e) ; nor a cross-acceptance, unless the creditor have paid his own (/) ; nor can the husband petition («) B. A. 1883, s. 148 ; B. R. 1886, Se Scott Russell, 31 L. J. B. 37. But r. 258. see Ex parte Sowes, 4 Ves. 168. (o) 45 & 46 Vict. 0. 75, s. 1 ; 20 & 21 (z) Ex parte Lingwood, 1 Atk. 240 ; Vict. u. 85. Marson v. Barher, Go-w, 17. {p) Ex parte Brocklehank, 6 Ch. D. (o) Ex parte Sutton, 11 Ves. 163 ; Ex 358. parteSteel, UYes. 166; ExparteSowell, (■) B. A. Sohed. II., rr. 23, 25. (m) B. A. Sohed. II., r. 19. («) B. A. 1883, Sohed. 11., r. 6. («) B. A. Sohed. II., r. 21. {«) B. A. 1883, s. 9. (o) B. A. Sohed. II., r. 20. («) B. A. 1883, Sohed. II., r. 9. (p) B. A. Sohed. II., rr. 22, 27; B. \x) B. A. 1883, Sched. II., r. 10. R. 1886, rr. 227, 228. 736 MERCANTILE REMEDIES. Eei»e4ies of Ms proof and receive a dividend on the balance in respect of the ! balance after deducting such assessed value {y). There are pro- visions in such a case for amendment' of the valuation and enabling the trustee to redeem the security at the value put upon it by the creditor (s). The penalty for ifon-compliance with these rules is exclusion from dividend (a). For the purpose of voting at any meeting of creditors, a secured creditor is to be deemed a creditor only for the balance of his debt after allowing for the value of his security, and if he votes in respect of the whole debt he will be deemed to have surrendered his security (6). A secured creditor means one holding a mortgage, charge or lien on any part of the bankrupt's property as security for a debt due to him from the debtor (c). A creditor, therefore, holding the security of a third person is not obliged to give it up, or sell it, before proving ; and as the separate estates of partners are considered as distinct from th,e joint estate of the firm, it would seem that a joint creditor, holding a separate security, from one of the co-debtors, or separate securities from both of them {d), may prove against the joiat estate, without surrender or sale of his security (e). And so the holder of a joiat security may prove against the separate estate of one debtor, and recover what he can against the other. But more than twenty shillings ia the pound must not be received in the whole (/). Where a security is deposited generally, and the creditor has two demands, one provable, the other not, he may apply his security to the demand which is not provable {g). What debts provable. — Having considered the mode of proof, the next question that occurs under the head of proof is, what (y) B. A. 1883, Sched. II., r. 11. See Ex parte Freen, Id. 250 ; Ex parte [z) B. A. 1883, Sched. 11., rr. 12— M'Eenna, 30 L. J. Bkcy. 25 ; Exparte 15; Ex parte Norris, Re Sadler, 17 West Riding, 19 Ch. D. 103; Exparte Q. B. D. 728 ; 3 MorreU, 280. Caldicott, 23 Ch. D. 716. {«) B. A. 1883, Sched. II., r. 16. {/) B. A. 1883, Sched. II., r. 17; (b) B. A. 1883, Sched. II., r. 10; Ex parte Bennet, 2 Atk. 527; Exparte Baines v. Wright, 15 Q. B. D. 102. Parr, 1 Rose, 76 ; Ex parte Taylor, 26 [c) B. A. 1883, 8. 168, sub-s. I. L. J. Bkcy. 58. {d) Re Plummer, 1 Ph. 66. [g) Ex parte Havard, Co. B. L. 124 ; (e)' Ex parte Feacocle, 2 G. & J. 27. Exparte Hunter, 6 Ves. 94. BANKRUPTCY. 737 debts are provable. No debt can be so, if it arise out of an Eemedies of crfidilfOTS illegal contract, or is barred by the Statute of Limitations {h), ! or if there be no consideration for it. A debt founded in felony will probably be provable unless the creditor is shown to be omitting some duty, as that of taking pro- ceedings for a prosecution, in regard to prosecuting the felon («'). Demands in the nature of unliquidated damages arising other- wise than by reason of a contract, promise or breach of trust are not provable ; nor can a creditor who has notice of an act of bankruptcy available against the debtor prove for any debt or liability contracted subsequently to the date of his having notice {k). Thus, a demand of damages for the commission of a tort is not provable, unless judgment has been signed for them before the receiving order, or they have been liquidated by agreement before bankruptcy {I). Except demands for unliquidated damages and debts con- tracted after notice of an act of bankruptcy (which, as we have seen, are not provable), all debts and liabilities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any liability incurred before such date, are provable («). The value of contingent debts will be estimated; if. incapable of valuation such debts will not be provable («). The word " liability " includes any compensation for work or labour done, any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agreement, or undertaking, whether the breach does or does not occur, or is or is not likely to occur (A) Ex parte Dewdney, 15 Ves. 498; {l) Ex parte Baum, Re Edwards, Ex parte Roffey, 2 Eose, 245 ; Ex L. E. 9 Ch. 673 ; Ex parte Srook, Re parte Bell, 1 M. & S. 751 ; Ex parte Newman, 3 Oi. D. 494 ; Ex parte Chavasae, 34 L. J. Bktoy. 17; Ex parte Mumford, 15 Ves. 289 ; Ex parte Sard- Mather, 3 Ves. 373. iny, Re Pickering, 23 L. J. Bktoy. 22 ; (i) See Ex parte Ball, Re Shepherd, JFataon v. Holliday, 20 Ch. D. 780 ; In 10 Ch. D. 667 ; Midland Insurance Co. re Giles, 6 Morrell, 153. V. Smith, 6 Q. B, D. 561 ; Ex parte {m) B. A. 1883, s. 37, sub-e. 3. Leslie, Re Guerrier, 20 Oh. D. 131 ; («) B. A. 1883, s. 37, sub-ss. 4, 6; Roope V. B'Avigdor, 10 Q. B. D. 412. Linton v. Linton, 15 Q. B. D. 239. [k) B. A. 1883, s. 37. 738 MERCANTILE REMEDIES. Remedies of OP capaBle of occurring before the disoliarge of the dettor, and '. generally it includes any express or implied engagement, agree- ment, or undertaking, to pay, or capable of resulting in the payment of money or money's worth, whether the payment is, as respects amount, fixed or unliquidated ; as respects time, present or futurfe, certain or dependent on any one contingency, or on two or more contingencies ; as to mode of valuation capable of being ascertained by fixed rules, or as matter of opinion (o). These terms are exceedingly comprehensive (p) — indeed it is impossible that wider terms should have been employed— and the Court is disposed to give them an operation which shaU relieve the bankrupt " from any liability under any contract he had ever entered into " (q). Thus, debts arising from fraud or breach .of trust (r), money paid for a lost bet or for differences on the Stock Exchange («), liability for calls in a winding-up (t), voluntary bonds (m), may all form the subject of a proof. The holder of a bill of ex- . change may, in general, prove against all the parties liable upon it for the fall amount of the bill, and he may prove against the estate of the drawer or acceptor before the bill is dishonoured (»). Where, however, the bill is a fraud on the bankruptcy law, and the holder knew or ought to have known that it was so, he can only prove at most for the amount which he has paid to obtain the bill (y) . In the case of accommoda- tion acceptances, if one of the parties only becomes bankrupt, the other may prove for the amount he has paid for the bank- rupt's accommodation (z), but if both are bankrupt, only the (o) B. A. 1883, B. 37, sub-s. 8. {t) Be Mercantile Marine Assurance {pj Hx parte Naden, Re Wood, L. R. Co., 25 Ch. D. 415. 9 Ch. 670 ; Hx parte Feaoock, Se Duf- (m) Ex parte Poitinger, Re Stewart, 8 field, L. R. 8 Ch. 682. Ch. D. 621. (?) Ex parte Llynvi C. f I. Co., {x) Ex parte Brymer, Co. B. Jj.lGb; L. E. 7 Ch. 28 ; Ex parte Waters, Cowley v. Dunlop, 7 T. R. 565 ; Ex L. R. 8 Ch. 562 ; Robinson v. Omman- parte Bartlett, 3 Be G. & J. 378 ; Ex net), 23 Ch. D. 285. parte Sayvoard, L. R. 6 Ch. 546 ; Ex {r) B. A. 1883, 8. 37, sub-ss. (1) and parU Newton, 16 Ch. D. 330. As to (3) ; Emma Silver Mining Go. v. Grant, the right of voting, see B. A. 1883, 17 Ch. D. 122 ; Jaclc v. Kipping, 9 Sched. I. rr. 11, 12, in Appendix. Q. B. D. 113. (j,) Jones t. Gordon, 2 App. Cas. 616. (s) Ex parte Pyke, Re Lister, 8 Ch. D. («) Re Bowness, Co. B. L. 162. 754; Ex parte Rogers, 15 Ch. D. 207. BANKRUPTCY. '^^ cash balance on tte one side or the other can be proved for (a). Remedies of creditors. A party who has negotiated a bill of exchange cannot prove against the acceptor's estate, unless he takes up the bill (b). A surety can only prove against his co-surety's estate if he has paid more than his proportion of the debt (c). Persons who have made loans under Bovill's Act, without becoming part- ners (d), and married women who have lent money to their husbands, cannot prove at all until the other creditors have been paid in full (e). There are certain debts directed to be paid in priority to all others, viz. : — All parochial or other local rates due from the bankrupt at the date of the receiving order, and having become due and payable within twelve months next before such time, and all assessed taxes, land tax, property or income tax, assessed on him up to the 5th day of April next before the date of the receiving order, and not exceeding in the whole one year's assess- ment (/) ; AU wages or salary of any clerk or servant in respect of services rendered to the bankrupt during four months before the date of the receiving order, not exceeding 50/. () Ex parte Sill, 11 Ves. 646; 33 ; Exparte Fewings, He Sneyd, 25 Ch. Southgate t. Satmders, 5 Exoh. 565. D. 338. But see Simpson v. Mirabita, L. E. 4 (r) B. A. 1883, h. 40, sub-s. S ; Q. B. 257. Ex parte Bith, Re Phillips, 11 Ch. D. («>) Exparte Feacoek, Re Duffield, L. 460; 27 Ch. D. 509. E. 8 Oh. 682. (s) Co. B. L. 195 ; Ji!. v. Davis, 9 [x) Ex parte Newman, Re Brooke, 3 East, 318 ; Ex parte Eieke, 1 G. & J. Ch. D. 494 ; Bussy. Gilbert, 2 M. & S. 261. 70. See Ex parte Foueher, 1 G. & J. [t) See Ex parte Foueher, 1 G. & J. 385 ; Sire v. Moreaii, 4 Bing. 67 ; 386 ; Aylett v. Earford, 2 "W. Bl. Oxlade v. N. E. R. Co., 15 C. B. N. S. 1317 ; Ex parte Eelm, 1 Mont. & M. 696. 70. 742 MERCANTILE REMEDIES. Remedies of demands in the nature of unliquidated damages arising other- Ll__ wise than by reason of some contract or promise, proof cannot be made for costs. But if judgment has been signed before adjudication the costs may be proved as part of the judg- ment (y). So where an action was compromised, the defendant apologising and agreeing by rule of Court to pay the plaiatiff's costs, it was held that the Master's allocatur rendered these costs provable under the defendant's bankruptcy, which after- wards took place (2) ; and so were interlocutory costs held provable which were awarded and taxed against the bankrupt for not proceeding to trial before his bankruptcy (a). Proof may be made for costs before taxation if the creditor swear to a certain amount " and upwards " (6). Partnership Debts. — There are some peculiar considerations applicable to the proof of debts where a firm has wholly or in part become involved in- bankruptcy. These considerations relate either to demands by third persons against the firm or some of its members, or else to demands made by the partners or their respective representatives against each other. "We will consider these two cases successively ; and, first, with respect to demands by third persons upon a partnership or its individual members. All the partners in a firm may become bankrupt together, or some or one only may become bankrupt, the rest remaining solvent. Por acts of bankruptcy are, we have seen, not to be raised by implication, and a partner cannot become a bankrupt unless he personally commit an act of bankruptcy (c) ; there- fore, when the resident partner in a bank shut up the house and absented himself and the bank stopped payment, this was held evidence of his own bankraptcy, not of that of the non-resident partner ((5?). Of course the separate creditor of one partner (y) Ex parte Newman, He Brooke, (J) Ex parte Suffle, Ee Dummelow, 3 Ch. D. 494. L. E. 8 Ch. 997. SeeEx parte JDition, («) Siley V. Byrne, 2 B. & Ad. 779 ; Jie Woods, 13 Ch. D. 318. Ex parte Sarding, SeJ>iekeritiff,6DeG. (c) See ss. 115, 148, rr. 259—264. M. & G. 367. (d) Milk v. Bennett, 2 M. & S. 665 ; («) Jacobs V. Phillips, 1 C. M. & R. Ex parte Mavor, 19 Ves. 638. For l^'^' oases where the whole firm became BANKRUPTCY. 743 cannot present a joint petition (e), but we have seen that a Remedies of creditor of the firm may present a joint petition against all the '- partners, or against one or more of the partners without including the others (/). Where a receiving order has been made against one partner, a petition against another partner is to be filed in or transferred to the same Court, and the same receiver or trustee shall be appointed, unless it be otherwise ordered, and the proceedings may be consolidated (g'). A re- ceiving order against a firm will operate as a receiving order against each of the persons who was a partner at the date of the order (h) ; and no order of adjudication is to be made in the firm name, but it must be made individually against the part- ners (i) . Where the whole firm has become bankrupt and a petition has been presented by or against it, the whole of the joint pro- perty of the- firm, and of the separate property of each of its members, is to be administered and passes to the trustee (J). Eut under a separate bankruptcy the property to be administered consists of the separate estate of the bankrupt, together with such part of the joint property as the bankrupt himself would be entitled to (k). And as the bankruptcy occasions a dissolution of the partnership, the trustee of the bankrupt partner becomes tenant in common with the solvent partner of the partnership effects, and holds the bankrupt's undivided share thereof, subject to the state of the partnership accounts (l). bankrupt, see Spencer v. Billing, 3 vis v. Taylem; 3 B. & Aid. 657. Camp. 310 ; Capper v. Mesanges, 3 {&) Sorsey's case, 3 P. Wms. 23 ; Moore, 4 ; Deffle v. Descmges, 8 Taunt. Eddie v. Davidson, Dougl. 627 ; Bolton 671 ; Ex parte Gardner, 1 V. & B. 74 ; v. Fuller, 1 B. & P. 539 ; Barker y. Eckhardt v. WiUon, 8 T. E. 140: Goodair, 11 Yea. 8b. DuttottY. Morrison, 17 Ves. 193. (?) West v. Skip, I Yea. sen. 239; («) Prosser v. Smith, Holt, 442. Fox v. Banbury, Cowp. 445 ; Taylor v. (/) B. A. 1883, ss. 110, 115. Field, 4 Ves. 396; Smith v. Stokes, 1 (?) B. A. 1883, o. 112. Ex parte East, 363; Smith v. Oriel, 1 East, Grem, 3 De Q-. & J. 60 ; In re Trott, 368 ; Boldemess v. Shackels, 8 B. & C. 7 L. T. N. S. 699. 612; Eewis v. Edwards, 7 M. & W. [h) B. B. 1886, r. 262. 300 ; Morgan t. Marquis, 9 Exoh. 145 ; («) B. R. 1886, r. 264, and see Ex parte Gordon, He Dixon, L. R. 8 generally, rr. 259 — 270. Ch. 555 ; Ex parte Owen, 13 Q. B. D. {j) See Ex parte Cook, 2 P. Wms. 113 ; Turquand v. Board of Trade, 11 600 ; Ex parte Baudier, 1 Atk. 98 ; App. Gas. 286. Mague v. Solleston, 4 Burr. 2174 ; Jer- 74i MERCANTILE REMEDIES. Remedies of Hence it follows that, in case of the bankruptcy of part of an "f! — entire firm, it is necessary to take an account of the whole state of the partnership affairs, in order to ascertain what is to he administered (m) ; and in case of the bankruptcy of an entire firm it is also, as we shall immediately see, necessary to take such an account, in order to ascertain how the assets are to be administered («). For the rule as to the application of joint and separate property to the payment of creditors is, that the joint estate shall be applied to the joint debts, the separate to the separate debts, and the surplus of each reciprocally to the creditors remaining on the other (o). This rule was qualified by some exceptions which estabhshed that in the following eases (p) a joint creditor might prove against the separate estate pat'i passu with the separate creditors. Whether these exceptions now exist is doubtful (§■). First. A joint creditor who was the petitioning creditor in a separate petition might so prove, for the petition was in the nature of an execution for his debt against the separate estate of the bankrupt partner (»-), and this held, though he might have a separate debt due to him sufiicient to support the petition, as well as the joint debt (s). But it was otherwise where a joint creditor presented a petition ag'ainst A. as sur- viving partner of B., for then the above reason ceased to apply {t). Secondly. Joint creditors might prove against the separate estate, where there was no joint estate and no solvent partner (m), {)») B. E. 1886, T. 293. (p) As to double proof in cases of (n) See Hx parte Elton, 3 Ves. 238 ; breact of trust, see Ex parte Bane- Barker v. Goodair, 11 Ves. 85 ; Duttm wall, 6 De Gr. M. & G. 801, Id. 795. V. Morrison, 17 Ves. 193; Ex parte (q) See ss. 40 (3), 59. Farlow,\ Rose, 421. [r) Ex parte Ball, 9 Ves. 349; Ex (o) B. A. 1883, B. 40, sub-s. 3; Ex parte Aehermamn, 14 Ves. 604; Ex parte CooTt, 2 P. Wms. 600 ; Ex parte parte De Tastei, 1 Rose, 10. Elton, 3 Ves. 238 ; Ex parte Wilson, 3 (s) Ex parte Burnett, coram Lord M. D. & Be Gr. 57. See Ex parte Lyndhurst, 0., on appeal 2 M. D. & Clarj, 6 Ves. 814; Ex parte Aleoek, 11 De G-. 357. Ves. 603 ; Ex parte Taitt, 16 Ves. 193 ; (i!) Ex parte Banted, 1 G. & J. 309. Ex parte Wood, 2 M. D. & De G. 283 ; («) Ex parte Sadler, 15 Ves. 52 ; Ex Ex parte Christie, 3 M. D. & De G. parte Machell, 2 V. & B. 216. See Ex 736; ExparteDear,lC!k.T).5U; He parte Wylie, 2 Rose, 393; Ex parte Collie, 3 Ch. D. 481. mite, 2 G. & J. 295. See lodge v. BANKRUPTCY. 745 (these two conditions must have been strictly observed, for the Remedies of exception did not apply if there were a joint estate, however ° '. small (v), unless it were utterly incapable of being realized (w) ; nor if there were a solvent partner, i.e., a partner who had not become bankrupt, even though there was no joint property («), unless, indeed, it were impossible that he should be reached («/) ; the principle being, that, while there is any other fund, however small, to which they might resort, the joint creditors cannot compete with the separate ones. Thirdly. Where there were no separate debts, or, which is the same thing, where the joint creditors undertook to pay them (s). However, though the above are the rules respecting proof in order to a dividend, if a receiving order is made against one partner, any creditor of the firm may prove for the purpose of voting (a). Where there are distinct contracts on which the bankrupt is liable, either as a member of two or more distinct firms, or as a sole contractor, and also as a member of a firm, proof may be made against the several estates liable in respect of such con- tracts (i). Thus, W. P., one of the firm of P. & P., placed trust funds in the hands of P. & P., and the firm wrongfully converted the money, it was held that, as the partners were jointly and severally liable, the proof might be made against both the joint and separate estate. Proof between Partners. — The next case to be considered is Prichard, 32 L. J. Chano. 776. If a well as of partners : Ex parte Field, 3 judgment had been obtained against M. D. & De G-. 95. one only, then he must have proved (j/) See Ex parte Pinkerton, 6 Ves. on that estate alone : Ex parte Siggins, 814, n. 27 L. J. Bkoy. 27. («) Ex parte Chandler, 9 Ves. 35 ; (») Ex parte Peake, 2 Rose, 64 ; In Ex parte'Subhard, 13 Ves. 424. re Lee, Ibid. n. ; Ex parte Kennedy, 2 («) B. A. 1883, Sohed. I., r. 13. De G. k. & G-. 228. («) B. A. 1883, Sohed. n., r. 18. [w] Per Lord Eldon, 2 Rose, 64 ; See Ex parte Honey, Re Jeffery, L. R. Ex parte Sill, 2 B. &P. N. R. 191, n. 7 Ch. 178 ; Ex parte Stone, Re Welsh, [x] Ex parte Kensington, 14 Ves. Ij. R. 8 Ch. 914 ; Ex parte TFilson, Re 447 ; Ex parte Jamon, 3 Madd. 229 ; l)ouglaa, L. R. 7 Ch. 490 ; Banco de Buck, 227. See Ex parte Bauerman, Portugal v. Waddetl, 5 App. Caa. 161 ; ■t Deao. 476. And this doctrine ap- Ex parte Shephard,Re Parker, iMoireU, plies to the case of co-oontraotors as 135. 746 MERCANTILE REMEDIES, Remedies of that of demands ty partners or their representatives upon each '- other. -It sometimes happens, that a partner is indebted to the firm, or the firm to one of its partners ; in such case, the rule is, that an individual partner cannot prove against the joint estate in competition with the joint creditors ; for, as they are his own creditors also, he has no right to withdraw any part of the funds available for the payment of their debts, unless his separate estate has been fraudulently converted to the use of the joint estate (c), and the executor of a deceased partner is in no better position (d). But the rule only applies if a joint debt has been actually proved (e). Nor can those partners of a firm who remain solvent prove against the separate estate of a member of that firm, in competition with his separate creditors, unless the joint creditors be first paid twenty shillings in the pound and interest; for they might, by doing so, prevent a surplus of the separate estate from accruing, which surplus would be available towards payment of the joint creditors (/). Indeed, if the solvent partner will pay all the joint debts, he may then prove against the separate estate in competition with the separate creditors of his bantrupt copartner (g) . But to bring him within this class of creditors, there must have been an actual satisfaction of the joint debts, either by payment of the whole, or part in discharge of the whole. Nothing less will be sufficient (A). Where a solvent partner pays all the joint debts, and proves {«) :Bx parte Ellis, 2 Gl. & J. 312 ; L. E. 2 Ch. 550. Ex parte Blyth, 16 Ch. D. 620 ; Ex [g) Ex parte Bass, 36 L. J. Bktcy. parte Sillitoe, 1 Gl. & J. 374: ; con- 39. But see an exception, Ex parte versely where joint estate has been Topping, 34 L. J. Bktcy. 13 ; Ex parte fraudulently converted into separate Watson, i'M.aidL. iTl ; Woody. Sodgsm, estate : Read v. Bailey, 3 App. Cas. 94. 2 M. & S. 196 ; Aflah v. Eaardrinier, {d) Ex parte Garter, 2 Gl. & J. 233 ; 6 Bing. 306 ; Ex parte King, 17 Ves. Nansony. Gordon, 1 App. Cas. 195. 115; Ex parte Eix, Mont. 237; Ex [e) Ex parte Andrews, Se WiUoxon, parte Taylor, 2 Rose, 175 ; Ex parte 25 Ch. D. 505 ; Ee Sepbm-n, Ex parte Young, 2 Rose, 40 ; 3 V. & B. 31. Smith, 14 Q. B. D. 394. - [h] Ex parte Moore, 2 G. & J. 166; (/) Ex parte Seeve, 9 Ves. 588 ; Ex Ex parte Carter, 2 G. & J. 233 ; Ex parte Ogle, Mont. S50; Ex parte Broome, parte Ellis, 2 G. & J. 312; Ex parte 1 Rose, 69; Ex parte Sawson, Jao. 217 ; CoUinge, 33 L. J. Bktoy. 9; In re Co. B. L. 503, 505; Exjiarte CoUinge, Dixon, L. R. 10 Ch. 160. 33 L. J. Bktoy. 9 ; Ex parte Maude, BANKRUPTCY. 747 against the separate estates of his copartners (more than one E«meaiesof having become bankrupt) for the respective sums each is bound '. to contribute, it has been made a question whether, if the estate of one of the bankrupts is insufficient to pay his share of the debts, the solvent partner can come upon the other bankrupt's estates for his proportion of the deficiency. Sir John Leach decided in the negative («'), on the ground that proof is equiva- lent to payment ; and, therefore, that the solvent partner, having proved for each bankrupt's whole quota, must be regarded as having been paid it. Lord Eldmi dissented from this case {k), and from the reason on which it was founded, saying, he agreed that proof was equivalent to payment when it produced pay- ment, but doubted whether it was payment when it produced nothing. Proof between Estates. — In analogy to the rule above stated, it is also held, that where all the members of a firm become bank- rupt, the separate estate of one partner cannot claim against the joint estate of the firm in competition with joint creditors ; nor the joint estate against the separate estate in competition with separate creditors (l). Where money or effects have been fraudulently abstracted from one estate to benefit the others, there is, as we have seen, an exception : for instance, if one partner were, in violation of the partnership articles, to draw more than his share out of a bank in which the money of the firm had been deposited, the sum so drawn by him in fraud of the partnership articles would be considered in the light of pro- perty stolen from the joint estate, and would be provable by the joint estate against his separate estate, the question, whether a case be one of fraud, of course, depending upon its peculiar circumstances (m), (») Hx parte Wataon, Buck, 449 ; Hx See Hx parte Harris, 2 V. & B. 210 ; parte Smith, Id. 492. Bx parte Emly, 1 Hose, 61 ; Ex parte (A) Ex parte Sunter, Buck, S52 ; Ex Assignees of Lodge and Fendall, 1 Ves. parte Moore, 2 G-. & J. 166. jun. 166 ; Ex parte Yonge, 3 V. & B. (i) Ex parte Surrell, Ex parte Fine, 31 ; Ex parte Smith, 1 Gr. & J. 74 ; Ex Co. B. L. 632 ; Ex parte Grill, Id. parte Watkins, Mon. & Mao. 57. See 634 ; Ex parte Ogle, Mont. 350. also Ex parte Graham, 2 M. D. & De (»») Ex parte Oust, Co. B. L. 536. G. 781 ; Ex parte Walker, 31 L. J. VOL. II. S. 3 D 748 MERCANTILE KEMEDIES. Eemedies of Where One or more members of a firm carry on a distinct '. trade, proof will te admitted between the estates of the general and particular firm pari pasm with the creditors, Avhen the debt sought to be proved is for goods furnished in the same way as if they had been wholly unconnected in trade, by the one firm to the other («), at least if the estate, against which proof is ad- mitted, is not liable with that of the firm proving to any joint debts. But, excepting in the case of bankers (o), this rule will not be applicable where the debt has arisen only from money advanced by the one firm to the other (^). By sect. 3 of the Married Women's Property Act, the claim of a wife for money lent to her husband for purposes of trade or business carried on by him, or otherwise, is postponed until the claims of all other creditors for value are satisfied. But she may, it would seem, receive a dividend concurrently with other cre- ditors where the money has been lent for private purposes (j). Contributions between Estates. — As there may be proof between estates, so there may be contribution between them, where one has been subjected to an undue proportion of a charge, which ought to have fallen equally on both (?■). (b.) Remedies without Proof. Having now touched on the principal rules concerning proof, let us proceed to notice certain cases in which the creditor has a remedy without proving. Under this head we comprehend the cases, 1. of a creditor who owes to the bankrupt's estate a debt Bktoy. 69 ; Head v. Bailey, 3 App. (o) Bx parte CasUU, ubi sup. But Cas. 94. the case of bankers will only form an («)"B. R. 1886, r. 269; Cases of exception -where money has been ad- Shalceshaft, Stirrup, and Salialmry, 6 vanced by them jn the course of their Ves. 123, 743, 747; Ex parte Bar- business as such: Ex parte Williams, 1 Cox, 440 ; Ex parte St. ubi sup. Sarh, 11 Ves. 413 ; Ex parte Johns, (p) Ex parte Sillitoe, ubi supra. Co. IB. L. 638; Ex parte Castell, Et6 (q) Ex parte Tidswell, In re TidsweU, parte Stroud, 2 G. & J. 124, at p. 127 ; 4 Morrell, 219. Ex parte Sillitoe, 1 G. & J. 374 ; {>•) Ex parte Willoclc, 2 Rose, 392 ; Ex parte Cook, Mont. 228 ; Ex parte Ex parte Wylie, Id. 393. See Eogera Williams, 3 M. D. & De G. 433 ; Ex v. Maclcenzie, 4 "Ves. 752. As to costs, parte Maude, L. R. 2 Ch. 650 ; Ex see B. R. 1886, r. 128. parte Glidden, 13 Q. B. D. 43. BANKRUPTCY. 749- which 18 entitled to set off agamst his demand upon it. 2. Of a Kemedies of . . . „ .. ,. creditors. creditor who is in possession of a security or lien upon some — portion of the hankrupt's property. 3. That of a landlord availing himself of his right of distress in order to ohtain pay- ment of his rent. We will consider these in order. 1. 8et-qf.—8eGt. 38 of the Bankruptcy Act, 1883, provides that : — " Where there have heen mutual credits, mutual debts, or other mutual dealings between a debtor against whom a receiving order shall be made under this Act and any other person proving or claiming to prove a debt under such receiving order, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively ; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a debtor in any case where he had, at the time of giving credit to the debtor, notice of an act of bankruptcy com- mitted by the debtor, and available against him." It will be perceived that the right of set-off given by this section is not confined to cases where there are mutual debts, but comprehends cases of mutual credits, including not only pecuniary demands, but also cases where that which will ter- minate in a debt exists on both sides (s), and the still wider class of "other mutual dealings" {t). And if the credit given (») Gibson v. Bell, 1 Bing. N. C. S. C, L. E. 5 Ex. 289. See Make- US; Rose V. Hart, 8 Taunt. 449; ham v. Crow, 15 0. B. N. S. 847; Oroom V. West, 8 Ad. & E. 758 ; Booth v. Hutchinson, L. E. 15 Eq. &swn T. Cato, 5 B. & Aid. 861, 30; Feat v. Jones, 8 Q. B. D. 147; Stnith V. Hodson, i T. U. 211 ; Hankey Jack v. Kipping, 9 Q. B. D. 113; V. Smith, 3 T. R. 607 ; JEx parte Fres- Mersey Steel and Iron Co. v. Naylor, 9 cott, 1 Atk. 230 ; Olive v. Smith, 5 App. Cas. 434 ; Ex parte Frice, Re Taunt. 66; Ex parte Deeze, 1 Atk. Zankester, L. E. 10 Ch. 648; Re 228 ; Atkinson v. Elliott, 7 T. E. 378 ; TTinter, Ex parte Bolland, 8 Ch. D. Naoroji v. Chartered Bank of India, 225 ; Ex parte Keys, 26 Ch. D. 687 ; L. E. 3 C. P. 444 ; Asiley v. Gumey, Ex parte Caldicoti, Re Hart, 25 Ch. L. E. 4 C. P. 714 ; Toung v. Bank of D. 716 ; Ex parU Morier, Re Willis, Bengal, 1 Moo. P. 0. 0. 150. Pereival ^ Co., 12 Ch. D. 491 ; Eberle's > {t) See, as to what claims fall within Hotels and Restaurant Co. t. Jonas, these words, Krehl v. Great Central 18 Q. B. D. 459. At p. 466, Brett, 3d2 roO MERCANTILE KEMBDIES. creditors. Remedies of by the bankrupt existed before the bankruptcy, or before notice of an act of bankruptcy available for adjudication, it is suffi- cient, although the debt to the bankrupt's estate arising from such credit may not have accrued till afterwards (u). Who- ever takes a bill is to be considered as giving a credit to the acceptor, and whoever takes a note, a credit to the maker (a). But, under the terms mutual debts and mutual credits in a similar provision, it was held otherwise where a bill was deposited with the party who attempted to set it off, not in order to create a debt, but for some specific purpose (y) ; and that no case was within those in which there was not either a debt, or something Which was, from its nature, likely to end in a debt (s). It was further held that the Act («) did not authorize a set-off " where the debt, though legally due to the debtor from the bankrupt, was really due to him as a trustee for another, and, though recoverable in a cross-action, would not have been recovered for his own benefit" (i). But, on the other hand, a person who has an equitable debt due to him is as much entitled to set it off as a legal demand (c). Moreover, in order to con- stitute such a mutuality as this section intends, the debts from and to the bankrupt must be due in the same right (d). Thus, there can be no set-off between joint and separate debts (e). So M. R., says, "In my opinion, wher- (4) Forater v. TFilson, 12 M. & W. ever in the result the dealings on each 191, see p. 204 ; Selcher v. Lhyd, 10 side would end in a money claim, its Bing. 310 ; De Mattos v. Saunders, provisions -would he appUoable." L. R. 7 C. P. 570 ; LacMngton v. («) Bittlestmev. Timmis, 1 C. B. 389 ; Combes, 6 Bing. N. C. 71 ; He Pass v. Hulme V. Mugglestone, 3 M. & W. 30. Sell, 10 C. B. N. S. 517 ; ^x parte (a;) 'BeiBayley, J., in Collins\. Jones, Kingston, L. E. 6 Ch. 632. 10 B. & C. 777. (c) -Ba parte Deesse, 1 Atk. 228 ; {y) Key v. Flint, 8 Taunt. 21. And Sailey v. Johnson, L. R. 6 Ex. 279 ; 7 see Belcher v. Lloyd, 10 Bing. 310; Ex. 263; Flkin v. Baker, 11 C. B. and Forater v. Wilson, 12 M. & W. N. S. 526; ThomtonY.Maynard,'L.'R. 191 ; and the observations of Parke, 10 C. P. 695 ; Bailey v. Finch, L. E, B., in Alsag(n- v. Ourrie, 12 M. & "W. 7 Q. B. 34. at p. 758. [d) Ex parte Whitehead, 1 G. & J. [i) Sose v. Si)m, 1 B. & Ad. 521 ; 39 ; West v. Pryce, 2 Bing. 455 ; The Sampson v. Burton, 2 B. & B. 89 ; New Quebrada Co. v. Carr, L. R. 4 Rose V. Eart,& Taunt. 499 ; Ex parte C. P. 651. Ockenden, 1 Atk. 235; Bell v. Carey, 8 (e) Ex parte Christie, 10 Ves. 105; C. B. 887. Ex parte Twogood, 11 Ves. 517; Ex {a) 6 Geo. 4, c. 16, s. 50. parte Moss, Buck, 125. BANKRUPTCY. 751 in an action by a trustee upon a note given to the bankrupt's Eemedies of pTpditors wife dum sola, a debt due from the bankrupt cannot be set off (/) ; nor can a debt arisiag after bankruptcy to or from the trustee be set off against a debt from or to the bankrupt before bankruptcy (gr), even though the debt on which the trustee claims, though arising after bankruptcy, was founded on a con- tract made by the bankrupt before bankruptcy {h). The set-off is equivalent to payment, and will put an end to a lien for a smn so set off («"). The only qualification imposed on the right of set-off by sect. 38 of the Act of 1883 is contained in the words, " but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a debtor in any case where he had at the time of giving credit to the debtor notice of an act of bank- 7-uptcy committed by the debtor and available against him" (J). Notice of the act of bankruptcy is, therefore, the criterion ; so that where the defendant, in an action brought by the assignees of certain bankers, claimed to set off notes which he had indus- triously obtained after the bank had stopped payment, it was held that he had a right to do so, the notes having been taken before he knew of the commission of an act of bankruptcy (k). But a debtor to the firm was not allowed to set off notes which he had taken after notice that three out of four partners had committed acts of bankruptcy (l). The act of bankruptcy, too, of which the claimant had notice, must be " available," i. e., it must have been committed within three months next before the presentation of the petition on which the receiving order is made, and during the subsistence of a suflBcient debt. The mutual account ought, as a rule, to be taken down to the commencement of the bankruptcy (m), but if the act of bank- (/) rates V. Sherrington, 11 M. & (J) B. A. 1883, s. 38. ■W. 42. (A) Hawkins v. Whitten, 10 B. & C. (g) West V. Pryce, 2 Bing. 455 ; 217 ; Dickson v. Cass, 1 B. & Ad. 343. AUoway v. Steere, 10 Q. B. D. 22; See also J=bj-s<«r v. Wihon, WK. k "W . Sankey Brook Coal Co. v. Marsh, L. E. 191. 6 Ex. 185. (0 Diekson v. Cass, 1 B. & Ad. 343. {h) Ince Hall Rolling Milk Co. v. (»«) Ee Milan Tramways Co., 25 Ch. Douglas Forge Co., 8 Q. B. D. 179. D. 687 ; Me Gillespie, Hx parte Seid, 14 (t) £x parte Barmtt, L. E. 9 Ch. Q. B. D. 963. 293. 752 MERCANTILE KEMEDIES. Eemediesof rilptoy'is seoret, down to the time when the person claiming to ' set off had notice of it(M). It may he douhted whether any agreement can exclude the operation of this section (o). The effect of this provision is to confer a much more com- prehensive right of set-off than the party would otherwise have, and also to give effect to it, notwithstanding an available act of bankruptcy, if he had not notice of it. 2. Securities and Liens on the Bankrupt's Property. — There are certain cases in which a creditor is allowed to satisfy himself out of some part of the bankrupt's property on which he has obtained a security. These cases will be dealt with separately, first observing that the statute gives validity to many trans- actions entered into by or with a bankrupt before the date of the receiving order by a person dealing band fide, and without notice of a prior available act of bankruptcy {p). Executions. — To entitle a creditor to retain, as against the •trustee, the benefit of an execution issued by him against the goods or land of a debtor, he must, before the receiving order, and before notice of the presentation of a petition by or agaiast the debtor, or of the commission of any available act of bank- ruptcy by him, have completed his execution ; i.e., in the case of goods he must have seized and sold ; and in the case of land, he must have seized {q). As to what " seizure " is, there is sometimes doubt ; the delivery of land in execution under a writ of ekgit appears to be sufficient if). Although seizure and sale for any amount is an act of bank- -ruptcy (s), the creditor will be entitled to retain the benefit of his execution ; although an act of bankruptcy, the sale is valid (<). («) Elliott V. Turqumd, 7 App. Cas. MetTit, 34 W. R. 433. 79. (»•) In re Eobson, 33 Ch. D. 493. (o) Ex parte Fletcher, Be Vauglmn, 6 As to equitable executions, see In re Ch. D. 350; Ex parte Earnett, Me Dickson, 6 Morrell, 1. Deveze, L. E. 9 Ch. 293. {s) B. A. 1883, s. 4, sub-s. (1) (e). (iu) 3. A. 1883, s. 49; Ex parte («) B. A. 1883, s. 46, sub-s. (3) ; £r mider, 24 Ch. D. 339. parte Villars, Me Mogers, L. E. 9 Ch. (?) B. A. 1883, B. 45; MacTsayy. 432. BANKRUPTCY. 753 Mere notice that an available act of bankruptcy has been Remedies of committed by the debtor is enough, though the creditor may not ''^ "' have notice of the particular act relied on (u) ; but this notice must be to the person on whose account the execution was issued ; and notice to the sheriff's oflEicer in possession under an execution is not equivalent to notice to him (»). Notice, how- ever, to the solicitor, or his clerk or agent issuing, or having the conduct of the execution, is, it appears, sufficient (x). A sheriff who has seized goods, and who has before sale been served with notice of a receiving order made against the debtor, must deliver the goods to the official receiver ; and the costs of the execution wiU be a charge on them (y). If, however, the goods are sold in respect of execution on a judgment for a sum exceeding twenty pounds, the sheriff, after deducting costs, must retain the balance for fourteen days ; and if within that time he is served with notice of a bankruptcy petition by or against the debtor, and the debtor is adjudged bankrupt on that or any other petition of which the sheriff has notice, he must pay such balance to the trustee instead of to the creditor (2). The sale, as we have seen, is valid; and if no notice of a petition be served at the end of the fourteen days, the sheriff may hand over the proceeds to the creditor, who will be entitled to retain them (a), if he had not notice of any prior act of bankruptcy (6). The notice thus given should afford sufficient information to the sheriff that the person against whom the petition is presented is the execution debtor, and must be served on the sheriff or his recognized agent for such purpose (c). If, in order to prevent a seizure or a sale, the debtor pay money to («) Samuel/ v. JEaion, 10 M. & W. ()/) B. A. 1883, s. 46, sub-s. (1). 22 ; Udal v. Walton, 14 M. & W. 264 ; (s) B. A. 1883, 8. 46, sub-s. (2). Turnery. Sardcastle, 11 C. B. N. S. [a) Ex parte Villars, £e Sogers,'L.'R. 683. 9 Oh. 432 ; £x parte James, L. E,. 9 Ch. (») Eatnsay v. Eaton, supra. 609. {x) Bird V. Bass, 6 M. & Gr. 143 ; (*) Ex parte Dawes, L. E. 19 Eq. Sothwelly. Timbrell, 1 Dowl. N. S. 778 ; 438. Bike v. Stephens, 12 Q. B. 465 ; Brewin (c) Ex parte Spooner, L. R. 10 Ch. V. Briscoe, 2 E. & E. 116 ; Bennell v. 168 ; Ex parte Warren, Be Holland, 15 Stephens, 7 0. B. 987. Q. B. D. 48. 754 MERCANTILE REMEDIES. Remedies of the sheriff, with the assent of the creditor, the latter is entitled creditors. , ., , ,. ■ to it (a). The creditor may ahaiidon part of his claim, so as to avoid the operation of the section (c). The fourteen days are to he reckoned from the completion of the whole sale (/). An exsr- cution is not invalid by reason of its being an act of bankruptcy; and a purchaser in good faith of the goods under a sale by the sheriff in all cases acquires a good title against the trustee {g). The provisions as to remedies against the property of a debtor are binding on the Crown (h). Mortgages and Pledges. — A legal mortgage gives the mort- gagee a right to retain the property mortgaged until his debt is satisfied, nor can the trustee redeem without paying interest up to the time of redemption («). And an equitable mortgage by agreement, or by deposit of title deeds, is in like manner upheld in Courts of Bankruptcy (J). A mortgagee of leasehold premises is not affected by disclaimer (k). In one case, where the bankrupt, not then being insolvent or in contemplation of insolvency, had given a voluntary bond, and had afterwards deposited title deeds as a security for the amount of the bond. Vice- Chancellor Knight Bruce held, that parties who had made the bond a subject of settlement were entitled to the benefit of the deposit (/). A pledge of personal property is {d) Stock v. Solland, L. R. 9 Ex. Ex parte Signold, Ibid. 121 ; 7 Vin. 147 ; Ex parte Brooke, ReSassall, L. E. Abr. 100. As to the mode and terms 9 Ch. 301. See, however, Ex parte by and on which a mortgagee may Fearson, Be Mortimer, L. E. 8 Ch. 667. procure a sale of the property, see (e) Ex parte Sega, Re Salinger, 6 Ch. B. R. 1886, rr. 73—77. D. 332 ; Re Einks, Ex parte Berthier, (j) Ex parte Orett, 3 M. & A. 153 ; 7 Ch. D. 882; Turner v. Bridgett, 8 Ex parte Whitbread, 19 Ves. 209. But Q. B. D. 392 ; Mostyn v. Stock, 9 Q. see Ex parte Ferry, De Gex, 252 ; Ex B. D. 432. parte Rogers., 25 L. J. Bank. 41 ; Ex (/) Jones V. Farcell, 11 Q. B. D. 430. parte LittUdale, 24 L. J. Bank. 9 ; Ex (^) B. A. 1883, s. 46, snb-s. (3). parte Union Bank of Manchester, L. E. (h) B. A. 1883, s. 150; Ex parte 12 Eq. 354. Postmaster- General, 10 Ch. D. 695; {k) Ex parte Watton, IT G'ii.'D.'H% Ex parte Commissioners of Tfoods and 763. Forests, 21 Q. B. D. 380. [l) Meggison v. Forster, 2 T. & C. (i) See Ex parte Barnes, 3 Deac. 223 ; C. C. 336. BANKRUPTCY. 755 in the nature of a mortgage, and can only be redeemed by pay- Remedies of ment of the sum advanced upon it (m). Mortgages of personal ! — _ chattels are generally effected by bills of sale, which are now subject to special enactments («). Idem. — A lien, such as we have described in the preceding chapter, is available against the trustee (o) ; so is a vendor's legal lien on a thing sold but not paid for, and his right of stoppage in transitu (p) ; so also is the equitable right of a ven- dor of real estate to a lien for his unpaid purchase-money (?) against the vendee, volunteers, purchasers with notice, or persons claiming equitable interests under the vendee (r). An equitable assignment of an interest in personalty (not being a fraudulent preference) is available against the trustee. A distinction, however, must be drawn between an equitable assignment and a mere licence to seize (s). Where the agree- ment to assign does not come into existence tiU after bank- ruptcy, the creditor will get no title and be left to prove for breach of the contract to assign (t) ; but a charge on money earned before but not payable till after bankruptcy will be {<«) Bemandray v. Metcalf, Prec. Chano. 419 ; 2 Vern. 691 ; Maughan v. Sharpe, 17 C. B. N. S. 443. {») 41 &42 Viot. u. 31 ; 43 & 46 Viot. 0. 43. (o) Ex parte Vndei-wood, De Gex, 190. It would seem that a general lien on goods coming into the hands of a party before the fiat, without notice, was protected by Stat. 2 & 3 Viot. u. 29 : Bowman v. Malcolm, 1 1 M. & W. 833. Neither » security arising by seizure of bills, notes, or bonds, under 1 & 2 Vict. c. 110, nor an order binding a debt under the garnishee clause of the Common Law Procedure Act, 1854, or the Rules of Court, 1833, constitutes a lien: Holmes V. Tuttim, 5 E. & B. 65 ; Tilhwy v. Brown, 30 L. J. Q. B. 46 ; Wood v. Dunn, L. R. 1 Q. B. 77 ; 2 Q. B. 73. (/)) £x parte Chalmers, Se Edwards, L. R. 8 Ch. 289 ; Valpy v. Odkeley, 16 Q. B. 941 ; Kendal v. Marshall % Co., U Q. B. D. 336 ; Ex parte Miles, He Isaaes, 15 Q. B. D. 39. (q) Ex parte Loaring, 2 Rose, 79 Ex parte Peake, 1 Mad. 346 ; Ex parte Farkes, 1 Gr. & J. 228 ; Ex parte Dicken Buck, 115; Rose v. Watson, 33 L. J. Ch. 385. (»•) See Sugden, V. & P. Chap. 12 Blackbume v. Gregson, 1 Bro. C. C. 419. («) Hoh/royd v. Marshall, 10 H. of L. Cas. 191 ; Reeve v. Whitmore, 33 li. J. Ch. 63; Brown v. Bateman, L. R. 2 C. P. 272 ; Thompson v. Cohen, L. R. 7 Q. B. 527 ; Coh y. Kernot, L. R. 7 Q. B. 534; Clements v. Mathews, 11 Q. B. D. 808 ; Tailby v. Official Re- ceiver, 13 App. Cas. 523. [t) Collyer v. Isaacs, 19 Oh. D. 342 ; Ex parte Nichols, Re Jones, 22 Ch. D. 782. 7S6 MERCANTILE KEMEDIES. Eemediesof good (m). If the assignment is conditional, and the condition °.!Li_2;__ has not happened hefore the bankruptcy, the assignment will he defeated by that event, and will not take effect even though the condition afterwards happen (v) ; and if the condition be thp occurrence of a bankruptcy, it appears to be void as agaiast pubUe policy («). With regard to money, the rule seems to be, that it is sufiBcient to render the assignment valid if the debt assigned be not larger than the sum due from the party assigning (i/). But it would appear that a contract entered into by a bankrupt that certain of his goods should, in case of Ms bankruptcy, become the property of other persons, if they should so choose, would not be binding on his trustee, for that he cannot make a contract which would have the effect of vesting in others after his bank- ruptcy the property which on his bankruptcy had vested iu his trustee (z). The Bills of Sale Act, 1882 {a), renders a bill of sale void, as to all goods (save certaia growing crops and substituted plant and machiuery) which are not specifically described in the sche- dule thereto, or of which the grantor was not the true owner at the time of its execution. 3. Distress. — ^A landlord or other person to whom any rent is due from the bankrupt may distrain therefor either before or after the commencement of the bankruptcy (S). Debts, how- ever, entitled to preferential payment are a first charge on the goods distrained or their proceeds (see ante, p. 739). If the distress is made after the commencement of the bankruptcy, it will only be available for one year's rent due prior to the adju- [u) Mx parte Moss, Re Toward, 14 411. Q. B. D. 310. (a) Per Lord Abinyer in Tripp v. {v) Burn v. CarvaXho, 1 Ad. & E. Armitage, 4 M. & W. 687; Whitmore 883. V. Mason, 2 J. & H. 204. But see [x) See Tripp v. Armitage, 4 M. & Sawthorne v. Mwcastle and South W. 687, per Ld. Ahinger. But see Shields Rail. Co., 3 Q. B. 734, n. ; In Ex parte Wright, 2 Deac. 551. re Waugh, 4 Oh. D. 524; JSx parte (y) Crowfoot V. Gurney, 9 Biag. 372 ; Newitt, He Garrud, 16 Ch. D. 622. Tibbits Y. George, 6 Ad. & E. 107 ; (a) 45 & 46 Vict. c. 43, ss. 4, 6, 6. Mutchinson v. Seyworth, 9 Ad. & E. (*) Sect. 42 (1). 876; Walker v. Sostron, 9 M. & W. BANKRUPTCY. 757 dioation, and the landlord must prove for the surplus (c). The Remedies of rent must be a real rent {d), although it may he one reserved '. by an attornment clause in a mortgage deed {e). A distress is not liable to be restrained (/). A company with statutory powers similar to those of a landlord may distrain in the same way as a landlord under this section {g). If the distress be made before the commencement of the bankruptcy, the landlord is, subject to the provisions of the Agricultural Holdings Act, 1883 (h), entitled to six years' rent, if so much be in arrear, though the sale be made after the tenant has been adjudged a bankrupt.(i). It has been held that if the goods distrained be a stranger's, the landlord may hold them as a security for more than a year's rent ; inasmuch as the rent is not released by the bankrupt's discharge, and the bankrupt's discharge from it is merely per- sonal {k). If, too, the landlord, having made a distress, with- draw from possession of the goods upon being paid the entire rent by a person who claims them under a bill of sale, the trustee cannot sue the landlord for money had and received (/). Section VII. — Official Becdvers and Trustees. Official Receivers. — On the making of a receiving order, an Officml re- official receiver of the debtor's property (m) is, as we have seen, trust^s?"*^ (e) B. A. 1883, s. 42. See, as to {g) JEx parte Birmingham Gas Co., rent accruing due aftm- the adjudioa- Re Fanshaw, supra ; Ex parte Mar- tian, Ex parte Sale, 1 Oh. D. 286. rison, Re Peahe, 13 Q. B. D. 753 ; and (d) Ex parte Williams, Re Thompson, see Ex parte Bill, Re Roberts, 6 Ch. D. 7 Ch. D. 138 ; Re Stockton Iron Eur- 63. nace Co., 10 Ch. D. 335; Ex parte (h) 46 & 47 Vict. c. 61, s. 44. Jackson, Re Bowes, 14 Ch. D. 725; Ex {%) ExparteBagl^, 22L. J .Ba,nk.2e. parte Voisey, Ee Knight, 21 Oh. D. 442. [k] Brocklehurst v. Eawe, 7 E. & B. («) Ex parte Pannett, Re Kitehin, 16 176. See Newton v. Scott, 9 M. & W. Ch. D. 226; Ex parte Queen's Benejit 434; 10 M. & W. 471. The words, Building Society, Re Threlfall, 16 Ch. D. too, of B. A. 1883, s. 42, are limited 274 ; Ex parte Voisey, Re Knight, 21 to the goods of the bankrupt. Ch. D. 442 ; In re Tryman's Estate, (l) Lackington t. Elliott, 7 M. & Or. 38 Ch. D. 468. 538. (/) Ex parte Birmingham Gas Co., {m) B. A. 1883, s. 9. Re Fanshaw, L. E. II Eq. 615. 758 MERCANTILE REMEDIES. Official re- appointed. Official receivers are officers of, and appointed by, traltees*" the Board of Trade (»), who may also appoint deputies (o). Their duties relate both to the conduct of the debtor and the administration of his estate (^). As regards the debtor, the official receiver is to investigate his conduct, and report thereon to the Court, and to take part in his public examination, and in the prosecution of a fraudulent debtor (g'). As regards the debtor's estate, the official receiver's duty is to act as trustee pending the appointment of trustee during any vacancy in the office of trustee ; and, in small bankruptcies («•), to summon and preside at the first meeting, to issue proxies, to report to the creditors any proposal made by the debtor, and to advertise the receiving order, &c. (s). He has the powers of a receiver of the High Court. He is bound, as far as possible, to consult the wishes of creditors (t). He must assist the debtor in preparing his statements of affairs (m), and may, if he see fit, appoint a special manager of the estate, and authorize bim to raise money (v) , and apply to the Court without formality for directions (lo) . The costs and expenses to which he is put will be provided for out of the debtor's estate (x). He may make an allowance out of the estate for the subsistence of the debtor and his family (j^). After adjudication, the official receiver possesses the powers of a trustee until one is appointed, and may, under s. 56 (1), sell any portion of the debtor's pro- perty (z). Having seen towards the payment of what debts the bank- rupt's property is applicable, let us inquire by whom it is to be collected, and in whom vested, for the purpose of such («) B. A. 1883, B. 66 ; B. R. 1886, («) B. R. 1886, rr. 324, 326 ; B. A. i.. 321. 1883, s. 70, sub-s. 2. (o) B. A. 1883, a. 67; B. R. 1886, (v) B. A. 1883, ss. 12, 70, sut-s. i-. 329. 1 (b). The official receiver has oom- (p) B. A. 1883, s. 68. plete discretion as to the appointment: (?) B. A. 1883, s. 69. Ite Whittaker, 50 L. T. 510. \r) B. A. 1883, s. 70, sub-sa. 1 (a) {■) Sopkinson v. Zovering, 11 Q. B. Cooke, Re Strachan, i Oh. D. 123 ; Re D, 92. SalletVs Estate, 13 Ch. D. 696 ; Re («) Ex parte Isherwood, Re Knight, Blakeway and Thomas, Ex parte Ran- 22 Ch. D. 384 ; Ex parte Amal, Re hart, 52 L. T. 630 ; Karris t. Truman Wiiton, 24 Oh. D. 26 ; Ex parte Good, ^ Co., 9 Q. B. D. 264. Re Salkeld, 13 Q. B. D. 731. (y) Whiicomh v. Jacob, 1 Salk. 160 ; [t) B. A. 1883, s. 50, suh-s. 3. Scott v. Surnam, Wils. 400; Frith t. (m) B. a. 1883, s. 44, snb-s. 1. Cartland, 34 L. J. Oh. 301 ; Pennell v. Ix) Ex parte Gennys, Mont. & M'A. J)efeU, 23 L. J. Ch. 115; Taylor v. 268 ; Carvalko v. Sum, 4 B. & Ad. 382 ; Flumer, 3 M. & S. 562. 768 MEKCANTII.E REMEDIES. Official re- Took of Trade, Apparel, and Bedding. — By sect. 44 (2), are trultees." excepted, " the tools (if any) of his trade and the necessary wearing apparel and bedding of himself, his wife and children, to a value, inclusive of tools and apparel and hedding, not exceeding twenty pounds in the whole." Property in Right of Wife. — Whatever beneficial interest the bankrupt has in his wife's property goes to his trustee (a). But property which she possesses as a sole trader by the custom of London (A), or which is settled to her separate use (c), or falls within the provisions of the Married Women's Property Act, 1882, does not come within that denomination. As the trustee takes the same beneficial interest which the bankrupt possessed, it follows that if the bankrupt die before he has reduced the wife's choses in action into possession, the wife will take those by survivorship {d). The right to bring an action for the recovery of real property in right of the wife passes to the trus- tee, and he may join her in an action for the recovery of damages done to her personal property before her marriage (e). If the trustee be able to obtain the wife's property at law, equity will not interfere with the legal title, but if he be obhged to apply to equity for its assistance, the Court will impose terms upon him, by stipulating that a provision be made for her out of the fund(/). This equity is personal to her; she may, if she think fit, waive it, and defeat her children, but if she do not, it will enure for their benefit also {g). [a) Mitchell v. Hughes, 6 Bing. 689; Briwy Buildings Co., 7 Ch. D. 48. Caunt V. Ward, 7 Bing. 608; Fringle («) Richhell v. Alexander, 10 C. B. T. Sodson, 3 Ves. 617; Sobinson v. N. S. 324; Mitchell v. SugJies, 6 Bing. Taylor, 2 Bro. C. C. 589 ; J)oe d. Shaw 689 ; Smith v. Oofm, 2 H. Bl. 444. T. Steward, 1 Ad. & E. 300. (/) rForrall \. Marlar, 1 Cox, 153; (A) Zavie v. Phillips, 3 Burr. 1776. Burdon v. Bean, 2 Ves. jun. 607 ; (c) Vandenanleer v. JDesbrough, 2 Brown v. Clarh, 3 Ves. 166 ; Lumh v. Vem. 96 ; Bennet y. Davis, 2 P. Milnes, 5 Ves. 517 ; Carr v. Tat/lor, Wms. 316; Famham v. Surst, 8 M. 10 Ves. 574; BliboMle v. Montolieu, & W. 743. 5 Ves. 737 ; Basevi v. Serra, 3 Meriv. {d) Mitford V. Mitford, 9 Ves. 87 ; 674 ; Scott v. Spashett, 21 L. J. Chsmo. Sornsby v. Lee, 2 Madd. 16 ; Purdew 349 ; Zloyd v. Mason, 5 Hare, 149 ; In T. Jackson, 1 Euss. 1 ; Slierrington v. re Cutler's Trust, 20 L. J. Chaoc. 504; Tates, 12 M. & W. 855; Pierce v. Ex parte Norton, ib Ij. 3 . Bank. 43. Thornley, 2 Sim. 167 ; Nicholson v. (g) Murray v. Lord Elibanh, 10 Ves. 13AXKRUPT0Y. 769 Future Property. — The trastee takes not merely the bank- Official re- rupt's present property, but also aU such " as may be acquired trustees. by or devolve on him before his discharge " (A). As to the time from which the bankrupt's property vests in liis trustee, although the trustee has no title till his appoint- ment, when he is appointed, his title relates back to the com- mencement of the bankruptcy ; that is, to the time of the act of bankruptcy being committed on which the receiving order is made, or if the bankrupt is proved to have committed more acts of bankruptcy than one, to the first act of bankruptcy proved to have been committed within three months next pre- ceding the date of the presentation of the petition («). Subject, however, to the provisions in the act relating to executions, settlements and fraudulent preferences (A), there are certain transactions which, although within the period of relation back, are protected and valid as against the trustee. These are: — any payment by the bankrupt to any of his creditors ; any payment or delivery to the bankrupt ; any conveyance or assignment by, or contract, dealing, or transaction by or with the bankrupt for valuable consideration ; provided that the payment, delivery, conveyance, &o., takes place before the receiving order, and before the party to the transaction, other than the debtor, has notice of any prior available act of bankruptcy {I). With regard to payments, it was held that when A. lent the bankrupt his acceptance, and afterwards purchased four horses from him, agreeing that their price should be set off against the amount of the acceptance, this was not a payment {m) ; nor was the loan of a sum of money to the bankrupt upon a mortgage of at pp. 88 and 91 ; Scriven v. Tapley, 2 («) B. A. 1883, s. 43. Eden, 337; Lloyd y. Williams, 1 Madd. {k) B. A. 1883, ss. 45, 47, 48. 460. But see Fenner v. Tmjhr, 1 Sim. [l) B. A. 1883, 8. 49. 169 ; Steinmetz v. Salthin, 1 Gr. & J. [m) Carter v. Sreton, 6 Bing. 617; Oi; £owe v. Jackson, 2 Diok. 604; WilkinsY. Casey, 7 T. E. 711; Bishop Carters. Taggart, 21 L. J. Chano. 216. v. Orawshay, 3 B. & C. 415; Copland ■ (A) B. A. 1883, B. 44. :Ex parte v. Stein, 8 T. E. 199; Hurst v. Gwen- Ansell, 19 Ves. 208; Be Birch's Legacy, nap, 2 Stark. 306. 2 Kay & J. 328. 770 MERCANTILE REMEDIES. Official re- Ms property {q) . A payment may be a fraudulent preference [r) trustees. and not made in good faith ■within this clause, though it was not "~ the intention of the bankrupt to benefit the person to whom it ■was made, but some other person, e.g., relieving an estate settled on his wife from incumbrance, or exonerating a surety (s). "With regard to conveyances, it was held, under 6 Greo. 4, e. 16, s. 81, that a voluntary transfer, which was iu itself an act of bank- ruptcy, could not be considered bona fide so as to be pro- tected (^). The most extensive exception to the general rule is that which comprises any contract, dealing or transaction by or with the bankrupt for a valuable consideration. These terms are extremely large (m). The protection afforded by these provisions, it will be observed, is upon the condition that the person so dealing had not, at the time, notice of any prior available act of bankruptcy ; and under this section the onus of proof is on the person relying on the want of notice («). In the first place, therefore, the person whose interest is to be affected must have this notice. Now, it has been held that, ia the case of an execution, it must be brought home to the execu- tion creditor or his solicitor [y] employed ia issuing it, and that (q) CannoM v. Denew, 10 Bing. 292 ; (f) Sevan v. Nunn, 9 Bing. 107. Crowfoot V. london Bock Co., i Tyr. See Sail v. Wallace, 7 M. & "W. 356 ; 986 ; Wright v. Fearnley, 5 Bing. N. C. Belcher v. Magnay, 12 M. & W. 102. 89 ; Fearnley v. Wright (in error), 6 («) Krehl v. Great Central Gas Co., Bing. N. 0. 446. See farther as to L. K. 5 Ex. 289, 295. See Tomig v. the meaning of payment, Ferrall v. Mope, 2 Exoh. 105; Brewin v. Short, Alexander, 1 Dowl. 132; Cannan v. 5E. &B. 227; Ex parte Norton,'L.'R. Wood, 2 M. & "W. 465. See Bowes y. 16 Eq. 397. Foster, 2 H. & N. 779 ; SHIy. Famell, (a) Fx parte Schulte, Re MatmU, 9 B. & 0. 45. See Cash v. Yoimg, 2 L. R. 9 Ch. 409 ; Fx parte CaHwright, B. & C. 413; Willis t. Bamk of Fng- Se Joy, 44 L. T. 883 ; Fx parte Memll, land, 4 Ad. & E. 21 ; Shaw v. Batley, Re TolUtnache, 1? Q. B. D. 727. 4 B. & Ad. 801 ; Tope v. Bockin, 7 B. (y) Bird v. Bass, 6 M. & G. 143 ; & C. 101 ; Kynaston v. Crouch, 14 M. Green v. Steer, 1 Q. B. 707 ; Fennell & "W. 266 ; Giison v. Muskett, 4 M. & v. Stephens, 7 C. B. 987 ; Rothwell v. <>. 170. Timhrell, 1 Dowl. N. S. 526 ; Ex parte (r) See Groom v. Watts, 4 Exoh. Schulte, Re Matanle, supra; Pike T. 727. Stephens, 12 Q. B. 465. (s) Marshall v. lamb, 5 Q. B. 116. BANKRUPTCY. 771 notice to the sheriff or sheriff's officer in possession is insuffi- Official re- oient(2). It has also heen questioned whether notice to the trustees, bailiff of a landlord in possession under a distress for rent would be enough (a). Secondly, there must be notice of an act of bankruptcy prior to the transaction (b), not simply of facts which possibly may not constitute it (c) . The word " notice " here means knowledge, and not the mere means of knowledge; therefore the bare receipt of a letter containing a notice, which the party has not read, does not satisfy the statute (d). Notice may be given by telegram (e). Thirdly, the notice must be of a prior act of bankruptcy by such bankrupt committed. A knowledge, therefore, that the trader was in embarrassed circumstances, if a sale were bond fide, will not invalidate it (./"). Notice that a trader has exe- cuted a bill of sale of all his property for the benefit of his creditors, is enough (g'). But it is not necessary that there shoidd be notice of any specific act ; and, therefore, a general notice (h) that the trader has committed an act of bankruptcy, given to the party, if true, will avoid any such subsequent dealing. It has also been held that a person having notice of a previous act of bankruptcy, obtains no title by an assignment from the sheriff under an execution by a creditor who had no notice (i). Fourthly, the notice must be of a prior act of bankruptcy available for a bankruptcy petition at the date of the pre- («) Ramsey t. Eaton, 10 M. & W. {e) Mx parte Langley, Re Bishop, 13 22; Brewin v. Briscoe, 2 E. & E. 116; Ch. D. 110. Ex parte Schulte, Ke Matanle, L. E. 9 (/) Tucker v. Barrow, M. & M. 137 ; Ch. 409. Spratt v. Eobhouse, i Bing. 173. (ffl) Lackington v. Elliott, 7 M. & G. (g) Lindon v. Sharpe, 6 M. & Gr. 639. 893 ; B. A. 1883, o. 6, sub-s. 1 ; Eeam (J) Ex parte Schulte, Re Matanle, v. Sallam, supra, supra. (h) Socking v. Acraman, 12 M. & (c) Evans v. Hallam, L. R. 6 Q. B. "W. 170 ; Ramsey y. Eaton, 10 M. & 713 ; Ex parte Snowball, Re Douglas, W. 22 ; Udal v. Walton, 14 M. & "W. L. R. 7 Ch. 534. Notice that a peti- 2.54 ; Hope v. Meek, 10 Exch. 829 ; tiou has been filed is sufficient: Lucas Turner v. Sardoastle, 11 0. B. N. S. V. Bicker, 6 Q. B. D. 84. 683. (rf) Bird V. Bass, 6 M. & G. 143. (i) Fawcett v. Feame, 6 Q. B. 20. 772 MEKCANTILE REMEDIES. OfBoialre- sentation of the petition on which the receiving order is ceivers and j / \ trustees. ^a^e {m). ' Where none of these statutory exceptions apply, the trustee takes the bankrupt's property by relation back to the com- mencement of the bankruptcy, but the relation wiLl not be carried back to an act of bankruptcy committed more than three months before the date of presentation of the petition, nor will it be available against the Crown (»). Money received by the solicitor of a petitioning creditor from the debtor pendiug proceedings, and by him handed over to his client, must be refunded to the trustee by the solicitor; but money paid to a solicitor by the debtor for the expenses of opposing bankruptcy proceedings (o), need not be so refunded. Where one member of a firm has become bankrupt, he can- not afterwBrrds transfer the partnership effects, or pay partner- ship debts out of the joint funds to a creditor with notice of his bankruptcy (p). TPTiat Property other than the Bankrupfs passes to his Trustee. — Certain property which could not have been retained by the bankrupt himself, or could not have been claimed by him, had he contiaued solvent, may become vested iu his trustee upon his bankruptcy. Thus, there will pass to the trustee all goods being, at the commencement of the bankruptcy, in the possession, order or disposition of the bankrupt, ia his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof, except things in action other than debts due or growing due to the bankrupt in the course of his trade or business, which are not deemed goods within this provision ($■). It will be observed that the operation of this provision is confined to cases in which there is a reputed ownership of goods. (tn) B. A. 1883, s. 168, sub-s. 1. (p) Thomaaon v. Frere, 10 East, 418; («) B. A. 1883, ss. 30, 43, 150 ; Ex Graven v. Bdmondson, 6 Bing. 734 ; parte Postmaster- General, Re Bonliam, £urt y. Moult, 1 Cr. & M. 625 ; New 10 Oh. D. 596. Quebrada Go. v. Garr, L. K. 4 0. P. (o) Ex parte Edwards, Re Chapman, 651. 13 Q. B. D. 747 ; Re Sinclair, Exparte (y) B. A. 1883, s. 44 (iii.). Fayne, 16 Q. B. D. 616. BANKRtJPTCY. /(•J Such are ships (r), furniture («), utensils in trade (^) (unless Official re- in., ij_»i ij_« _p'j_j_ e ceivers and such lurniture and utensils are let m coniomuty to a usage oi truatees. trade («<)), and stock («) and shares in a newspaper (y). Bonds, debentures, hills of exchange and promissory notes (s), policies of insurance (a), dehts {b), and shares in companies (c), are choses in action within the terms of the proviso, unless they constitute dehts due (d) or growing due to the bankrupt ia the way of his trade or busiaess, they will not vest in the trustee. Chattel interests in real property, fixtures, or shares in a com- pany seised of real estate, have been held not to come within these words (e). The section, it will be observed, only extends to goods which are in the bankrupt's possession, order or disposition in his trade or business (/). (r) StepTiens v. Sole, cited 1 Ves. sen. 352 ; & parte J3um, 1 J. & W. 378. But see in case of British ships, 1 7 & 18 Vict. c. 104, BS. 72, 80, and 81, in Appendix ; and Swaimton v. Clay, 32 L. J. ChaDO. 503. (a) Lingham v. Bigga, 1 B. & P. 82. (J) Lingard t. Messitet; 1 B. & C. 808 ; Sinclair v. Stevemon, 2 Bing. 514; Trappea v. Sarter, 2 Cr. & M. 153. See Coombs v. Beaumont, 6 B. & Ad. 72. («) Horn V. Baker, 9 East, 215, at p. 239 ; Lingham v. Biggs, 1 B. & P. lit p. 88 (furniture in furnished house) ; Storer v. Hunter, 3 B. & 0. 368 ; Spac/e- inan v. Miller, 12 0. B. N. S. 659 ; In re Jensen, 4 Morrell, 1 (custom to hire vans) ; Orawcour v. Salter, 18 Cb. D. 30 (custom to hire furniture) ; JUx parte Turquand, Be Farker, 14 Q. B. D. 636 ; but see Hx parte Brooks, Be Fowler, ■13 Oh. D. 261. («) Ex parte Bichardson, Buck, 480. [y) Longman v. Tripp, 2 B. & P. N. E. 67. [z] Homilower v. Proud, 2 B. & Aid. 327 ; Re Pryee, Ex parte Eensherg, i Oh. D. 685 ; Ex parte Ibbetson, Re Moore, 8 Oh. D. 619 ; Re Bainr bridge, Ex parte Fletcher, 8 Ch. D. 218. (a) Falkener v. Case, 1 Bro. C. 0. 125; Edwards v. Scott, 1 M. & G. 962; West t. Reid, 2 Hare, 249; Thompson v. Speirs, 13 Sim. 469 ; //( re Bromley, Id. 475 ; Oreen y. Ingham, L. E. 2 0. P. 625. (i) Cooke T. Hemming, L. R. 3 0. P. 334. (ff) Colonial Bank v. Whinney, 11 App. Gas. 426. {d) Ex parte Kemp, Re Fastnedge, L. E. 9 Oh. 383 ; Re Pryee, Ex parte Remberg, supra. (e) Ryall v. Rolle, 1 Atk. 165 ; Horn V. Baker, 9 East, 216 ; Ex parte Vauxhall Bridge Co., 1 G. & J. 101 ; Clark V. Crownshaw, 3 B. & Ad. 804 ; Hubbard v. Bagshaw, 4 Sim. 326 ; Trappes v. Harter, 3 Tyr. 603 ; Coombs V. Beaumont, 5 B. & Ad. 72. See also Boydell v. M'Michael, 1 C. M. & E. 177 ; Ex parte Barclay, 5 De G. M. & G. 403, 410; Thompsm v. Pettit, 10 Q. B. 101 ; Hitchman v. Walton, 4 M. & W. 409 ; Ex parte Searth, 1 M. D. & De G. 240 ; Ex parte Heathcote, 2 M. B. &DeG. 711; WMtmore y. Empson, 23 Beav. 313 ; Climie y. Wood, L. E. 3. Ex. 267; 4 Ex. 328; Ex parte Ast- bury, L. E. 4 Ch. 630. But see Water- fall V. Penistone, 6 E. & B. 876. {/) Ex parte Nottingham Bank, Re 774 MERCANTrr-E REMEDIES. Official re- The goods must be in the possession, order, or disposition of trustees. the bankrupt alone ijg), and that -with the consent and permission, express or implied, of the true owner (A). And so the property of infants who cannot consent is not within this clause («) ; nor is it enough that they were in the possession of the bankrupt with the consent of a person who himself held them only by the sufferance of the true owner {k) . But goods belonging to the assignees under a former bankruptcy, remaining in the posses- sion of the bankrupt at the time of a subsequent one, are within this section Q). Constructive possession of the bankrupt how- ever — for instance, that of a servant — is sufficient to make the section apply (w). The wrongful seizure of the goods by a wrongdoer would seem sufficient to take the goods out of the possession, order, or disposition of the bankrupt [n). Moreover, such consent and permission, together with the possession of the bankrupt, must continue up to the commencement of the bank- ruptcy. The circumstances must also be such that the bankrupt is the reputed, and not the real, owner of the goods, and the real owner must consent to the apparent ownership as such. There- fore, goods in the possession of an ostensible partner (o) of the bankrupt, under a purchase by him, which the vendors subse- quently to the act of bankruptcy discovered to have been JenJdnson, 13 Q. B. D. 441 ; Mx parte (i) Viner v. Oadell, 3 Esp. 88. McGeorge, 20 Ch. D. 697 ; Colonial [k] Fraser v. Swansea Canal Co., 1 JBank v. WMnney, 30 Ch. D. 261, at Ad. & E. 354, But see In re Thomas, pp. 274, 281 (reversed on other points, 1 Ph. 159. 11 App. Cas. 426) ; Ex parte Sully, Re [l) Butler v. Eobson, 5 Bing. N. C. 14 Q. B. D. 950. 128. See He Sambone, 3 Jur. N. S. (g) Hx parte Dorman, Be Lake, L. E.. 837 Ch. 8 Ch. 51 ; Ex parte Fletcher, He Bain- (m) Fx parte Bolland, Se Gatehouse, bridge, 8 Ch. D. 218. 24 L. T. 335 ; Fx parte Soy, Ze Sil- (h) Ex parte Richardson, Buck, 480 ; lence, 7 Ch. D. 70 ; Somsly v. Miller, Ex parte Sale, Buck, 365 ; Re Rawbone, 28 L. J. Q. B. 99 ; Servey y. Liddiard, 3 Jur. N. S. 837 Ch. ; Ex parte Union 1 Stark. 123. Bank of Manchester, L. R. 12 Eq, 354 ; («) Meggy v. Imperial Discount Co., Re Bankhead's Trust, 2 K. & J. 500 ; 3 Q. B. D. 711, at p. 716. Ex parte Cox, Re Reed, 1 Oh. D. 302. (o) Reynolds v. Bowley, L. R. 2 Q. B. See Fx parte Hayman, Re Pulsford, 8 474 ; Ex parte Socman, Re Pulsford, 8 Oh. D. 11 ; Reynolds v. Bowley, L. B. Oh. D. 11. 2 Q. B. 474. BANKRITFTCY. 775 fraudulent, and in consequence annulled, wiU not pass to the Official re- , , - V ceivers and trustee {p). trustees. The principal difficulty in deciding questions on this clause is that of ascertaining whether the bankrupt was or was not reputed owner, and this is a question of fact ; nor is it easy to lay down rules for its solution. Where the bankrupt has once been the real owner of the property in question, the mere fact of possession may raise a presumption that he continues in pos- session as reputed owner. But where the bankrupt has never been the real owner, possession may not of itself show him to be reputed owner; some additional evidence may be re- quisite for that purpose (g'). A servant's possession of goods has been held to be that of his master for the purposes of this clause (r) ; a carrier's that of his employer (s) ; and a factor's that of the principal, unless the relationship be noto- rious (^). But the pawnee's is not that of the pawnor (m). Where the purchaser transferred his purchase to a particular bin in the vendor's cellar, sealed it, and had an entry made in the vendor's books, the statute was held not to apply (x) ; but it was otherwise where' he only marked the goods with his initials (y). A symbolical delivery will be sufficient to take the case out of this clause, if, from the nature of the goods, no other can be made (z) ; and so will the taking pos- session of a part (a). The usage of trade is sometimes of im- portance, and if the bankrupt's possession of another person's goods be consistent with such usage, they may be exempted from the operation of this clause, under circumstances which (p) Load V. Green, 15 M. & W. 216 ; 10 Ch. D. 566. Holdernesa v. Rankin, 2 De Gr. F. & («) Greening v. Clark, 4 B. & C. 316. J. 258; ^»»«Av. J«■) B. E,. 1886, r. 232. (s) B. A. 1883, s. 58, sulj-ss. (4) and (5). [t) B. R. 1886, r. 234. (m) B. a. 1883, s. 59. BANKRUPTCY. 779 opportunity of establishing their debts, and also for undeter- Dividend mined and disputed claims (m). Any creditor who has not proved . \- hefore dividend will be entitled to the amount out of any money in hand, but he cannot disturb the distribution of any dividend which has been declared (x). Creditors will have notice of the final dividend (.y) when the property has been realized. No action lies for a dividend ; the remedy is by application to the Court (z). At least twice a year the trustee must submit his accounts to the Board of Trade for audit (a), and will have to submit, also, an annual statement of the proceedings in the bankruptcy (5). Section X. — Small Bankruptcies and Adminisf ration of Estates of deceased Insolvents. Where the Court is satisfied, or the official receiver reports. Small bank- that the estate of the debtor is not likely to exceed in value administra- 300/., the Court will make an order for summary administra- of'deoeaTed'^^ tion (c). The official receiver is trustee, unless the creditors insolvents. otherwise determine, and there is no committee of inspec- tion. Powers are also given to County Courts, in the case of a judgment-debtor whose whole indebtedness does not ex- ceed 50/., to make orders for the administration of his estate in Heu of an order for payment by instalments (d). The estates of deceased insolvents may also be administered by the Court on petition by any creditor whose debt would have been sufficient to support a bankruptcy petition had the debtor been alive (e) ; and all the provisions of Part III. of the Bankruptcy Act shall, so far as applicable, apply to such an administration («) B. A. 1883, s. 60. (i) B. A. 1883, s. 81. {x) B. A. 1883, s. 61. (c) B. A. 1883, s. 121 ; B. E. 1886, iy) B. A. 1883, s. 62. rr. 272, 273. («) B. A. 1883, 8. 63. See Se Fi-ager, W B. A. 1883, 8. 122. Special Mx parte Societi Cockerill, 3 Ch. D. 116 ; rules are provided under this section. £x parte Carter, Be Ware, 8 Ch. D. [e] B. A. 1883, s. 125 ; B. E. 1886, 731. As to unclaimed and undistri- rr. 274 — 279 ; Bx parte May, 13 Q. B. bnted dividends, see sect. 162. D. 552 ; Sings v. Tfeaver, 29 Q. B. D. («) B. A. 1883, s. 78 ; B. E. 1886, 236. rr. 289—291. VOL. II. — S. 3 F 780 MERCANTILE REMEDIES. Small bank- order. Suoli provisions do not include those relating to the admimstra- property of persons other than the hankrupt ; for example, of'deceated ^^ ^ect. 47, relating to the avoidance of voluntary settlement (/). insolrents. ' Section XI. — Consequences to Debtor himself — Examination — Punishmen tfor Misconduct — A llowance — Surplus. Consequences It has been explained that at any time after the maJdng of a to debtor . . ^ ' i . . himself, &c. receiving order the Court may order the examination of the dehtor or his wife touching his dealings or property, and the production, of documents relating thereto {g). If he refuses to answer, the registrar will report such refusal to the judge who will deal with the matter as if the default had been made in answering before him (A). It wUl be no ground for a debtor to refuse to answer any question relating to his property that the answer would tend to criminate him («). The Court may also, after a receiving order has been made, order a debtor's letters to be re-directed to the official receiver or trustee {j). A debtor may be arrested and his papers seized if, after the issue of a bankruptcy notice . or presentation of a petition, it appears probable to the Court that he will abscond; or if after pre- sentation of a petition it appears probable that he will remove, conceal, or destroy any of his goods ; or if, after service of a petition on him or the mating of a receiving order, he removes goods above the value of 51. without leave ; or if without good cause he fails to attend any examination ordered by the Court (/e). The debtor is bound to assist in every way in the discovery and realization of his property ; and if he fails to do so, he will be guilty of a contempt of Court {}). There are besides severe punishments which may be inflicted on him for misdemeanours in neglecting to make the proper (/) Moc parte Official Receiver, In re (i) Ex pa/rte SchofieU, Me Frith, 6 Gould, i Morrell, 202. Ch. D. 230. (i?) B. A. 1883, s. 27 ; Seg. v. County (J) B. A. 1883, s. 26. Court of Surrey, 13 Q. B. D. 963. (A) B. A. 1883, a. 25. (A) B. R. 1886, r. 88. [l) B. A. 1883, s. 24. BANKRUPTCY. 781 disclosures, as well as for fraudulent and dishonest conduct, Consequences either after his bankruptcy or within a limited period hefore the himeelf, &c. presentation of the petition, which are enumerated in sects. 11, 12, and 13, of the Debtors Act, 1869 (32 & 33 Vict. c. 62), which enacts — Sect n. "Any person adjudged bankrupt, and any person whose affairs are liquidated by arrangement in pursuance of the Bankruptcy Act, 1869, shall, in each of the cases following, be deemed guilty of a misdemeanour, and on conviction thereof shall be liable to be imprisoned for any time not exceeding two years, with or without hard labour ; that is to say, (1.) "If he does not, to the best of his knowledge and belief, fully and truly discover to the trustee administering his estate for the benefit of his creditors all his property (m), real and personal, and how, and to whom, and for what consideration, and when he disposed of any part thereof, except such part as has been disposed of in the ordinary way of his trade, if any, or laid out in the ordinary ex- pense of his family, unless the jury is satisfied that he had no intent to defraud : (2.) " If he does not deliver up to such trustee, or as he directs, all such part of his real and personal property as is in his custody or under his control, and which he is required by law to deHver up, unless the jury is satisfied that he had no intent to defraud : (3.) "If he does not deliver up to such trustee, or as he directs, aU books, documents, papers, and writings in his custody or imder his control relating to his property or affairs, unless the jiu'y is satisfied that he had no intent to defraud : (4.) "If after the presentation of a bankruptcy petition [by or («) ] against him or the commencement of the Hquida- tion, or within four months next before such presentation or commencement, he conceals any part of his property (o) to the value of ten pounds or upwards, or conceals any debt due to or from him, imless the jury is satisfied that he had no intent to defraud : (5.) " If after the presentation of a bankruptcy petition [by or (») ] against him (w) or the commencement of the (»») Xeff. V. Michell, 43 L. T. 572. (o) Se;/. v. Creese, L. E. 2 C. C. R. («) See B. A. 1883, s. 163 (1). 105. 3f2 783 MERCANTILE REMEDIES. Consequences liquidation, or within four months next before'jsuch pre- to 'i^''*°'\ sentation or commencement, he fraudulently removes any part of his property of the value of ten pounds or upwards : (6.) " If he makes any material omission in any statement relat- ing to his affairs, unless the jury is satisfied that he had no intent to defraud : (7.) " If, knowing or believing that a false debt has been proved by any person imder the bankruptcy or liquidation, he fail for the period of a month to inform such trustee as aforesaid thereof : (8.) "If after the presentation of a bankruptcy petition [by or (ra) ] against him or the commencement of the liquida- tion he prevents the production of any book, document, paper, or writing, affecting or relating to his property or affairs, tmless the jury is satisfied that he had no intent to conceal the state of his affairs or to defeat the law : (9.) " If after the presentation of a bankruptcy petition [by or (n) ] against him or the commencement of the liquida- tion, or -within four months next before such presentation or commencement, he conceals, destroys, mutilates, or falsifies, or is privy to the concealment, destruction, mutilation, or falsification of any book or document affect- ing or relating to his property or affairs, unless the jiiry is satisfied that he had no intent to conceal the state of his affairs or to defeat the law : (10.) "If after the presentation of a bankruptcy petition [by or (w) J against him or the commencement of the liquida- tion, or within four months next before such presentation or commencement, he makes or is privy to the making of any false entry in any book or document affecting or relating to his property or affairs, unless the jury is satis- fied that he had no intent to conceal the state of his affairs or to defeat the law : (11.) "If after the presentation of a bankruptcy petition [by or (n) ] against him or the commencement "of the liquida- tion, or within four months next before such presentation or commencement, he fraudulently parts with, alters, or makes any omission, or is privy to the fraudulently parting with, altering, or making any omission in any document affecting or relating to his property or affairs : (12.) "If after the presentation of a bankruptcy petition [by or («) ] against him or the commencement of the liquida- tion, or at any meeting of his creditors within four («) See B. A. 1883, s. 163 (1). liAXKKUPTCY. 783 months next before such presentation or commencement, Consequences he attempts to account for any part of his property by '"? ,f°\ fictitious losses or expenses : '- (13.) " If within four months next before the presentation of a bankruptcy petition against him or the commencement of the liquidation, he, by any false representation or other fraud, has obtained any property on credit and has not paid for the same : (14.) " If within four months next before the presentation of a bankruptcy petition against him or the commencement of the liquidation, he, being a trader (o), obtains, under the false pretence of carrying on business and dealing in the ordinary way of his trade, any property on credit and has not paid for the same, unless the jury is satisfied that he had no intent to defraud : (15.) " If within four months next before the presentation of a bankruptcy petition against him or the commencement of the liquidation, he, being a trader, pawns, pledges, or disposes of otherwise than in the ordinary way of his trade, any property which he has obtained on credit and • has not paid for, unless the jury is satisfied that he had no intent to defraud : (16.) "If he is guilty of any false representation or other fraud for the purpose of obtaining the consent of his creditors or any of them to any agreement with reference to his affairs or his bankruptcy or liquidation." Sect. 12. " If any person who is adjudged a bankrupt or has his affairs liquidated by arrangement after the presentation of a bank- ruptcy petition against him or the commencement of the liquidation, or within four months before such presentation or commencement, quits England and takes with him, or attempts or makes prepara- tion for quitting England and for taking with him, any part of his property to the amount of twenty pounds or upwards, which ought by law to be divided amongst his creditors, he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of felony, punishable with imprisonment for a time not exceeding two years, with or without hard labour." Sect. 13. "Any person shall in each of the cases following be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to be imprisoned for any time not exceeding one year, with or without hard labour ; that is to say, (1.) "If in incurring any debt or liability he has obtained credit under false pretences, or by means of any other fraud : (o) Sect. 163 (2). 784 MEKCANTILE REMEDIES. Consequences (2.) " If lie has, with, intent to defraud his creditors, or any of himsdf "i&o them, made or caused to be made any gift, delivery, or transfer of or any charge on his property : (3.) "If he has, with intent to defraud his creditors, con- cealed or removed any part of his property since or within two months before the date of any unsatisfied judgment or order for payment of money obtained against him." If an undischarged bankrupt obtains credit to the extent of 201. or upwards without informing the person from whom he obtains it that he is an undischarged bankrupt, he will be guilty of a misdemeanor and punishable as for a misdemeanor under the Debtors Act, 1869 (l). The above provisions of the Debtors Act will be applicable to any person whether a trader or not, against whom a receiving order has been made on a petition presented either by or against him (m) . The Court may commit for trial («) ; and the public prose- cutor will act where the Court orders a prosecution (o). An order of discharge, or the acceptance of a composition or scheme, will not relieve the debtor from liability to prosecution for a criminal offence (p). The powers under the Debtors Act, 1869 {q), formerly vested ia the Superior Courts, of committing to prison for default in payment of a judgment debt, are now vested in the judge to whom bankruptcy business is assigned (>-) . That Act, by sect. 4, abolished imprisonment for debt (s) ; but by sect. 5 enacted that — "Any Court may commit to prison for a term not exceeding six {I) B. A. 1883, s. 31. or sum in the nature of a penalty, (ot) B. a. 1883,' s. 163. other than a penalty in respect of any (rt) B. A. 1883, s. 165. contract: (2.) Default in payment of (o) B. A. 1883, s. 166. See sect. 164, any sum recoverable summarily before and the Debtors Act, 1869, o. 16. a justice or justices of the peace: (3.) (p) B. A. 1883, s. 167. Default by a trustee or person acting (j) 32 & 33 Viot. u. 62. in a fiduciary capacity and ordered to (r) B. A. 1883, b. 103 ; Order, Jan. pay by a Court of Equity any sum in 1, 1884. his possession or under his control {s) The folio-wing oases are excepted (see 41 & 42 Vict. c. 54) : (4.) Default from the operation of the Act by by an attorney or solicitor in payment sect. 4, viz. : — of costs when ordered to pay costs for " (1.) Default in payment of a penalty, misconduct as such, or in payment of UANKRUPTCY. r85 weeks, or until payment of the Bum due, any person who makes Consequences default in payment of any debt or instalment of any debt due from l^°Jn■gg^&c him in pursuance of any order or judgment of that or any other competent Court." This jurisdiction may, however, only be exercised where " it is proved to the satisfaction of the Court that the person making defaidt either has, or has had since the date of the order or judgment, the means (t) to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same" (m). Proof of "means" may be given in such manner as the Court thinks just ; and for that purpose the debtor and witnesses may be summoned and examined on oath («). Jurisdiction under the section may be exercised by the judge sitting in chambers (»). Instead of committing the debtor in the first instance, the judge may direct the debt to be paid by instalments (y). But in that case the judge has power to commit upon failure to pay each instalment (a). The order to pay by instalments may be from time to time varied or rescinded (a). Imprisonment under the section does not operate as a satis- faction or extinguishment of the debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods, or chattels of the person imprisoned, in a sum of money vhen ordered to pay debtor's earnings, or a fixed income : the same in his character of an officer Sx parte Koster, 14 Q. B. D. 597. of the Court making the order (see 41 («) 32 & 33 Vict. o. 62, s. 6. & 42 Vict. u. 64) : (5.) Default in pay- [x] Ibid. ment for the benefit of creditors of any (y) Ibid. The order for payment portion of a salary or other income in by instalments may be made without respect of the payment of which any any proof of means : Billon v. Cun- Court having jurisdiction in bank- ningham, L. R. 8 Ex. 23. The Court rnptcy is authorized to make an order : if satisfied of the debtor's means may Provided that no person shall be im- make an order for commitment, but prisoned in any case excepted from the direct the warrant to be suspended if operation of the section for a longer the debtor pay the debt by instal- period than one year." ments: Stonor y. Fowle, 13 App. Cas. («) See Chard v. Jervis, 9 Q. B. D. 20. 178. It is not necessary that the (z) Evana v. Wills, 1 C. P. D. 229. "means" should be derived from the {«) 32 & 33 Vict. o. 62, s. 5. 786 MERCANTILE REMEDIES. Consequences the same manner as if the imprisonment had not taken place (e). hfan8df°'&o ^^^ person imprisoned will he discharged out of custody upon ' a certificate signed in the prescrihed manner to the effect that he has satisfied the deht or instalment of a deht iq respect of ■which he was imprisoned, together with the prescribed costs (if any) {d). Where the deht is due upon a judgment in a County Court, the jurisdiction given hy the section can only be exercised by a County Court (e). County Courts within the jurisdiction of which a judgment debtor is or resides, have now jurisdiction under the section, although the amount of the judgment debt exceeds 50^. (/) ; but jurisdiction can be exercised in the County Court only by a judge or his deputy, and by an order showing on its face the ground on which it is issued (g) . Allowance. — An allowance in money may be made by the trustee, with the permission of the" committee of inspection, to the bankrupt for the support of himself and his family, or in. consideration of his services {h). The bankrupt may also be appointed in like manner to superintend the management of the property, or to carry on his trade («). Surplus. — The bankrupt is entitled to any surplus after payment in full of the creditors, with interest, and the costs of the bankruptcy (k). The Bankruptcy Discharge and Closure Act, 1887 (50 & 51 Yiot. c. 66), provides for the discharge of bankrupts under repealed Bankruptcy Acts, for closing bankruptcies, and for the release of trustees. (c) 32 & 33 Vict. u. 62, h. 5. {g) 32 & 33 Vict. o. 62, s. 6. {d) Ibid. (A) B. A. 1883, B. 64; B. E. 1886, {«) Ibid. 1. 296. (/) B. A. 1883, s. 104 (4) ; & parte (i) Ibid. Adimgton, 16 Q. B. D. 666. (Jc) B. A. 1883, b. 65. BANKRUPTCY. 787 Section XII. — Discharge of Debtor and Annulment of Bankruptcy. Discharge. — ^At any time after adjudication, an application Disoliargeof for discharge, which must he made in open Court, may he made anntdmentof hy the hankrupt ; hut it will not he heard till after the puhlic ^° "^ '^" examination is concluded {I). The Court will consider a report of the official receiver, and will hear the official receiver, trustee, and any creditor on the suhject. Fourteen days' notice of the day for hearing must he given to each creditor (w) . The Court may either grant or refuse an ahsolute order, or suspend the operation of the order for a specified time, or impose conditions as to future earnings and property. But an order of discharge must he refused where the dehtor has committed a misdemeanor under the Act, or the Dehtors Act, 1869 ; and it must either he refused, or suspended, or made conditional, if the hankrupt has not kept proper hooks («) relating to his business, and show- ing his business transactions and financial position for three years prior to his bankruptcy, or if he has traded after knowing himself to be insolvent, or if he has contracted any provable debt without reasonable or probable expectation of being able to pay it(o), or if he has brought on his bankruptcy by rash and hazardous speculation {p), or by unjustifiable extravagance in living, or if he has put a creditor to expense by frivolous or vexatious defence of an action, or if he has, within three months before the receiving order and whUe insolvent, given an undue preference to any creditor, or if he has been previously adjudicated, or made any statutory composition or arrangement with creditors, or if he has been guilty of any fraud or fraudu- lent breach of trust {q). If any of the above facts are proved, the Court cannot grant an unconditional discharge ; it must either refuse the discharge, suspend it, or make it conditional (r). The Court cannot make {}) B. A. 1883, s. 28, sub-s. 1. See [p) Ex parte Salamm, 14 Q. B. D. B. E. 1886, rr. 235—244. 936. (»}) B. A. 1883, s. 28, sub-ss. 2, 4, 5. (?) B. A. 1883, s. 28, sub-s. 2. («) Ex parte Reed, 17 Q. B. D. 244. (r) In re Eeap, Ex parte Board of (o) Ex parte White, 14 Q. B. D. 600. Trade, 4 MorreU, 314. " 788 MERCANTILE REMEDIES. Discharge of a conditional order of disoliarge and also suspend the order — annulment of «• 9-} require as a condition of discharge that the debtor consent bankruptcj. ^.^ judgment being entered against him under sect. 23 (6), and also suspend the order of discharge for six months (s). The effect of the order of discharge is to release the bankrupt from all provable debts, except debts on a recognizance, debts at the suit of the Grown, or chargeable against the bankrupt for any offence against a statute relating to any branch of the public revenue, or at the suit of the sheriff or other public officer, on a bail bond for the appearance of any person prosecuted for such offence (unless the Treasury consent in writing to his being discharged therefrom), and except debts or liabilities incurred by means of any fraud or fraudulent breach of trust {t) to which he was a party, or debts or liabilities whereof he has obtaiaed forbearance by any fraud to which he was a party («). An order of discharge is conclusive evidence of the bankruptcy, and of the validity of the proceedings therein (»). It will not re- lease any person who, at the date of the receiviiig order, was a partner or co-trustee with the bankrupt, or who was jointly bound or had made any joint contract with him, or any person who was surety or m the nature of surety for him (y). Annulment of Adjudication. — If, in the opinion of the Court, the debtor ought not to have been adjudicated, or if the debts are proved to have been paid in full, an order of adjudication maybe annulled (s). In such case, aU sales and dispositions of pro- perty and payments made, and acts done, by the official receiver, trustee, or other person acting under their authority, or by the Court, will be valid ; but the property of the bankrupt will vest in such person as the Court may appoint, or, in default of appointment, in the debtor, subject to any conditions that the Court may impose {a). A receiving order may also, in similar («) In re Muggins, 6 Morrell, 38. {x) B. A. 1883, s. 30, snb-s. 3. [t) Emma Silver Mining Co. t. Grant, (y) B. A. 1883, s. 30, sub-s. 4. 17 Oh. D. 122; MwmsUll v. Edwards, (2) B. A. 1883, s. 35, sub-s. 1; 31 Ch. D. 100. In re Gyll, 5 Morrell, 272. As to pay- (m) B. a. 1883, s. 30, sub-S6. 1, 2. ; ment in full, see sect. 36. Cooper y. Prichard, 11 Q. B. D. 351. (a) B. A. 1883, s. 35, sub-B. 2. BANKRUPTCY. 789 circumstances, he set aside by the Court. But the consent of Discharge of the creditors to its annulment will not be decisive (5). annulment of By the Deeds of Arrangement Act, 1887 (50 & 51 Vict. '"^°J^pt'=y- c. 67) (e), deeds of arrangement made in respect of the affairs of a debtor for the benelit of his creditors generally (d), must be registered with the registrar of biUs of sale within seven clear days after the first execution thereof by the debtor or any creditor, otherwise they are void(e). Eegistration under the Act does not make the deed valid, if bankruptcy proceedings are taken within three months of the execution of the deed. If, however, no such proceedings are taken within the three monthsj then the deed if duly registered stands good against the world (/). A deed of arrangement, whether under seal or not, within the meaning of the Act, includes ( g) : — " (a) An assignment of property; " (b) A deed of or agreement for composition ; "And in cases where creditors of a debtor obtain any control over his property or business : — " (c) A deed of inspectorship entered into for the purpose of carrying on or winding up a business ; " (d) A letter of licence authorising the debtor or any other per- son to manage, carry on, reahze or dispose of a business, with a view to the payment of debts ; and " (e) Any agreement or instrument entered into for the purpose of caiTying on or winding up the debtor's business, or authorising the debtor or any other person to manage, carry on, realize, or dispose of the debtor's business with a view to the payment of his debts." Eegistration is effected by filing in Hke manner as a bill of sale given by way of security for the payment of money a true copy of the deed and of every schedule or inventory thereto (4) In re Sester, 22 Q. B. D. 632. or day on wMoh the office is closed, (c) See the Act in the Appendix. registration may be made on the next {d) The Act does not appear to ex- day the ofEoe is open : sect. 10. tend to a case where the debtor deals (/) Sect. 4, sub-s. 2. See In re individually with each creditor, or the Batten, Hx parte Milne, 68 L. J. Q. B. creditor executes a separate release. at p. 335, per Lord Beher, M. E., (e) Sects. 5, 8. Where the time 22 Q. B. D. at p. 691. for registration expires on a Sunday, {g) Sect. 4. 790 ' MERCANTILE REMEDIES. Discharge of annexed, or therein referred to, together with an affidavit verify- annulment of ^g the time of execution, and containing a description of the an np cy. residence and occupation of the debtor, and of the place or places where his business is carried on, and an affidavit by the debtor stating the total estimated amount of property and lia- bilities included under the deed, the total amount of the com- position (if any) payable thereunder, and the names and addresses of his creditors (h) ; the deed must be produced to the registrar at the time of registration duly stamped, not only with the proper inland revenue duty, but with a stamp denoting duty at the rate of Is. in the pound for every 100/. or fraction of 1 00/. of the sworn value of the property passing, or, if none passes, of the amount of composition payable under the deed (i). Registration is not invalidated by reason of the execution of the deed by creditors subsequent to registration [k). Where the place of business or residence of the debtor is out- side the London Bankruptcy District, the registrar must, within three days of registration, transmit a copy of the deed to the registrar of the County Court of the district where the debtor carries on business or resides (/). Office copies of the deed may be obtained (m), and inspection had of the register (w). (h) Sect. 6, sub-s. 1. 685. (i) Sect. 6, Bub-s. 2. (I) Sect. 13. {k) In re Batten, Ex parte Milne, 58 [m] Sect. 11, and sect. 13, sub-s. 2. L. J. Q. B. 335 ; L. E. 22 Q. B. D. [n) Sect. 12, and sect. 13, sub-s. 2. APPENDIX. ( 793 ) APPENDIX OP THE PRINCIPAL STATUTES ON COMMEECIAL SUBJECTS. CONTENTS. 29 Oar. 2, c. 3 (Statute of Frauds), ss. 4 and 17 . 29 Car. 2, c. 7 (Lord's Day Act), s. 1 . 19 Geo. 2, 0. 37 (Insurance) .... 14 Geo. 3, c. 48 (Insurance) .... 7 Geo. 4, c. 46 (Joint Stock Banks) 9 Geo. 4, c. 14 (Statute of Frauds Amendment), ss. 5, 6, and 7 11 Geo. 4 & 1 Will. 4, c. 68 (Land Carriers) 1 & 2 WiU. 4, 0. 37 (Truck System), ss. 1—9, 19, 20, 23—25 3 & 4 Will. 4, 0. 98 (Bank Charter) 5 & 6 Will. 4, 0. 41 (lUegal Securities) . 1 & 2 Yiot. c. 106 (Spiritual Persons Trading), ss. 29, 30, 31 7 & 8 Vict. c. 32 (Bank Charter) . 17 & 18 Vict. c. 31 (Railway and Canal Traffic Regulation) 17 & 18 Vict. c. 104 (Merchant Shipping), Parts 1, 2, 3, 5, 8. and 9 . 18 & 19 Vict. c. 91 (Merchant Shipping Amendment) 18 & 19 Vict. c. Ill (Bills of Lading) 18 & 19 Vict. 0. 119 (Carriage of Passengers by Sea) 19 & 20 Vict. c. 97 (Mercantile Law Amendment) 20 & 21 Vict. c. 54 (Frauds by Trustees, Bankers, &c.) . 24 Vict. c. 10 (Admiralty Coui-t) .... 24 & 25 Vict. 0. 96, ss. 75—87 (Fraudulent Factors Clauses) 25 & 26 Vict. c. 63 (Merchant Shipping Amendment) 25 & 26 Vict. c. 89 (Joint Stock Companies Act) . 28 & 29 Vict. c. 86 (Law of Partnership Amendment) 30 Vict. c. 29 (Purchase of Banking Shares Act) . 30 & 31 Vict. c. 131 (Joint Stock Companies Amendment Act) 30 Vict. c. 15 (Shipping Dues Exemptions) 30 & 31 Vict. c. 124 (Merchant Shipping) 31 & 32 Vict. 0. 86 (Assignees of Mortgage Policies) 31 & 32 Vict. c. 129 (Shipping Registration) 795 795 796 797 798 802 803 805 807 809 812 814 818 821 906 908 909 909 912 912 912 915 927 985 986 987 995 995 995 995 794 APPENDIX OF THE PRINCIPAL STATUTES. 36 & 37 Vict. 0. 36 & 37 Vict. c. 38 & 39 Viet. 0. 39 & 40 Vict. 0. 40 & 41 Vict. 0. 41 & 42 Vict. c. 41 & 42 Vict. c. 32 Vict. c. 11 (Merchant Shipping) 33 & 34 Vict. c. 104 (Joint Stock Companies) 34 & 35 Vict. c. 110 (Merchant Shipping Amendment) . 35 & 36 Vict. c. 73 (Merchant Shipping and Passenger Amend ment) ....... 48 (Eegulation of EaUways) 85 (Merchant Shipping Amendment) 90 (Employers and Workmen) . 80 (Merchant Shipping Amendment) 26 (Joint Stock Companies Amendment Act) 31 (Bills of Sale Act) 49 (Weights and Measures Act) . . , 42 & 43 Vict. c. 72 (Shipping Casualties Investigations) . 42 & 43 Vict. c. 76 (Joint Stock Companies Amendment Act) 43 Vict. 0. 19 (Joint Stock Companies Amendment Act) . 43 & 44 Vict. c. 16 (Merchant Seamen — Payment of Wages) 43 & 44 Vict. c. 42 (Employers' Liability Act) . 43 & 44 Vict. 0. 43 (Merchant Shipping— Carriage of Grain Act) 45 & 46 Vict. c. 43 (BiUs of Sale Amendment Act) 45 & 46 Vict. c. 61 (Bills of Exchange Act) 45 & 46 Vict. 0. 76 (Merchant Shipping Amendment) 46 & 47 Vict. c. 28 (Joint Stock Companies Amendment Act) 46 & 47 Vict. c. 31 (Payment of Wages to Workmen) 46 & 47 Vict. c. 41 (Merchant Shipping — Sea Pishing) . 46 & 47 Vict. c. 62 (Bankruptcy Act) 46 & 47 Vict. c. 57 (Patents, Designs, and Trade Marks Act) 48 & 49 Vict. 0. 63 (Patents, Designs, and Trade Marks Amend- ment Act) ...... 49 Vict. c. 23 (Joint Stock Companies Amendment Act) . 49 & 60 Vict. c. 37 (Patents Act) . , 28 (Merchandise Marks Act) , 46 (Truck Amendment Act) , 57 (Deeds of Arrangement Act) , 62 (Merchant Shipping Act) 50 & 51 Vict. c. 66 (Bankruptcy, Discharge, and Closure Act) 51 & 52 Vict. c. 25 (Eailway and Canal Traffic Act) 51 & 62 Vict. c. 62 (Preferential Payments in Bankruptcy) 52 & 53 Vict. 0. 21 (Weights and Measures Act) . 52 & 63 Vict. c. 24 (Master and Servant Act — Obsolete Statutes) 52 & 53 Vict. c. 43 (Merchant Shipping (Tonnage) Act) 52 & 53 Vict. c. 45 (Factors Act) . 52 & 53 Vict. c. 46 (Merchant Shipping Act Amendment) 52 & 63 Vict. c. 49 (Arbitration Act) 52 & 53 Vict. c. 68 (Merchant Shipping (Pilotage) Act) . 52 & 53 Vict. c. 73 (Merchant Shipping (Colours) Act) . 50 & 51 Vict. 50 & 51 Vict. 60 & 5,1 Vict. 60 & 51 Vict. PAOE 995 995 995 997 999 1001 1007 1012 1024 1025 1030 1057 1057 1059 1061 1065 1067 1069 1072 1092 1093 1093 1094 1094 1141 1168 1169 1171 1172 1178 1182 1185 1186 1188 1207 1208 1213 1213 1215 1218 1219 1223 1223 795 APPENDIX or THE PEINCIPAL STATUTES ON COMMERCIAL SUBJECTS. 29 Car. II. o. 3. An Act for Prevention of Frauds and Perjuries. IV. And be it further enacted by tbe authority aforesaid, that from and Promises and after the said four and twentieth day of June no action shall be brought agreements by whereby to charge any executor or administrator upon any special promise to ^°"' ' answer damages out of his own estate, or whereby to charge the defendant upon any special promise (a) to answer for the debt, default, or miscarriages of another person ; or to charge any person upon any agreement made upon consideration of marriage ; or upon any contract or* sale of lands, tenements, • Sic. or hereditaments, or any interest in or concerning them ; or upon any agree- ment that is not to be performed within the space of one year from the maldng thereof ; unless the agreement upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by Ihe party to be charged therewith, or some other person thereunto by him la^v- fully authorised. XVII. (b) And be itf urther enacted by the authority aforesaid, that from and Contracts for after the said four and twentieth day of June no contract for the sale of any sales of goods goods, wares, and merchandises (c), for the price of ten pounds sterling or up- "" ^"' "' """ wards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contracts, or their agents thereunto lawfully authorised. for 10^. or more. 29 Oar. II. c. 7. An Act for the better Observation of the Lord's Day, commonly called Sunday. FoK the better observation and keeping holy the Lord's day, commonly called Sunday, be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and of the commons, in this present parliament assembled, and by the authority of the same. That all the laws enacted and in force concerning the observation of the 3 Car. 1, c. 1. Lord's day, and repairing to the church thereon, be carefully put in execu- tion ; and that all and every person and persons whatsoever shall on every Lord's day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion, publicly and privately; and that no tradesman, artificer, workman, labourer, or other (a) See as to this 19 & 20 Vict. c. 97, n. 3, infra (*J See 9 Geo. 4, c. 94, s. 7, infra. (c) This section is in the Revised Edition of the Statutes printed as sect. 16. VOL. II. S. 3 G 796 19 Geo. II. cap. 37. Tradesmen, person whatsoever, shall do or exercise any worldly labour, business, or work lib^CTs °* their ordinary callings upon the Lord's day, or any part thereof (works of necessity and charity only excepted) ; and that every person being of the age of fourteen years or upwards, offending in the premises, shall for every None shall cry g^g^ offence forfeit the sum of five shillings ; and that no person or persons waie^"^^ * whatsoever shall publicly cry, shew forth, or expose to sale, any wares, merchandises, fruit, herbs, goods, or chattels whatsoever, upon the Lord's day, or any part thereof, upon pain that every person so offending shall for- feit the same goods so cried, or shewed forth, or exposed to sale. 19 Geo. II. c. 37. Preamble. No assurance to be made on ships or effects, &c., of subjects, interest or no interest, * Sic. Assurance on private ships of war may be made for the owners, interest or no interest. Assurance on effects from Spain or Portugal. In all actions plaintiff to declare within fifteen days ■what sums he hath assiued. An Act to regulate Insurance on Ships belonging to the Subjects of Great Britain, and on Merchandises or Effects laden thereon. Whebeas it hath been found by experience, that the making assurances, interest or no interest, or without further proof of interest than the policy, hath been productive of many pernicious practices, whereby great numbers of ships, with their cargoes, have either been fraudulently lost and destroyed, or taken by the enemy in time of war, and such assurances have encouraged the exportation of wool, and the carrying on many other prohibited and clan- destine trades, which by means of such assurances have been concealed, and the parties concerned secured from loss, as well to the diminution of the public revenue as to the great detriment of fair traders ; and by introducing a mischievous kind of gaming or wagering, under the pretence of assuring the risk on shipping and fair trade, the institution and laudable design of making assurances hath been perverted, and that which was intended for the encouragement of trade and navigation has, in many instances, become hurt- ful of and destructive to the same : for remedy whereof, be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and after the first day of August, one thousand seven hundred and forty-six, no assurance or assur- ances shall be made by any person or persons, bodies corporate or politic, on any ship or ships belonging to his Majesty, or any of his subjects, or on any goods, merchandises, or effects, laden or to be laden on board of any such ship or ships, interest or no interest, or without further proof or* interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer ; and that every such assurance shall be null and void to all intents and purposes. II. Provided always, that assurance on private ships of war, fitted out by any of his Majesty's subjects solely to cruise against his Majesty's enemies, may be made by or for the owners thereof, interest or no interest, free of average, and without benefit of salvage to the assurer ; anything herein con- tained to the contrary thereof in anywise notwithstanding. III. Provided also, that any merchandises or effects from any ports or places in Europe or America, in the possession of the Crowns of Spain or Portugal, may be assured in such way and manner as if this Act had not been made. IV. and v. [Repealed 30 & 31 Vict. o. 59, as to aU the Queen's dominions.] VI. In all actions or suits brought or commenced, after the said first day of August, by the assured, upon any policy of assurance, the plaintiff in such action or suit, or his attorney or agent, shall, within fifteen days after he or they shall be required so to do in writing by the defendant, or his attorney or agent, declare in writing what sum or sums he hath assured or caused to be assured in the whole, and what sums he hath borrowed at respondentia or bottom-ree, for the voyage, or any part of the voyage in question in such suit or action. Insurance. 797 VII. fRepealed by 42 & 43 Vict. o. 59, as to tlie Supreme Court of Judica- ture in England.] VIII. Provided always, that this Act shall not extend to or he in force against any persons residing in any parts or places in Europe out of his Majesty's dominions, for whose account any assurance or assurances shall be made before the 29th day of September, in the year of our Lord one thousand seven hundred and forty-six ; nor extend to or be in force against any persons residing in any parts or places in Turkey, or in Asia, Airica, or America, for whose account any assurance or assurances shall be made before the tiventy-fifth day of March, in the year of our Lord one thousand seven hundred and forty- seven ; anything herein contained to the contrary thereof in anywise notwithstanding («). (a) Bepealed as to the Queen's dominions, 30 & 31 Vict. u. 59. 14 Geo. III. 0. 48. An Act for regulating Inmrancea upon Lives, and for prohibiting all such Insurance, except in cases where the Persons insuring shall have are Interest in the Life or Death of the Persons insured. Wheeeas it hath been found by experience, that the making insurances on Preamble, lives or other events, wherein the assured shall have no interest, hath introduced a mischievous kind of gaming : for remedy whereof, be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament No insurance to assembled, and by the authority of the same, that from and after the passing be mode on the of this Act, no insurance shall be made by any person or persons, bodies }j^^ °' persons politic or corporate, on the life or Hves of any person or persons, or on any inte^t°&c. other event or events whatsoever, wherein the person or persons for whose use, benefit, or on whose account such policy or policies shall be made, shall have no interest, or by way of gaming or wagering ; and that every assur- ance made, contrary to the true intent and meaning hereof, shall be null and void, to all intents and purposes whatsoever. II. It shall not be lawful to make any policy or policies on the life or lives No policies on of any person or persons, or other event or events, without inserting in such lives without policy or policies the person or persons' name or names interested therein, or inserting the for whose use, benefit, or on whose account such policy is so made or ftc™""* names, underwrote. III. In all cases where the insured hath interest in such life or lives. How much may event or events, no greater sum shall be recovered or received from the be recovered insurer or insurers than the amount or value of the interest of the insured in ^|™i^tti™" such life or lives, or other event or events. interest in lives. IV. Provided always, that nothing herein contained shall extend, or be Not to extend to construed to extend, to insurances bon^ fide made by any person or persons, insurances on on ships, goods, or merchandises ; but every such insurance shall be as valid ^l^ps. goods, &o. and effectual in the law, as if this Act had not been made. 3g 2 798 7 Geo. IV. cap. 46. 7 Geo. IV. c. 46. An Act for the letter regulating Copartnerships of certain Bankers in England ; and for amending so much of an Act of the Thirty-ninth and Fortieth Years of the Reign of his late Majesty King Oeorge the Third, intituled '■'An Act for estahlishing an Agreement with the Governor and Company of the Bank of England, for advancing the Sum of Three Millions towards the Supply for the, Service of the Tear One Thousand eight hundred," as relates to the same. [26th May, 1826.] Preamble. Wheeeas an Act was passed in the thirty-ninth and fortieth years of the 39 & 40 Geo. reign of his late Majesty King George the Third, intituled "An Act for 0. 28. establishing an Agreement with the Governor and Company of the Bank of England, for advancing the sum of Three Millions towards the Supply for the Service of the Tear One Thousand eight hundred:" And whereas it was, to prevent doubts as to the privilege of the said governor and company, enacted and declared in the said recited Act, that no other bank should be erected, established, or allowed by Parliament ; and that it should not be lawful for any body politic or corporate whatsoever, erected or to be erected, or for any other persons united or to be united in covenants or partnership, exceeding the number of six persons, in that part of Great Britain called England, to borrow, owe, or take up any sum or sums of money, on their bills or notes payable on demand, or at any less time than six months from the borrowing thereof, during the continuance of the said privilege to the said governor and company, who were thereby declared to be and remain a corporation, with the privilege of exclusive banking, as before recited; but subject nevertheless to redemption on the terms and conditions in the said Act specified : And whereas the governor and company of the Bank of England have consented to relinquish so much of their exclusive privilege as prohibits any body politic or corporate, or any number of persons exceeding six in England, acting in copartnership, from borrowing, owing, or taking up any sum or sums of money on their bills or notes payable on demand, or at any less time than six months from the borrowing thereof ; provided that such body politic or corporate, or persons united in covenants or partnerships, exceeding the number of six persons in each copartnerships, shall have the whole of their banking establishments, and carry on their business as bankers, at any place or places in England exceeding the distance of sixty-five miles from London, and that all the individuals composing such corporations or copartnerships, carrying on such business, shall be liable to and responsible for the due payment of all bills and notes issued by such corporations or Copartnerships copartnerships respectively : Be it therefore enacted by the King's most taSumber may' excellent Majesty, by and with the advice and consent of the lords spiritual carry on business ^""^ temporal, and commons, in this present parliament assembled, and by M bankers in the authority of the same, that- from and after the passing of this Act, it five^miles^from ^^^^ """^ ""^^ be lawful for any bodies politic or corporate erected for the London, pro- purposes of banking, or for any number of persons united in covenants or Tided they have copartnership, although such persons so united or carrying on business no establishment together shall consist of more than six in number, to cany on the trade or Joint Stock Banks. 799 business of bankers in England, in like nmnner as copartnerships of bankers as bankera in consisting of not more than six persons in number may lawfully do ; and for London, and such bodies politic or corporate, or such persons so united aa aforesaid, to JJlmber'Siall be make and issue their bills or notes at any place or places in England, exceed- liable for the ing the distance of sixty-five miles from London, payable on demand, or payment of all otherwise at some place or places specified upon such bills or notes, exceeding ^i^, &c. the distance of sixty-five miles from London, and not elsewhere, and to borrow, owe, or take up any sum or sums of money on their bills or notes so made and issued at any such place or places as aforesaid : Provided always^ that such corporations or persons carrying on such trade or business of bankers in copartnership shall not have any house of business or establish- ment as bankers in London, or at any place or places not exceeding the distance of sixty-five nules from London ; and that every member of any such corporation or copartnership shall be liable to and responsible for the due payment of all bills and notes which shall be issued, and for all sums of money which shall be borrowed, owed, or taken up by the corporation or copartnership of which such person shall be a member, such person being a member at the period of the date of the bills or notes, or becoming or being a member before or at the time of the bills or notes being payable, or being such member at the time of the borrowing, owing, or taking up of any sura or sums of money upon any bills or notes by the corporation or copartnership, or while any sum of money on any bills or notes is owing or unpaid, or at the time the same became due from the corporation or copartnership ; any agreement, covenant, or contract to the contrary notwithstanding. II. Provided always, and be it further enacted, that nothing in this Act This Act not to contained shall extend or be construed to extend to enable or authorise any authorise oo- Buch corporation or copartnership exceeding the number of six persona, so partnerships to carrying on the trade or business of bankers as aforesaid, either by any mem- iSts me^ ber of or person belonging to any such corporation or copartnership, or by tioned, any bills any agent or agents, or any other person or persons on behalf of any such payable on corporation or copartnership, to issue or re-issue in London, or at any place ^?'*bms°°'o*° or places not exceeding the distance of sixty-five miles from London, any bill any partner, &o. or note of such corporation or copartnership, which shall be payable to bearer so resident for on demand, or any bank post bill ; nor to draw upon any partner or agent, or '^^^ *''*'' ^^- '• other person or persons who may be resident in London, or at any place or places not exceeding the distance of sixty-five miles from London, any bill of exchange which shall be payable on demand, or which shall be for a less amount than fifty pounds : Provided also, that it shall be lawful, notwith- standing anything herein, or in the said recited Act contained, for any such corporation or copartnership to draw any bill of exchange for any sum of money amounting to the sum of fifty pounds or upwards, payable either in London or elsewhere, at any period after date or after sight. III. Provided also, and be it further enacted, that nothing in this Act con- nor to borrow tained shall extend or be construed to extend to enable or authorise any such money, or take corporation or copartnership exceeding the number of six persons, so carrying "P °^ ^^^^ bills on the trade or business of bankers in England as aforesaid, or any member, MntaSv^the agent, or agents of any such corporation or copartnership, to borrow, owe, proyi^ns of the or take up in London, or at any place or places not exceeding the distance of recited Act, sixty-five miles from London, any sum or sums of money on any bill or pro- ^^"^P' ^ herein missory note of any such corporation or copartnership payable on demand, or '"'" ° " at any time less than six months from the borrowing thereof, nor to make or issue any bill or bills of exchange or promissory note or notes of such corporation or copartnership contrary to the provisions of the said recited Act of the thirty-ninth and fortieth years of King George the Third, save as provided by this Act in that behalf : Provided also, that nothing herein contained shall extend or be construed to extend to prevent any such corpo- ration or copartnership, by any agent or person authorised by them, from discounting in London, or elsewhere, any bill or bills of exchange not drawn by or upon such corporation or copartnership, or by or upon any person on their behalf. IV. And be it further enacted, that before any such corporation or co- Such copartner- partnership exceeding the number of six persons, in England, shall begin to ships shall, issue any bills or notes, or borrow, owe or take up any money on their biUs ^^^'"^ l^'^S^ or notes, an account or return shall be made out, according to the form con- dedrer at'the ' tained in the schedule marked (A) to this Act annexed, wherein shall be set Stamp Office in forth the true names, title or firm of such intended or existing corporation or London an account contain- 800 7 GrEO. IV. CAP. 46. ing fhe name of the firm, &c. ■ Sic. Governor and Company of the Bank of "Rng- land may em- power agents to carry on hanldng busmesB at any place in Eng- land. Proviso for paj[- ment of notes in coin. Copartnerships may issue Tin- stamped notes on giving bond. copartnersMp, and also the names and places of abode of all the membera of such corporation, or of all the partners concerned or engaged in such copart- nership, as the same respectively shall appear on the books of such corpora- tion or copartnership, and the name or firm of every bank or banks established or to be established by such corporation or copartnership, and also the names and places of abode of two or more persons, being members of such corpora- tion or copartnership, and being resident in England, who shall have been appointed public officers of such corporation or copartnership, together with the title of office or other description of every such public officer respectively, in the name of any one of whom such corporation shall sue and be sued as hereinafter provided, and also the name of every town and place where any of the bills or notes of such corporation or copartnership shall be issued by any such corporation or by their agent or agents ; and every such amount* or return shall be delivered to the commissioners of stamps at the Stamp Office in London, who shall cause the same to be filed and kept in the said stamp office, at)d an entry and registry thereof to be made in a book or books to be there kept for that purpose by some person or persons to be appointed by the said commissioners in that behalf, and which book or books any per- son or persons shall from time to time have liberty to search and inspect on payment of the sum of one shilling for every search. XV. And to prevent any doubts that might arise whether the said governor and company, under and by virtue of their charter, and the several Acts of Parliament which have been made and passed in relation to the affairs of the said governor and company, can lawfully carry on the trade or busi- ness of banking, otherwise than under the immediate order, management and direction of the court of directors of the said governor and company : Be it therefore enacted, that it shall and may be lawful for the said governor and company to authorise. and empower any committee or committees, agent or agents, to carry on the trade and business of banking, for and on behalf of the said governor and company, at any place or places in that part of the United Kingdom called England, and for that purpose to invest such com- mittee or committees, agent or agents with such powers of management and superintendence, and such authority to appoint cashiers and other officers and servants as may be necessary or convenient for carrying on such trade and business as aforesaid : and for the same purpose to issue to such committee or committees, agent or agents, cashier or cashiers, or other officer or officers, servant or servants, cash, bills of exchange, bank post biUs, bank notes, pro- missory notes, and other securities for payment of money : Provided always, that aU such acts of the said governor and company shall be done and exer- cised in such manner as may be appointed by any bye-laws, constitutions, orders, rules, and directions from time to time hereafter to be made by the general court of the said governor and company in that behalf, such bye-laws not being repugnant to the laws of that part of the United Kingdom called England ; and in all cases where such bye-laws, constitutions, orders, rules or directions of the said general court shall be wanting, in such manner as the governor, deputy governor, and directors, or the majorpart of them assembled, whereof the said governor or deputy governor is always to be one, shall or may direct, such directions not being repugnant to the laws of that part of the United Kingdom called England ; anything in the said charter or Acts of Parliament, or other law,. usage, matter, or thing to the contrary thereof notwithstand- ing : Provided always, that in any place where the trade and business of banking shall be carried on for and on behalf of the said governor and company of the Bank of England, any promissory note issued on their account in such place shall be made payable in coin in such place as well as in London. XVI. And be it further enacted, that if any corporation or copartnership carrying on the trade or business of bankers under the authority of this Act, shall be desirous of issuing and reissuing notes in the nature of bank notes, payable to the bearer on demand, without the same being stamped as by law is required, it shall be lawful for them so to do on giving security by bond to his Majesty, his heirs and successors, in which bond two of the directors, members, or partners of such corporation or copartnership shall be the obligors, together with the cashier or cashiers, or accountant or accountants employed by such corporation or copartnership as the said commissioners of stamps shaU require ; and such bonds shall be taken in such reasonable sums as the duties may amount unto during the period of one year, withoondition Joint Stock Banks. 801 to deliver to the said commissioners of stamps, within fourteen days after the fifth day of January, the fifth day of Apiil, the fifth day of July, and the tenth day of October in every year, whilst the present stamp duties shall remain in force, a just and true account, verified upon the oaths or affirma- tions of two directors, members or partners of such corporation or copart- nership, and of the said cashier or cashiers, accountant or accountants, or euoh of them as the said commissioners of stamps shall require, such oaths or affirmations to be taken before any justice of the peace and which oaths or affirmations any justice of the peace is hereby authorised and empowered to administer, of the amount or value of all their promissory notes in circu- lation on some given day in every week, for the space of one quarter of a year, prior to the quarter day immediately preceding the delivery of such account, together with the average amount or value thereof according to such account ; and also to pay or cause to be paid into the hands of the receivers general of stamp duties in Great Britain, as a composition for the duties which would otherwise have been payable for such promissory notes issued within the space of one year, the sum of seven shillings for every one hundred pounds, and also for the fractional part of one hundred pounds of the said average amount or value of such notes in circulation, according to the true intent and meaning of this Act ; and on due performance thereof such bond shall be void ; and it shall be lawful for the said commissioners to fix the time or times of making such payment, and to specify the same in the condition to every such bond ; and every such bond may be required to be renewed from time to time at the discretion of the said commissioners or the major part of them, and as often as the same shall be forfeited, or the party or parties to the same, or any of them, shall die, become bankrupt or insol- vent, or reside in parts beyond the sea. XVII. Provided always, and be it further enacted, that no such corpora- >fo corooration tion or copartnership shall be obliged to take out more than four licences for ?°,™P™5i*°„ .!■.(. . J. J. 1-1 i 1.1- T- take out more the issuing of any promissory notes lor money payable to tne bearer on than four demand, allowed by law to be re-issued in all for any number of towns or licences. places in England ; and in case any such corporation or copartnership shall issue such promissory notes as aforesaid, by themselves or their agents, at more than four different towns or places in England, then, after taking out three distinct licences for three of such towns or places, such corporation or copartnership shall be entitled to have all the rest of such towns or places included in a fourth licence. XVIII. And be it further enacted, that if any such corporation or copart- Penalty on co- nership exceeding the number of six persons in England shall begin to issue partnerahip any bills or notes, or to borrow, owe, or take up any money on their bills or send retumM notes, without having caused such account or return as aforesaid to be made 5001. ' out and delivered in the manner and form directed by this Act, or shall neglect or omit to cause such account or return to be renewed yearly, and every year, between the days or times hereinbefore appointed for that pur- pose, such corporation or copartnership so ofi'ending shall, for each and every week they shall neglect so to make* such account and return, "forfeit * *"■ the sum of five hundred pounds ; and if any secretary or other of&cer of such Penalties for corporation or copartnership shaU make out or sign any false account or J^J^^ '*^° return, or any account or return which shall not truly set forth all the several particulars by this Act required to be contained or inserted in such account or return, the corporation or copartnership to which such secretary or other officer so offending shall belong, shall for every such offence forfeit the sum of five hundred pounds, and the said secretary or other officer so offending shall also for every such offence forfeit the sum of one hundred pounds ; and if any such secretary or other officer making out or signing any False oath, per- such account or return as aforesaid shall knowingly and wilfully make a jury, false oath of or concerning any of the matters to be therein specified and set forth, every such secretary or other officer so offending, and being thereof lawfully convicted, shall be subject and liable to such pains and penalties as by any law now in force persons convicted of wilful and corrupt perjury are subject and liable {o. XIX. And be it further enacted, that if any such corporation or copart- Penalty on co- nership exceeding the number of six persons, so carrying on the trade or partaerahip for business of bankers as aforesaid, shall, either by any member of or person S™! d^M?' belonging to any such corporation or copartnership, or by any agent or ' agents, or any otiier person or persons on behalf of any such corporation or 802 9 Geo. IV. c. 14. or drawing bills of exchange pay- able on demand, or for less than 601.; or borrowing money on bills, except as herein provided. copartnership, issue or re-issue in London, or at any place or places not exceeding the distance of sixty-five mUes from London, any bill or note of such corporation or copartnership which shall be payable on demand ; or shall draw upon any partner or agent, or other person or persons who may be resident in London, or at any place or places not exceeding the distance of sixty-five miles from London, any bill of exchange which shall be payable on demand, or which shall be for a less amount than fifty pounds ; or if any such corporation or copartnership exceeding the number of six persons, so carrying on the trade or business of bankers in England as afore- said, or any member, agent or agents of any such corporation or copartner- ship, shall borrow, owe, or take up in London, or at any place or places not exceeding the distance of sixty-five miles from London, any sum or sums of money on any bill or promissory note of any such corporation or copart- nership payable on demand, or at any less time than six months from the borrowing thereof, or shall make or issue any bill or bills of exchange or promissory note or notes of such corporation or copartnership contrary to the provisions of the said recited Act of the thirty-ninth and fortieth years of King George the Third, save as provided by this Act, such corporation or copartnership so offending, or on whose account or behalf any such offence as aforesaid shall be committed, shall for every such offence forfeit the sum of fifty pounds. Confirmation of promises made by infants. Bepresentations of character. 29 Car. 2, c. 3. Statute of Frauds. IrishAot,7'WiU. 3, c. 12. Powers of recited Acts extended to contracts for goodsof lOi., &c. 9 Geo. IV. c. 14. An Act for rendering a written Memorandum necessary to the validity of certain Promises and Engagements. [9. 1 Illegal Sbcukities. 811 all contracts and agreements -wliioli should be entered into, and all bills, notes, and other securities which should be given, by any person or persons for ransom of any ship or vessel, or of any merchandise or goods on board the same, contrary to that Act, should be absolutely null and void in law, and of no effect whatsoever : And whereas by an Act passed in the sixth year of the reign of his late Majesty King George the Fourth, intituled ' ' An Act to 6 Geo. 4, c. 16. amend the Laws relating to Bankrupts," it was enacted, that any contract or security made or given by any bankrupt or other person unto or in trust for any creditor, or for securing the payment of any money due by such bankrupt, at his bankruptcy, as a consideration or with intent to persuade such creditor to consent to or sign the certificate of any such bankrupt, should be void, and the money thereby secured or agreed to be paid should not be recoverable, and the party sued on such contract or security might plead the general issue, and give that Act and the special matter in evidence : And whereas securities and instruments made void by virtue of the several herein- before recited Acts of the sixteenth year of the reign of his said late Majesty King Charles the Second, the tenth year of the reign of his said late Majesty- King 'William the Third, the ninth and eleventh years of the reign of her said late Majesty Queen Anne, the eleventh and twelJEth years of the reign of his said late Majesty King George the Third, the forty-fifth year of the reign of his said late Majesty King George the Third, and the sixth year of the reign of his said late Majesty King George the Fourth, and securities and instru- ments made void by virtue of the said Act of the twelfth year of the reign of her said late Majesty Queen Anne, and the fifth year of the reign of his said late Majesty King George the Second, other than bills of exchange or promissory notes made vaud by the said Act of the fifty-eighth year of the reign of his said late Majesty King George the Third, are sometimes indorsed, transferred, assigned, or conveyed to purchasers or other persons for a valuable consideration, without notice of the original consideration for which such securities or instruments were given, and the avoidance of such securities or instruments in the hands of such purchasers or other persons is often attended with great hardship and injustice : for remedy thereof be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that so much of the hereinbe- Securities given fore-recited Acts of the sixteenth year of the reign of his said late Majesty '™ considera- King Charles the Second, the tenth year of the reign of his said late Majesty omeR^tofiT' King "William the Third, the ninth, eleventh, and twelfth years of the reign actions not to be of her said late Majesty Queen Anne, the fifth year of the reign of his said void, but to be late Majesty King George the Second, the eleventh and twelfth, and the ^«emea to have forty-fifth years of the reign of his said late Majesty King George the Third, armSIuou- and the sixth year of the reign of his said late Majesty King George the sideranon. Fourth, as enacts that any note, bOl, or mortgage shall be absolutely void, shall be and the same is hereby repealed; but nevertheless every note, bill, or mortgage which if this Act had not been passed would, by virtue of the said several lastly hereinbefore-mentioned Acts or any of them, have been absolutely void, shall be deemed and taken to have been made, drawn, accepted, given or executed for an illegal consideration, and the said several Acts shall have the same force and effect which they would respectively have had if instead of enacting that any such note, bill, or mortgage should be absolutely void, such Acts had respectively provided that every such note, bill, or mortgage should be deemed and taien to have been made, drawn, accepted, given, or executed for an illegal consideration : provided always, that nothiiig herein contained shall prejudice or affect any note, bill or mortgage which would have been good and valid if this Act had not been II. And be it further enacted, that in case any person shall, after the Money paid to passing of this Act, make, draw, give, or execute any note, bill, or mort- ^^^ bolder of gage for any consideration on account of which the same is by the herein- ^hauif d"^"™/! before-recited Acts of the sixteenth year of the reign of his said late Majesty to be paid^n' King Charles the Second, the tenth year of the reign of his said late Majesty account of the King William the Third, and the ninth and eleventh years of the reign of Pfr^on to whom her said late Majesty Queen Anne, or by one or more of such Acts, declared myiaSfy^ven to be void, and such person shall actually pay to any indorsee, holder, or assignee of such note, bill, or mortgage the amount of the money thereby secured, or any part thereof, such money so paid shall be deemed and taken 812 1 & 2 Vict. cap. 106. to hare been paid for and on account of the person to whom such note, hill, or mortgage was originally given upon such illegal consideration as afore- said, and shall be deemed and taken to be a debt due and owing from such last-named person to the person who shall so have paid such money, and shall accordingly be recoverable by action at law in any of his Majesty's Courts of Eecord. 1 & 2 ViOT. 0. 106. An Act to abridge the holding of Benefices in Plurality, and to make tetter Provision for the Residence of the Clergy. [14iA August, 1838.] No spiritual XXIX. And be it enacted, that it shall not be lawful for any spiritual person beneficed person holding any such cathedral preferment, benefice, curacy or leoture- or periomiing: ship, or who shall be licensed or allowed to perform such duties as aforesaid, duty^sMl ^y himself or by any other for him or to his use, to engage in or carry on engage in trade, any trade or dealing for gain or profit, or to deal in any goods, wares or or buy to sell merchandise,- unless in any case in which such trading or dealing shall have of^ain*"^ ^ been or shall be carried on by or on behaU of any number of partners ex- ceeding the number of six, or in any case in which any trade or dealiug, or any share in any trade or dealing, shall have devolved or shall devolve upon any spiritual person, or upon any other person for him or to his use, under or by virtue of any devise, bequest, inheritance, intestacy, settlement, marriage, bankruptcy or insolvency ; but in none of the foregoing excepted cases shall it be lawful for such spiritual person to act as a director or managing partner, or to carry on such trade or dealing as aforesaid in person (a). Not to extend to XXX. Provided always, and be it enacted, that nothing hereinbefore con- spiritual persons tained shall subject to any penalty or forfeiture any spiritual person for engaged in keep- keeping a school or seminary, or acting as a schoolmaster or tutor or in- mff scnools orasj.^ i- • i ■, ,. tutors, &o., in structor, or bemg m any manner concerned or engaged in giving instruction respect of any- or education for profit or reward, or for buying or selling or doing any other thing done, or thing in relation to the management of any such school, seminary or em- selLng m'fuoh ployment, or to any spiritual person whatever for the buying of any goods, employment j wares, or merchandises, or articles of any description, which shall witiiout or to selling any- fraud be bought with intent at the buying thereof to be used by the spiritual bouSitforfli^ person buying the same for his family or in his household, and after the useofthefamily, ^iiy™g of ^''^y s'^oh goods, wares or merchandises or articles, selling the or to being a same again or any parts thereof which such person may not want or choose manager, &o., in to keep, although l3ie same shall be sold at an advanced price beyond that f5e OT fire " which may have been given for the same ; or for disposing of amy books or assurance other works to or by means of any bookseller or publisher ; or for being a society, or manager, director, partner or shareholder in any benefit society, or fire or sdli™| •> • exchange, not being payable to bearer on demand, anything in the herein- before recited Act passed in the fourth year of the reign of his said Majesty King William the Fourth, or in any other Act, to the contrary notwith- standing. 818 17 & 18 Vict. cap. ai. SCHEDULE (B). ;) -Bank. -Firm. -Place. Name and title as set forth in the licence Name of the firm Insert head office or principal 1 place of issue . . . / An Aoconnt pursuant to the Act 7 & 8 Vict. c. 32, of the notes of the said bank in circulation during the week ending Saturday, the day of , 18-. Monday Tuesday Wednesday Thursday Friday Saturday 6) Average of the week [To he annexed to this Account at the End of the Period of Four Weelcs.^ Amount of notes authorized by law ... £ Average amount in circulation during the four 1 „ weeks ending as above .... J I, being [the banker, chief cashier, managing director or partner of the Bank, as the case may le\, do hereby certify, that the above is a true account of the notes of the said bank in circulation during the week above written. (Signed) Dated the day of , 18—. 17 & 18 Vict. c. 31. AnAdf for the letter Regulation of the Traffic on Railways and Canals {a). [Xmh July, 1854.J Wheebas it is expedient to make better provision for regulating the traffic on railways and canals ; Be it enacted by the Queen's most excellent Ma- jesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows : "Board of I. In the construction of this Act, " the Board of Trade" shall mean the Trade;" Lords of the Committee of her Majesty's Privy Council for Trade and Foreign Plantations : "Traffic ," The word "traffic" shall include not only passengers, and their luggage, and goods, animals and other things conveyed by any railway company or canal company, or railway and canal company, but also carriages, waggons, trucks, boats and vehicles of every description adapted for running or passing on the railway or canal of any such company : "Eailway ;" The word " railway " shall include every station of or belonging to such railway used for the purposes of public traffic : and, "Canal;" The word "canal" shall include any navigation whereon tolls are levied by authority of parliament, and also the wharves and lauding places of and belonging to such canal or navigation, and used for the purposes of public traffic : "Company." The expression " railway company," " canal company " or "railway and canal company," shall include any person being the owner or lessee of (a) See 51 & 52 Vict. o. 25, imfra, p. 1190. Railway and Canal Traffic Eegulation. 819 or any contractor worldng any railway or canal or na\rigation, con- structed or carried on under the powers of any Act of Parliament : A station, terminus or wharf shall be deemed to be near another station, Stations, terminus or -wharf when the distance between such stations, termini or wharves shall not exceed one mile, such stations not being situate within five miles from St. Paul's CJhurch, in London. II. Every railway company, canal company and railway and canal com- Duty of railwa7 f)any shall, according to their respective powers, afEord all reasonable faci- companies to ities for the receiving and forwarding and deUveriug of traffic upon and from ^nfj^;^*^ the several railways and canals belonging to or worked by such companies receiving and respectively, and for the return of carriages, trucks, boats and other vehicles, forwarding and no such company shall make or give any undue or imreasonable prefer- traffic -without ence or advantage to or in favour of any particular person or company, or SStofand ^ any particular description of traffic in any respect whatsoever, nor shall any without par- such company suWeot any particular person or company, or any particular tiality. description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; and every railway company and canal company and railway and canal company having or working railways or canals which form part of a continuous Ime of railway or canal or railway and canal com- munication, or which have the terminus, station or wharf of the one near the terminus, station or wharf of the other, shall afiord all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals by the other, without any reasonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and BO that no obstruction may be onered to the public desirous of using such railways or canals or railways and canals as a continuous line of com- munication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies, be at all times afforded to the public in that behalf. III. It shall be lawful for any company or person complaining against Parties com- any such companies or company of anything done, or of any omission made plainmg that in violation or contravention of this Act, to apply in a summary way, by fl^^s tor motion or summons, in England, to her Majesty's Court of Common Pleas at forwarding Westminster, or in Ireland to any of her Majesty's superior courts in Dublin, ^^^Sp'-^"'' '■'^ or in Scotland to the Court of Session in Scotland, as the case may be, or to Sply by'im)?on any judge of any such court («) : and, upon the certificate to her Majesty's or Biunmons to Attorney- General in England or Ireland, or her Majesty's Lord Advocate in the superior Scotland, of the Board of Trade alleging any such violation or contravention """"ts. of this Act by any such companies or company, it shall also be lawful for the said Attorney-General or Lord Advocate to apply in like manner to any such court or judge, and in either of such cases it shall be lawful for such court or judge to hear and determine the matter of such complaint ; and for that purpose, if such court or judge shall think fit, to direct and prosecute, in such mode and by such engineers, barristers or other persons, as they shall think proper, all such inquiries as may be deemed necessary to enable such court or judge to form a just judgment on the matter of such complaint ; and if it be made to appear to such court or judge on such hearing, or on the report of any such person, that anything has been done or omission made, in violation or contravention of this Act, by such company or companies, it shall be lawful for such court or judge to issue a writ of injunction or inter- dict, restraining such company or companies from further continuing such violation or contravention of this Act, and enjoining obedience to the same ; and in case of disobedience of any such -writ of injunction or interdict, it shall be lawful for such court or judge to order that a -writ or -writs of attachment or any other process of such court incident or applicable to -writs of injunction or interdict, shall issue against any one or more of the directors of any com- pany, or against any o-wner, lessee, contractor or other person failing to obey such writ of injunction or interdict ; and such court or judge may also, if they or he shall think fit, make an order directing the payment by any one or more of such companies of such sum of money as such court or judge shall determine, not exceeding for each company tiie sum of two hundred pounds for every day, after a day to be named in the order, that such com- (a) See Eegoilation of Kailways Eailway and Canal Traffic Act, 1888 Act, 1873 (36 & 37 Vict. c. 48), and (61 & 62 Vict. c. 26), s. 8, infra. VOL. II. — S. 3 I 820 17 & 18 Vict. cap. 31. Judges may make Budi regulations as may be neces- sary for pro- ceedings under this Act. Court or judge may order a re-hearing. Mode of pro- ceeding under this Act. Company to be liable for neglect or default in the carriage of goods, notwith- standing notice to the contrary. Company not to be liable beyond a limited amount in cer- tain cases, unless the value declared and extra payment made. Proof of value to be on the person claiming com- pensation. pany or compames stall fail to obey such iniuuotion or interdict : and sueli moneys shall be payable as the court or judge may direct, either to the party complaining, or into court to abide the ultimate decision of the court, or to her Majesty, and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a ■writ of execution, in like manner as if the same had been recovered by decree or judgment in any superior court at Westminster or Dublin in Eng- land or Ireland, and in Scotland by such diligence as is competent on an extracted decree of the Court of Session ; and in any such proceeding as aforesaid, such court or judge may order and determine that all or any costs thereon incurred shall and may be paid by or to the one party or the other, as such court or judge shall think fit; and it shall be lawfii for any auoh engineer, barrister or other person, if directed so to do by such court or judge, to receive evidence on oath relating to the matter of any such inquiry, and to administer such oath. IV. It shall be lawful for the said Court of Conmion Pleas at Westminster, or any three of the judges tJiereof, of ■whom the Chief Justice shall be one, and it shall be lawful for the said courts in Dublin, or any nine of the judges thereof, of whom the Lord Chancellor, the Master of the Rolls, the Lords Chief Justice of the Queen's Bench and Common Pleas, and the Lord Chief Baron of the Exchequer, shall be five, from time to time- to make all such general rules and orders as to the forms of proceedings and process, and all other matters and things touching the practice and otherwise in carrying this Act into execution before such courts and judges, as they may think fit, in England or Ireland, and in Scotland it shall be lawful for the Court of Session to make such Acts of sederunt for the like purpose as they shall think fit. V. Upon the application of any party aggrieved by the order made upon any such motion or summons as aforesaid, it shall be lawful for the court or judge by whom such order was made to direct, if they tbiTik fit so to do, such motion or apphoation on summons to be reheard before such court or judge, and upon such rehearing to rescind or vary such order. VI. No proceeding shall be taken for any violation or contravention of the above enactments, except in the manner herein provided ; but nothing herein contained shall take away or diminish any rights, remedies or privileges of any person or company against any railway or canal or railway and canal company under the existing law. VII. Every such company as aforesaid shall be liable for the loss of, or for any injury done to any horses, cattle or other animals, or to any articles, goods or things, in the receiving, forwarding or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition or declaration made and given by such company con- trary thereto, or in anywise limiting such liabiUty : every such notice, con- dition or declaration being hereby declared to be null and void : provided always, that nothing herein contained shall be construed to prevent the said companies from making such conditions with respect to the receiving, for- warding and delivering of any of the said animals, articles, goods or things as shall be adjudged by the court or judge before whom any question relating thereto shall be tried to be just and reasonable : provided always, that no greater damages shall be recovered for the loss of or for any injury done to any of such animals, beyond the sums hereinafter mentioned ; (that is to say,) for any horse fifty pounds ; for any neat cattle, per head, fifteen pounds ; for any sheep or pigs, per head, two pounds ; unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared them to be respectively of higher value than as above mentioned ; in which case it shall be lawful for such company to demand and receive, by way of compensation for the increased risk and care thereby occasioned, a reasonable per-centage upon the excess of the value so declared above the respective sums so limited, as aforesaid, and which shall be paid in addition to the ordinary rate of charge ; and such per-centage or increased rate of charge shall be notified in the manner prescribed in the statute 11 G-eo. 4 & 1 Will. 4, 0. 68, and shall be binding upon such company in the manner therein mentioned : provided also, that the proof of the value of such animals, articles, goods, and things, and the amount of the injury done thereto, shall in all cases lie upon the person clailning compensation for such loss or injury : provided also, that no special contract between such company Merchant Shipping Act. 821 and any other parties respecting the receiving, forwarding or delivering of No special con- any animals, articles, goods, or things as aforesaid, shall he binding upon or tract to be bind- affect any such party unless the same be signed by him or by the person ^,^*°° delivering such animals, articles, goods, or things respectively for carriage : ^^ provided also, that nothing herein contained shall alter or affect the rights, Saving of privileges or liabilities of any such company under the said Act of the if G^o'^^4 & 11 Geo. 4 & 1 Will. 4, 0. 68, with respect to articles of the descriptions 1 WiU. 4, 0. 68. mentioned in the said Act. VIII. This Act may be cited for all purposes as "The Eailway and Canal Sbort title. Traffic Act, 1854." 17 & 18 ViOT. 0. 104. An Act to amend and comoUdate the Acta relating to Merchant Ship- ping. [10th August, 1854.] "Whbebas it is expedient to amend and consolidate (a) the Acts relating to Merchant Shipping : Be it therefore enacted by the Queen's most excellent Majesty, by and vfith the advice and consent of the lords spiritual and tem- poral, and commons, in this present parliament assembled, and by the autho- rity of the same, as follows : Preliminary. PnUminwry. I. This Act may be cited for all purposes as " The Merchant Shipping gimrtMHeofAct Act, 1864." II. In the construction and for the purposes of this Act (if not inconsistent „? ^^^ms with the context or subject-matter) the following terms shall have the respec- jn ^^^ a^. tive meanings hereinafter assigned to them : that is to say, "Her Majesty's Dominions " shall mean her Majesty's dominions strictly so called, and all territories under the government of the East India Company, and all other territories (if any) governed by any charter or licence from the crown or parliament of the United Kingdom : " The United Kingdom " shall mean Great Britain and Ireland : " British Possession " shall mean any colony, plantation, island, territory, or settlement within her Majesty's dominions, and not within the " United Kingdom" (*) : " The Treasury" shall mean the commissioners of her Majesty's treasury: " The Admiralty" shall mean the lord high admiral or the commissioners for executing his ofdce : " The Board of Trade " shall mean the lords of the committee of privy oouncU appointed for the consideration of matters relating to trade and f oreignplantations : " The Trinity House " shall mean the master, wardens, and assistants of the guild, fraternity, or brotherhood of the most glorious and undivided Trinity and of St. Clement in the parish of Deptford Strond, in the county of Kent, commonly called the corporation of the Trinity House of Deptford Strond : "The Port of Dublin Corporation" shall mean the corporation for pre- serving and improving the port of Dublin : "Consular Officer" shall include consul-general, consul, and vice-consul, and any person for the time being discharging the duties of consul- general, consul, or vice-consul : (fl) The previous provisions upon entire. This Act has, in some re- this subject were repealed by statute spects, been amended and repealed 17 & 18 Vict. 0. 120, from the time by 25 & 26 Vict. c. 63 ; 30 & 31 Vict, this statute came into operation. c. 124; 34 & 35 Vict. c. 110; 35 & Only those parts of this long enact- 36 Vict. 0. 73 ; 36 & 37 Vict. 0. 85, ment have been inserted which re- 39 & 40 Vict. 0. 80, and 42 & 43 late to the matters discussed in this Vict. 0. 72, post. Treatise, and they have been inserted (i) See 32 Vict. 0. 11, s. 7. 3i2 822 17 & 18 Vict. cap. 104," PnliminaTy . " Eeceiver " shall mean any person appointed in pursuance of this Act " receiver of wreck : "Pilotage Authority " shall include all bodies and persons authorized to appoint or license pilots, or to fix or alter rates of pilotage, or to exercise any jurisdiction in respect of pilotage : "PUot" shall mean any person not belonging to a ship who has the conduct thereof : " Qualified Pilot" shall mean any person duly licensed by any pilotage authority to conduct ships to which he does not belong : " Master " shall include every person (except a pilot) having command or charge of any ship : "Seamen" shall include every person (except masters, pUots and ap- prentices duly indentured and registered), employed or engaged in any capacity on board any ship : " Salvor " shall, in the case of salvage services rendered by the of&cers or crew or part of the crew of any ship belonging to her Majesty, mean the person in command of such ship : "Person" shall include body corporate : "Ship" shall include every description of vessel used in navigation not propelled by oars : ?' Poreign-going Ship " shall include every ship employed in trading or going between some place or places in the United Kingdom, and some place or places situate beyond the following limits : that is to say, the coasts of the United Kingdom, the islands of Guernsey, Jersey, Sark, Alderney and Man, and the continent of Europe between the river Elbe and Brest inclusive : " Home-trade Ship " shall include every ship employed in trading or going within the following limits : that is to say, the United Kingdom, the islands of Gruemsey, Jersey, Sark, Alderney and Man, and the con- tinent of Europe between the river Elbe and Brest inclusive : "Home-trade Passenger Ship" shall mean every home-trade ship employed in carrying passengers : " Lightiloiises " shall, in addition to the ordinary meaning of the word, include floating and other lights exhibited for the guidance of ships, and " buoys and beacons " shall include all other marks and signs of the sea : " Wreck " shall include jetsam, flotsam, lagan and derelict found in or on the shores of the sea or any tidal water (c) . Commenoement HI- This Act shall come into operation on the first day of May, one of Act. thousand eight hundred and fifty-five. Exemption of IV. This Act shall not, except as hereinafter specially provided, apply to hOT Majesty's ships belonging to Her Majesty. ^^V'- V. This Act shall be divided into eleven parts : Division of Act. The Eirst Part relating to the Board of Trade : its general functions. The Second Part to British Ships : their owner^p, measurement and registry : The Third Part to Masters and Seamen ; The Eourth Part to Safety and Prevention of Accidents : The Eif th Part to Pilotage : The Sixth Part to Lighthouses; The Seventh Part to the Mercantile Marine Eund : The Eighth Part to Wrecks, Casualties and Salvage : The Ninth Part to Liability of ShipovnierS : The Tenth Part to Legal Procedure : The Eleventh Part to Miscellaneous Matters. (c) See 31 & 32 Vict. o. 45, s. 2. Merchant Shipping Act. 823 PART I. ThB BoAED op TbATH : lis GeNEEAI, FuNOnONS. I. Punctiens of VI. The Board of Trade shall be the department to undertake the general superintendence of matters relating to merchant ships and seamen, and shall Board of Trade be authorised to carry into execution the provisions of this Act, and of all meroSS'^D^ other Acts relating to merchant ships and seamen in force for the time being, pij,g. other than such Acts as relate to the revenue. VII. AU documents whatever purporting to be issued or written by or Certificates and under the direction of the Board of Trade, and purporting either to be sealed documents pur- with the seal of such board, or to be signed by one of the secretaries or ge^a oJ^j^ed assistant secretaries to such board, shall be received in evidence and shall be jq ^ given deemed to be issued or written by or under the direction of the said board, manner to be without further proof, unless the contrary be shown; and all documents received in purporting to be certificates issued by the Board of Trade in pursuance of ®" ™°®' this Act, and to be sealed with the seal of such board, or to be signed by one of the of&oers of the marine department of such board, shall be received in evidence and shall be deemed to be such certificates, without further proof, unless the contrary be shown. VIII. The Board of Trade may from time to time prepare and sanction Board of Trade forms of the various books, instruments, and papers required by this Act other 1"J|!f"® forms of than those required by the second part thereof, and may from time to time '™'t™n'*ntB. make such alterations therein as it deems requisite ; and shall before finally issuing or altering any such form, give such public notice thereof as it deems necessary in order to prevent inconvenience ; and shall cause every such form to be sealed with such seal as aforesaid,- or marked with some other dis- tingtushing mark, and to be supplied at the custom houses and shipping offices of the United Kingdom free of charge, or at such moderate prices as it may from time to time fix, or may license any persons to print and sell the same ; and every such book, instrument and paper as aforesaid, shall be made in the form issued by the Board of Trade, and sanctioned by it as the proper form for the time being ; and no such book, instrument or paper as aforesaid, unless made in such form, shall be admissible in evidence in any civil proceeding on the part of any owner or master of any ship ; and every such book, instrument or paper, if made in a form purporting to be a proper form, and to be sealed or marked as aforesaid, shall be taken to be made in the form hereby required, unlei;s the contrary is proved. IX. All instruments used in carrying into efiect the second part of this Certain forms Act, if not already exempted from stamp duty, and all instruments which by ™J instruments the third, fourth, sixth, or seventh parts of this Act are required to be made ^^^ sSmro in forms sanctioned by the Board of Trade, if made in such forms, and all duty, instruments used by or under the direction of the Board of Trade in carrying such parts of this Act into effect, shall be exempt from stamp duty. X. Every person who forges, assists in forging, or procures to be forged. Penalties for such seal or other distinguishing mark as aforesaid, or who fraudulently foreeryof seal alters, assists in fraudulently altering, or procures to be fraudulently altered, ^^ration of™' any form issued by the Board of Trade, with the view of evading any of the forms, and for provisions of this Act or any condition contained in such form, shall for each not using forms offence be deemed guilty of a misdemeanour ; and every person who, in any "^St^ J"^ Board case in which a form sanctioned by the Board of Trade is by the third part of " * *" this Act required to be used, uses without reasonable excuse any form not purporting to be so sanctioned, or who prints, sells or uses any document purporting to be a form so sanctioned, knowing the same not to be so sanctioned for the time being, or not to have been prepared and issued by the Board of Trade, shall for each such offence incur a penalty not exceeding ten pounds. XI. Subject to the provisions hereinafter contained, all fees and payments Application of (other than fines) coming to the hands of the Board of Trade under the third money and fines and fourth parts of this Act, shall be carried to the account of the Mercantile S^^?" ^""^ °^ Marine Fund hereinafter mentioned (d), and shall be dealt with as herein prescribed in that behalf ; and all fines coming to the hands of the Board of Trade under this Act shall be paid into the receipt of her Majesty's (d) See s. 417. 824 17 & 18 Vict. CAP. 104; I. Functions of Board of Trade, EetumstoBoaid of Trade. Officers of £oaid of Trade, naval officers, consuls, the registrar- general of sea- men, officers of customs and shipping mas- ters, may in- spect documents and muster Board of Trade may appoint inspectors. Powers of inspectors. exchequer in suoli manner as the treasury may direct, and shall be carried to and form part of the Consolidated Fund of the United Kingdom. XII. All consular officers (e), and all officers of customs abroad, and all local marine boards and shipping masters, shall make and send to the Board of Trade such returns or reports on any matter relating to British merchant shipping or seamen as such board requires ; and all sMpping masters shall, ■whenever required by the Board of Trade, produce to such board or to its officers all official log-books and other documents which, in pursuance of this Act, are delivered to them. Xni. Every officer of the Board of Trade, and every commissioned officer of any of her Majesty's ships on full pay, and every British oonsular officer, and the registrar- general of seamen and his assistant, and eyery chief officer of customs in any place in her Majesty's dominions, and every shipping master, may, in oases where he has reason to suspect that the provisions of thS Act or the laws for the time being relating to merchant seamen and to naviga- tion are not complied with, exercise the following powers ; (that is to say,) He may require the owner, master, or any of the crew of any British ship to produce any official log-books or other documents relating to 8U(£ crew or any member thereof in their respective possession or control : He may require any such master to produce a list of all persons on board his shipj and take copies of aU official log-books or documents, or of any part thereof : He may muster the crew of any such ship ; He may summon the master to appear and give any explanation concern- ing such ship or her crew or the said official log-book or documents : And if upon requisition duly made by any person so authorised in that behalf as aforesaid, any person refuses or neglects to produce any such official log- book or document as he is hereinbefore required to produce, or to allow tbe same to be inspected or copied as aforesaid, or impedes any such master of a crew as aforesaid, or refuses or neglects to give any explanation which he is hereinbefore required to give, or knowingly misleads or deceives any person hereinbefore authorised to demand any such explanation, he shall for each such offence incur a penalty not exceeding twenty pounds. XTV. The Board of Trade may, from time to time, whenever it seems expedient to them so to do, appoint any person, as an inspector to report to them upon the following matters : (that is to say,) (1.) TJpon the nature and causes of any accident or damage which any ship has sustained or caused, or is alleged to have sustamed or caused : (2.) Whether the provisions of this Act, or any regulations made under or by virtue of this Act, have been compUed with : (3.) Whether the hull and machinery of any steam ship are sufficient and in good condition ; XV. Every such inspector as aforesaid shall have the following powers : (that is to say,) (1.) He may go on board any ship, and may inspect the same or any part thereof, or any of the machinery, boats, equipments, or articles on board thereof to which the provisions of this Act apply, not unnecessarily detaining or delaying her from proceeding on any voyage : (2.) He may enter and inspect any premises the entry or inspection of which appears to him to be requisite for the purpose of tiie report which he is directed to make : (3.) He may, by summons under his hand, require the attendance of all such persons as he thinks fit to call before him and examine for such purpose, and may require answers or returns to any inquiries he thinks fit to make : (4.) He may require and enforce the production of all books, papers or documents which he considers important for such purpose : (5.) He may administer oaths, or may, in lieu of requiring or administer- ing an oath, require every person examined by him to make and subscribe a declaration of the truth of the statements made by him in his examination : {e) See s. 2. Merchant Shipping Act. 825 Any every witness so summoned as aforesaid shall be allowed such expenses I. Functions of as would be allowed to any witness attending on subpoena to give evidence Soard of Trade. before any court of record, or if in Scotland to any witness attending on TPitnoIi^tobe citation the Court of Justiciary ; and in case of any dispute as to the amount allowed ex- of such expenses, the same shall be referred by the inspector to one of the penses. masters of her Majesty's Court of Queen's Bench in England or Ireland, or to the Queen's and lord treasurer's remembrancer in Scotland, who on a request made to him for that purpose under the hand of the said inspector, shall ascertain and certify the proper amount of such expenses ; and every Penalty for person who refuses to attend as a witness before any such inspector, after g^'Sf"},? *° ^™ having been required so to do in the manner hereby directed, and after " having had a tender made to him of the expenses (if any) to which he is entitled as aforesaid, or who refuses or neglects to make any answer, or to give any return, or to produce any document in his possession, or to make or subscribe any declarations which any such inspector is hereby empowered to require, shall for each such offence incur a penalty not exceeding ten pounds. XVI. Every person who wilfully impedes any such inspector appointed ^™°;'*5' .'"' by the Board of Trade as aforesaid in the execution of his duty, whether on iJg™"toJ5fn ^^ board any ship or elsewhere, shall incur a penalty not exceeding ten pounds, execution of and may be seized and detained by such inspector or other person or by any their duty, person or persons whom he may call to his assistance until such offender can be convemently taken before some justice of the peace or other officer having proper jurisdiction. PART 11. (/). Beitish Ships : thbib OwuEEBmi?, MEAStmEMENT, ahb Eegistet. Application. Application. XVII. The second part of this Aot shall apply to the whole of her Ma- Application of jesty's dominions. Part 2 of Aot. Description and OtenersMp of British Vessels. U. Sacription XVIII. No ship shall be deemed to be a Bristish ship unless she belongs BriMAShipt. wholly to owners of the following description : (that is to say,) (1.) Natural-bom British subjects : Description and Provided, that no natural-bom subject who has taken the oath of b^Mi sMps. allegiance to any foreign sovereign or state shall be. en titled to be -i^jy^-r-K, b " such owner as aforesaid, unless he has subsequently to taking owners. ^ ° such last-mentioned oath, taken the oath of aUegianoe to her Majesty, and is and continues to be during the whole period of his so being an owner resident in some place within her Majesty's dominions, or if not so resident, member of a British factory, or partner in a house actually carrying on business in the United Kingdom, or in some other place within her Majesty's dominions : (2.) Persons made denizens by letters of denization, or naturalized by or pursuant to any Act of the Imperial Legislature, or by or pursuant to any Act or ordinance of the proper legislative authority in any British possession : Provided that such persons are and continue to be during the whole period of their so being owners resident in some place within her Majesty's dominions, or if not so resident, members of a British factory, or partners in a house actually carrying on business in the United Kingdom or in some other place wiihia her Majesty's dominions, and have taken the oath of allegiance to her Majesty subsequently to the period of their being so made denizens or naturalized : (3.) Bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom or some British possession. (/) See 18 & 19 Vict. o. 91, s. 9, ir^ra. 826 17 & 18 Vict. cap. 104. n. DeacHptim XIX. Every British sHp must be registered in manner hereinafter men- and Ownership of tioned, except, British Ships. Brilisli ahipB -with certain ex- ceptions must be registered. Measurement of Tonnage. Tonnaffe deck ; feet; aeoimalB. KuleI. For ships to be registered and olfier ships of -which the hold is dear. Lengths. Tranaverae aieas. (1.) Ships duly registered hefore this Act comes into operation : (2.) Ships not exceeding fifteen tons burden employed solely in navigation on the rivers or coasts of the United Kingdom, or on the rivers or coasts of some British possession within which the managing owners of such ships are resident : (3.) Ships not exceeding thirty tons burden, and not having a whole or fixed deck, and employed solely in fishing or trading coastwise on the shores of Newfoundland, or parts adjacent thereto, or in the Grulf of St. Lawrence, or on such portion of the coasts of Canada, Nova Scotia, or New Brunswick as lie bordering on such Gulf : And no ship hereby required to be registered shall, unless registered, be recognized as a British ship ; and no officer of customs shall grant a clearance or transire to any ship hereby required to be registered for the purpose of enabling her to proceed to sea as a British ship, unless the master of such ship, upon being required so to do, produces to him such certificate of registry as is hereinafter mentioned ; and if such ship attempts to proceed to sea as a British ship without a clearance or transire, such officer may detain such ship untU such certificate is produced to him. Mecau/rement of Tonnage (/). XX. Throughout the foUowiag rules the tonnage deck shall be taken to be the upper deck in ships which have less than three decks, and to be the second deck from below in all other ships ; and in carrying such rules into effect all measurements shall be taken in feet and fractions of feet, and all fractions of feet shall be expressed in decimals. XXI. The tonnage of every ship to be registered, with the exceptions mentioned in the next section, shall, previously to her being registered, be ascertained by the following rule, hereinafter called Kule I. (g) ; and the tonnage of every ship to which such rule can be applied, whether she is about to be registered or not, shall be ascertained by the same rule: — ■ (1.) Measure the length of the ship in a straight line along the upper side of the tonnage deck from the inside of the inner plank (average thickness) at the inside of the stem to the inside of the midship stem timber or plank there, as the case may be (average thickness), deducting from this length what is due to the rake of the bow in the thiclmess of the deck, and what is due to the rake of the stem timber in the thickness of the deck, and also what is due to the rake of the stem timber in one-third of the round of the beam ; divide the length so taken into the mmiber of equal parts required by the following table, according to the class in such table to which the ship belongs : Table. Class I. Ships of which the tonnage deck is according to the above measurement 50 feet long or under, into four equal parts : ,, 2. Ships of which the tonnage deck is according to the above measurement above 60 feet long and not exceed- ing 120, into six equal parts : ,, 3. Ships of which the tonnage deck is according to the above measurement above 120 feet long and not exceed- ing 180, into eight equal parts : „ 4. Ships of which the tonnage deck is according to the above measurement above 180 feet long and not exceed- ing 225, into ten equal parts : „ 5. Ships of which the tonnage deck is according to the above measurement above 225 feet long, into twelve equal parts. (2.) Then, the hold being first sufficiently cleared to admit of the required depths and breadths being properly taken, find the transverse area of such ship at each point of division of the length as follows : — {/) See the Merchant Shipping (Tonnage) Act, 1889 (52 & 53 Vict. c. 43). (^) See 18 & 19 Vict. c. 91, s. 14. Merchant Shipping Act. 827 Measure the depth at each point of division, from a point at a n. MMmremeni distance of one-third of the round of the beam below such deck, o/ Tonnage. or, in case of a break, below a line stretched in continuation thereof, to the upper side of the floor timber at the inside of the limber strate, after deducting the average thickness of the oeiUng ■which is between the bilge planks and limber strake : then, if the depth at the midship division of the length do not exceed sixteen feet, divide each depth into four equal parts ; then measure the inside horizontal breadth at each of the three points of division, and also at the upper and lower points of the depth, extending each measurement to the average thickness of that part of the ceiling which is between the points of measurement ; number those breadths from above {i. e. numbering the upper breadth one, and so on down to the lowest breadth) ; multiply the second and fourth by four, and the third by two ; add these products together, and to the sum add the first breadth and the fifth : multiply the quantity thus obtained by one-third of the common interval between the breadths, and the product shall be deemed the transverse area ; but if the midship depth exceed sixteen feet, divide each depth into six equal parts instead of four, and measure as before directed the horizontal breadths at the five points of division, and also at the upper and lower points of the depth ; number them from above as before ; multiply the second, fourth, and sixth by four, and the third and fifth by two ; add these products together, and to the sum add the first breadth and the seventh ; multiply the quantity thus obtained by one-third of the common interval between the breadths, and the product shall be deemed the transverse area. (3.) Having thus ascertained the transverse area at each point of division Computation of the length of the ship as required by the above table, proceed ''''"'' areas, to ascertain the register tonnage of the ship in the following manner : — Number the areas successively, 1, 2, 3, &o., No. 1 being at the extreme limit of the length at the bow, and the last number at the extreme limit of the length at the stem : then, whether the length be divided according to the table into four or twelve parts as in classes 1 and 6, or any intermediate number as in classes 2, 3, and 4, multiply the second and every even numbered area by four, and the third and every odd numbered area (except the first and last) by two ; add these products together, and to the sum add the first and last if they yield anything ; multiply the quantity thus obtained by one-third of the common interval between the areas, and the product will be the cubical contents of the space under the tonnage deck ; divide this product by one hundred, and the quotient being the tonnage under the tonnage deck shall be deemed to be the register tonnage of the ship, subject to the additions and deduc- tions hereinaiter mentioned. (4.) If there be a break, a poop, or any other permanent closed-in space Poop and any on the upper deck, available for cargo or stores, or for the berthing otter cloaed-iu or accommodation of passengers or crew, the tonnage of such space "P*"^- shall be ascertained as follows : — Measure the internal mean length of such space in feet, and divide it into two equal parts ; measure at the middle of its height three inside breadths, namely, one at each end and the other at the middle of the length ; then to the sum of the end breadths add four times the middle breadth, and multiply the whole sum by one-third of the common interval between the breadths : the product will give the mean horizontal area of such space ; then measure the mean height, and multiply it by the mean horizontal area ; divide the product by one hundred, and the quotient shall be deemed to be the tonnage of such space, and sliall be added to the tonnage under the tonnage deck, ascer- tained as aforesaid, subject to the following provisions : — [Tirst, that nothing shall be added for a closed-in space solely appropriated to the berthing of the crew, unless such space exceeds one-twentieth of the remaining tonnage of the ship, and in case of such excess the excess only diall be added ; and, secondly (A)], that nothing shall (A) Eepealed : 62 & 53 Vict. c. 43, s. 1 (2). 828 17 & 18 Vict. cap. 104. n. Measurement of Tonnage, In case of two or more decks. BuLE H. For sMps not requiring registry witli cargo on board. I/ength. Breadth. Girting of the ship. 'Sic. Foop and other dosed-in spaces on upper deck. Rule HI. Allowance for engine room in steamers. To he rateable in ordinary steamers. te added in respect of any building erected for the shelter of deck passengers, and approved by the Board of Trade. (6.) If the ship has a third deck, commonly called a spardecTj, the "tonnage of the space between it and the tonnage deck shall be ascertained as follows : — Measure in feet the inside length of the space at the middle of its height from the plank at the side of the stem to the lining on the timbers at the stem, and divide the length into the same number of equal parts into which the length of the tonnage deck is divided as above directed ; measure (also at the middle of its height) the inside breadth of the space at each of the points of division, also the breadth of the stem and the breadth of the stern ; number them successively 1, 2, 3, &c., commencing at the stem; multiply the second and all the other even numbered breadths by four ; and the third and all the other odd numbered (except the first and last) by two ; to the sum of these products add the first and last breadths ; multiply the whole sum by one-third of the common interval between the breadths, and the result will give in superficial feet the mean horizontal area of such space ; measure the mean height of such space, and multiply by it the mean horizontal area, and the product will be the cubical contents of the space ; divide this product by one hundred, and the quotient shall be deemed to be the tonnage of such space, and shall be added to the other tonnage of the ship ascertained as aforesaid ; and if the ship has more than three decks, the tonnage of each space between decks above the tonnage deck shall be severally ascertained in manner above described, and shall be added to the tonnage of the ship ascertained as aforesaid. XXII. Ships which, requiring to be measured for any purpose other than registry, have cargo on board, and ships which, requiring to be measured for the purpose of registry, cannot be measured by the rule above given, shall be measured by the following rule, hereinafter called Rule II. : — (1.) Measure the leng<£i on the upper deck from the outside of the outer plank at the stem to the aftside of the stern post, deducting there- from the distance between the aftside of the stem post and the rabbet of the stem post at the point where the counter plank crosses it ; measure also the greatest breadth of the ship to the out- side of the outer planking or wales, and then, having first marked on the outside of the ship on both sides thereof the height of the upper deck at the ship's sides, girt the ship at the greatest breadth in a direction perpendicular to the keel from the height so marked on the outside of the ship on the one side to the height so marked on the other side by passing a chain under the keel ; to half the girth thus taken add half the maia breadth ; square the sum ; multiply the result by the length of the ship taken as aforesaid ; then' multiply this product by the factor -0018 (eighteen ten- thousandths) in the case of ships built of wood, and by -0021 (twenty- one ten-thousandths) in the case of ships built of iron, and the products shall be deemed lie register tonnage of the ship* subject to the additions and deductions hereinafter mentioned. (2.) If there be a break, a poop, or other olosed-in space on the upper deck, the tonnage of such space shall be ascertained by multiplying together the mean length, breadth, and depth of such space and dividing the product by one hundred, and the quotient so obtained shall be deemed to be the tonnage of such space, and shall, [subject to the deduction for a olosed-in space appropriated to the crew as mentioned in Rule I. (i)], be added to the tonnage of the ship ascer- tained as aforesaid. XXIII. In every ship propelled by steam or other power requiring engine- room, an allowance shall be made for the space occupied by the propelling power, and the amount so allowed shall be deducted from the gross tonnage of the ship ascertained as aforesaid, and the remainder shall be deemed to be the register tonnage of such ship ; and such deduction shall be estimated as follows ; (that is to say,) (».) As regards ships propelled by paddle wheels in which the tonnage of the space solely occupied by and necessary for the proper working of the boilers and machinery is above twenty per cent, and under thirty per («) Repealed : 52 & 63 Vict. o. 43, s. 1 (2). Merchant Shipping Act. 829 cent, of the gross tonnage of the ship, such deduction shall he thirty-seren n. Ittaauremmt one-hundredths of such gross tonnage ; and in ships propelled by screws of Tonnage. in which the tonnage of such space is above thirteen per cent, and under twenty per cent, of such gross tonnage, such deduction shall be thirty-two one hundredths of such gross tonnage. (4.) As regards all other ships, the deduction shall, if the commissioners Maybemeasured of customs (A) and the owner both agree thereto, be estimated in the same yliere the space manner ; but either they or he may in their or his discretion require the H^'^snmll. space to be measured and the deduction estimated accordingly ; and whenever such measurement is so required, the deduction shall consist of the tonnage of the space actually occupied by or required to be inclosed for the proper working of the boilers and machinery, with the addition in the case of ships propelled by paddle-wheels of one-haH, and in the case of ships propelled by screws of three-fourths of the tonnage of such space ; and the measurement and use of such space shall be governed by the following rules ; (that is to say,) (1.) Measure the mean depth of the space from its crown to the ceiling Mode of mea- at the limber strake, measure also three, or if necessary, more surement. than three breadths of the space at the middle of its depth, taking one of such measurements at each end, and another at the middle of the length ; take the mean of such breadths ; measure also the mean length of the space between the foremost and aftermost bulkheads or limits of its length, excluding such parts, if any, as are not actually occupied by or required for the proper worlnng of the machinery ; multiply together these three dimensions of length, breadth, and depth, and the product will be the cubical contents of the space below the crown ; then find the cubical contents of the space or spaces, if any^ above the crown aforesaid, which are framed in for the machinery or for the admission of light and air, by multiplying together the length, depth and breadth thereof; add such contents to the cubical contents of the space below the crown ; divide the sum by 100 ; and the result shall be deemed to be the tonnage of the said space : (2.) If in any ship in which the space aforesaid is to be measured the in case of sepa^ engines ana boilers are fitted in separate compartments, the rate eompart- oontents of each shall be measured severally in like manner, ments. according to the above rules, and the sum of their several results shall be deemed to be the tonnage of the said space : (3.) In the case of screw steamers in which the space aforesaid is to be Shaft trunk of measured, the contents of the shaft trunk shall be added to and screw steamer. deemed to form part of such space, and shall be ascertained by multiplying together the mean length, breadth, and depth of the trunk, and dividing the product by 100 : (4.) If in any ship in wmoh the space aforesaid is to be measured any Alteration of alteration be made in the length or capacity of such space, or if engine room, any cabins be fitted in such space, such ship shall be deemed to be a ship not registered until remeasureraent : (5.) If in any ship in which the space aforesaid is to be measured any Penalty for goods or stores are stowed or carried in such space, the master carrying goods and owner each shaE be liable to a penalty not exceeding one "^ ™<^ space, hundred pounds. XXIV. In ascertaining the tonnage of open ships the upper edge of the Edlb rv. upper strake is to form the boundary Hue of measurement, and the depths — 7- shall be taken from an athwartship line, extending from upper edge to *^P™ °^'' ^"^ upper edge of the said strake at each division of the length. measur . XXV. Repealed by 34 & 35 Vict. 0. 110, a. 12, and see 36 & 37 Vict. 0. 86, 8. 3. XXVI. Whenever the tonnage of any ship has been ascertained and regis- Tonnage when tered in accordance with the provisions of this Act, the same shall thence- once aaoertaincd forth be deemed to be the tonnage of such ship, and be repeated in every to be ever after subsequent registry thereof, unless any alteration is made in the form or tonna^ capacity of snSi ship, or unless it is discovered that the tonnage of such ship has been erroneously computed ; and in either of suoh cases such ship shall (A) Now the Board of Trade, 35 & 36 Viet. 0. 73, s. 3. 830 •17 & 18 Vict. cap. 104. H. Measvrsment of Tonjiage. Bemeasurement of ships already registered may be made, but not to be compul- sory. Power to re- measure engine- rooms impro- perly extended. Officers may be appointed and regulations made for mea- surement of ships. be measured, and her tonnage determined and regietered according to the rules hereinbefore contained in that behalf. XXVII. The rules for the measurement of tonnage herein contained shall not make it necessary to alter the present registered tonnage of any British ship registered before this Act comes into operation ; but if the owner of any such ship desires to have the same remeasured according to these rules, he may apply to the commissioners of customs (J) for the purpose, and such commissioners shall thereupon, and on payment of such reasonable charge for the expenses of remeasurement, not exceeding the sum of seven shillings and sixpence for each transverse section, as they may authorise, direct such remeasurement to be made, and such ship shall thereupon be remeasured according to such rules as aforesaid, or according to such of them as may be applicable ; and the number denoting the register tonnage shall be altered accordingly. XXVIII. If it appears to the commissioners of customs (j) that in any steam ship measured before this Act comes into operation, store rooms or coal bunkers have been introduced into or thrown across the engine-room, so that the deduction from the tonnage on account of the engine-room is larger than it ought to be, the said commissioners may, if they think fit, direct such engine- room to be remeasured according to the rules in force before this Act comes into operation, excluding the space occupied by sneh store rooms or coal bunkers, or may, if the owners so desire, cause the ship to be remeasured according to the rules hereinbefore contained, and subject to the conditions contained in the last preceding section ; and, after remeasurement, the said commissioners shall cause the ship to be registered anew, or the registry thereof to be altered, as the case may require. XXIX. The commissioners of customs (/) may, with the sanction of the treasury, appoint such persons to superintend the survey and admeasurement of ships as tiiey think fit ; and may, with the approval of the Board of Trade, make such regulations for that purpose as may be necessary ; and also, with the like approval, make such modifications and alterations as from time to time become necessary in the tonnage rules hereby prescribed, in order to the more accurate and uniform application thereof, and the effectual carrying out of the principle of admeasurement therein adopted. Registry of BriliaTi Ships, Be^strars of Britieh ships. Registry of British Ships. XXX. The following persons are required to register British ships, and shall be deemed registrars for the purposes of this Act {k) ; (that is to say,) (1.) At any port or other place in the United Kingdom or Isle of Man approved by the commissioners of customs for the registry of ships, the collector, comptroller, or other principal ofSoer of customs for the time being : (2.) In the islands of Guernsey and Jersey, the principal officers of her Majesty's customs, together with the governor, lieutenant-governor, or other person administering the government of such islands re- spectively : (3.) In Malta, Gibraltar, and Heligoland, the governor, Keutenant- govemor, or other person administering the government of such places respectively : (4.) At any port or place so approved as aforesaid within the limits of the charter but not under flie government of the East India Company, and at which no custom house is established, the collector of duties, together with the governor, lieutenant-governor, or other person administering the government : (5.) At the ports of Calcutta, Madras, and Bombay, themaster attendants, and at any other port or place so approved, as aforesaid, within the limits of the charter and under the government of the East India Company, the collector of duties, or any other person of six years' standing in the civil service of the said company who is appointed by any of the governments of the said company to act for this purpose : U) By 38 & 36 Viot. o. 73, a. 3, the Board of Trade. (k) See 32 Vict. c. 11, s. 6. Merchant Shipping Act. 831 (6.) At every other port or place so approved as aforesaid within her !!• P.'^'^TP '■f Majesty's dominions abroad, the collector, comptroller, or other si vipa. principal officer of customs or of navigation lavrs, or if there is no such officer resident at snoh port or place, the governor, lieutenant- governor, or other person administering the government of the pos- session in which such port or place is situate. XXXI. The governor, lieutenant-governor, or other person administering Substitution of the government in any British possession where any ship is registered under ?°'^t'^^j^^™°''' the authority of this Act shall, with regard to the performance of any act or sjoners of cus- thing relating to the registry of a ship or of any interest therein, be considered toms, and of in all respects as occupying the place of the commissioners of customs ; and consul for any British consular officer shall, in any place where there is no justice of the J"^'"*- peace, be authorized to take any declaration hereby required or permitted to be made in the presence of a justice of the peace(?). XXXII. Every registrar shall keep a book, to be called " the Register Begistrar to Book," and enter therein the particulars hereinafter required to be re- ^f^tf^^**' gistered. XXXIII. The port or place at which any British ship is registered for the Port of registry time being shaU be considered her port of registry, or the port to which she °' Bntish ship, belongs. XXXIV. Repealed by 31 & 35 Vict. c. 110, s. 12 ; and see 36 & 37 Vict, c. 86, B. 3. XXXV. Every application for the registry of a ship shall, in the case of Application for individuals, be made by the person requiring to be registered as owner, or by rcgistryi by some one or more of such persons if more than one, or by his or their duly ^oaAe. authorized agent, and in the case of bodies corporate by their duly authorized agent ; the authority of such agent, if appointed by individuals, to be testified by some writing imder the hands of the appointors, and if appointed by a body corporate, by some instrument under the common seal of such body corporate. XXXVI. Before registry the ship shall be surveyed by a person duly ap- Survey of pointed under this Act ; and such surveyor shall grant a certificate in the ^'"P- form marked (A) in the schedule hereto, specifying her tonnage, buUd, and such other particulars descriptive of the identity of the ship, as may from time to time be required by the Board of Trade ; and such certificate shall be delivered to the registrar before registry. XXXVII. The following rules shall be observed with respect to entries in Eules as to the register book ; (that is to say,) enteies in rc- (1.) The property in a ship shall be divided into sixty-four shares : gister book. (2.) Subject to the provisions with respect to joint owners or owner by transmission hereinafter contained, not more than thirty-two (m) indi- viduals shall be entitled to be registered at the same time as owners of any one ship ; but this rule shall not affect the beneficial title of any number of persons or of any company represented by or claiming under or through any registered owner or joint owner : (3.) No person shall be entitled to be registered as owner of any fractional part of a share in a ship ; but any number of persons, not exceeding five, may be registered as joint owners of a ship or of a share or shares therein : (4.) Joint owners shall bo considered as constituting one person only as regards the foregoing rule relating to the number of persons entitled to be registered as owners, and shall not be entitled to dispose in severalty of any interest in any ship or in any share or shares therein in respect of which they are registered : {5.) A body corporate may be registered as owner by its corporate name. XXXVIII. No person shall be entitled to be registered as owner of a ship Declaration of or any share therein until he has made and subscribed a declaration in the ^^^^ '^ form marked (B) in the schedule hereto, referring to the ship as described in owner, the certificate of the surveyor, and containing the following particulars ; (that is to say,) (1.) A statement of his qualification to be an owner of a share in a British ship: (t) See 50 & 51 Vict. o. 62, s. 3, infra. \m) Sixty-four by 43 & 44 Viot. o. 18, s. 2. 832 17 & 18 Vict. cap. 104. H. Registry of Britiah Ships. Declaxation of ownership by body corporate. Evidence to be produced on registry. Penalty on builder for false certificate. (2.) A statement of the time when and the place -where such ship -was built, or (if the ship is foreign bmlt, and the time and place of building not known) a statement that she is foreign built, and that he does not know the time or place of her bmlding ; and, in addition thereto, in the case of a foreign ship, a statement of her foreign name, or (in the case of a ship condemned) a statement of the time, place and court at and by which she was condemned : (3.) A statement of the name of the master : (4.) A statement of the number of shares in such ship of which he is entitled to be registered as owner : (6.) A denial that, to the best of his knowledge and belief, any unquali- fied person or body of persons is entitled as owner to any legal or beneficial [n) interest in such ship or amy share therein : The above declaration of ownership shall be made and subscribed in the presence of the registrar i£ the declarant reside within five miles of the custom house of the port of registry, but if beyond that distance, in the presence of any registrar or of any justice of the peace. XXXIX. No body corporate shall be entitled to be registered as owner of a ship or of any share therein until the secretary or other duly appointed public officer of such body corporate has made and subscribed in the presence of the registrar of the port of registry a declaration in the form marked (0) in the Schedule hereto, referring to the ship as described in the certificate of the surveyor, and containing the following particulars ; (that is to say,) (1.) A statement of such circumstances of the constitution and business of such body corporate as prove it to be qualified to own a British ship: A statement of the time when and the place where such ship was built, or (if the ship is foreign built, and the time and place of building unknown) a statement that she is foreign built, and that he does not know the time or place of her building ; and, in addition thereto, in the case of a foreign ship, a statement of her foreign name, or (in the case of a ship condemned) a statement of the time, place and court at and by which she was condemned : A statement of the name of the master : A statement of the number of shares in such ship of which such body corporate is owner : A denial that, to the best of his knowledge and belief, any unqualified person or body of persons is entitled as owner to any legal or bene- ficial («) interest in such ship, or any share therein. Upon the first registry of a ship there shall, in addition to the decla- ration of ownership, be produced the following evidence ; (that is to say,) (I .) In the case of a British-buUt ship, a certificate (which the builder is hereby required to grant under his hand) containing a true account of the proper denomination and of the tonnage of such ship as esti- mated by him, and of the time when and of the place where such ship was bmlt, together with the name of the party (if any) on whose account he has built the same, and, if any sale or sales have taken place, the bill or bills of sale under which the ship or share therein has become vested in the party requiring to be registered as owner : (2.) In the case of a foreign-built ship, the same evidence as in the case of a British-built ship, unless the person requiring to be registered as owner, or, in the case of a body corporate, the duly appointed officer, declares that the time or place of her building is unknown, or that the builder's certificate cannot be procured, in which ease there shall be reqidred only the bill or biQs of sale under which the ship or share therein became vested in the party requiring to be registered as owner thereof : (3.) In the case of a ship condemned by any competent court, an official copy of the condemnation of such ship. XLI. If any builder wilfully makes a false statement in any certificate hereby required to be granted by him, he shall for every such ofience incur a penalty not exceeding one hundred pounds. (2-; (3.) (40 (5.) XL. («) See 26 & 26 Viot. c. 63, s. 3, infra^ u it!' Merchant Shipping Act, 833 XLII. As soon as the foregoing requisites to the due registry of a ship n. .^'3'^ "f have been complied with, the registrar shall enter in the register book the Ships. following particulars relating to such ship ; (that is to say,) Particulars of The name of the ship and of the port to which she belongs : entry in register The details as to her tonnage, build and description comprised in the book, certificate hereinbefore directed to be given by the surveyor : (3.) The several particulars as to her origin stated in the declaration or declarations of ownership : (4.) The names and descriptions of her registered owner or owners, and if there is more than one such owner, the proportions in which they are interested in such ship. XLIII. No notice of any trust, express, implied or constructive, shall be No notice taken entered in the register book, or receivable, by the registrar ; and, subject to »' trusts, any rights and powers appearing by the register book to be vested in any other party, the registered owner of any ship or share therein shall have power absolutely to dispose, in manner hereinafter mentioned, of such ship or share, and to give effectual receipts for any money paid or advanced by way of consideration (o) . Certifioate of Eegiatry. Oertiflcale of XLIV. Upon the completion of the registry of any ship the registrar . — . shall grant a certificate of registry in the form marked (D) in the Schedule Certificate of hereto, comprising the following particulars ; (that is to say,) olmteS '" ^ The name of the ship and of the port to which she belongs : ^ The details as to her tonnage, build, and description comprised in the certificate hereinbefore directed to be given by the surveyor : The name of her master : The several particulars as to her origin stated in the declaration or declarations of ownership : (6.) The names and descriptions of her registered owner or owners, and if there is more than one such owner, the proportions in which they are respectively interested, indorsed upon such certificate. XLV. Whenever any change takes place in the registered ownership of Change of any ship, then, if sijch change occurs at a time when the ship is at her port oiraers to be of registry, the master shall forthwith deliver the certificate of registry to MraflMte°of the registrar, and he shall indorse thereon a memorandum of such change ; but registry, if such change occurs during the absence of the ship from her port of registry, then upon her first return to such port the master shall deliver the certificate of registry to the registrar, and he shall indorse thereon a like memorandum of the change ; or if she previously arrives at any port where there is a British registrar, such registrar shall, upon being advised by the registrar of her port of registry of the change having taken place, indorse a like memo- randum thereof on the certificate of registry, and may for that purpose require the certificate to be delivered to him, so that the ship be not thereby detained ; and any master who fails to deliver to the registrar the certificate of registry as hereinbefore required shall incur a penalty not exceeding one hundred pounds. XL VI. Whenever the master of any British registered ship is changed, Change of the following persons, that is to say, if such change is made in consequence master to be of the sentence of any naval court, the presiding officer of such court, but if ^^^^fof the change takes place from any other cause, the registrar, or if there is no registry. registrar the British consular officer resident at the port where such change takes place, shall indorse on the certificate of registry a memorandum of such change, and subscribe his name to such indorsement, and forthwith report the change of master to the commissioners of customs {p) in London ; and the officers of customs at any port situate within her Majesty's dominions may refuse to admit any person to do any act at such port as master of any British ship unless his name is inserted in or indorsed upon the certificate of remstry of such ship as the last appointed master thereof. XL VII. The registrar may, with the sanction of the commissioners of Power to grant customs, upon the delivery up to him of the former certificate of registry, '°-^^ oertiticate. grant a new certificate in the place of the one so delivered up. (o) See 25 & 26 Vict. o. 63, s. 3, infra. \p) Now a registrar-general of seamen : 35 & 36 Vict. c. 73, infra. 834 17 & 18 Vict. cap. 104. n. Oertifiaite of Regietry. Provision in case of loss of certi- ficate. Provisional certificate to be delivered up. Custody of certificate. Delivery of certificate may be required. Penalty for detention. Mode of pro- ceeding, if de- taining: party abscond. Penalty for using improper certificate. Certificate of ship lost or ceasing to be British to be delivered up. XLVIII. In the event of tte certificate of registry of any ship being mis- laid, lost or destroyed, if such event occurs at any port in the United Kingdom, the ship being registered in the United Kingdom, or at any port in any British possession, the ship being registered in the same British pos- session, then the registrar of her port of registry shall grant a new certificate of registry in lieu of and as a substitute for her original certificate of registry ; but if such event occurs elsewhere, the master or some other person having knowledge of the circumstances shall make a declaration before the registrar of any port having a British registrar at which such ship is at the tune or first arrives after such mislaying, loss or destruction ; and such declaration shall state the facts of the case, and the names and descriptions of the regis- tered owners of such febip, to the best of the declarant's knowledge and belief ; and the registrar shall thereupon grant a provisional certificate as near to the form appointed by this Act as circumstances permit, and shall insert therein a statement of the circumstances under which such provisional certificate is granted. XLIX. Every such provisional certificate shall, within ten days after the first subsequent arrival of the ship at her port of discharge in the United Kingdom, if registered in the United Kingdom, or, if registered elsewhere, at her port of discharge in the British possession within which her port of registry is situate, be delivered up to the registrar thereof, who shall there- upon grant a new one, as near to the form appointed by this Act as circum- stances permit ; and if the master neglects to deliver up such certificate vrithin such time he shall incur a penalty not exceeding fifty pounds. L. The certificate of registry shall be used only for the lawful navigation of the ship, and shall not be subject to detention by reason of any title, lien, icharge or interest whatsoever, which any owner, mortgagee or other person may have or claim to have on or in the ship described in such certificate ; and if any person whatever, whether interested or not in the ship, refuses on request to deliver up such certificate when in his possession or under his control to the person for the time being entitled to the custody thereof for the purposes of such lawful navigation as aforesaid, or to any registrar, officer of the customs or other person legally entitled to require such delivery, it shall be lawful for any justice, by warrant under his hand and seal, or for any court capable of taking cognisance of such matter, to cause the person so refusing to appear before him and to be examined touching such refusal ; and unless it is proved to the satisfaction of such justice or court that there was reasonable cause for such refusal, the ofEender shall incur a penalty not exceeding one hundred pounds ; but if it is made to appear to such justice or court that the certificate is lost, the party complained of shall be discharged, and such justice or court shall thereupon certify that the certificate of registry is lost. LI. If the person charged with such detainer or refusal is proved to have absconded, so that the warrant of the justice or process of the court cannot be served upon him, or if he persists in his refusal to deliver the certificate, such justice or court shall certify the fact, and the same proceedings may then be taken as in the case of a certificate of registry mislaid, lost or destroyed, or as near thereto as circumstances permit. LII. If the master or owner of any ship uses or attempts to use for the navigation of such ship a certificate of registry not legally granted in respect of such ship, he shall be guilty of misdemeanor, and it shall be lawful for any commissioned officer on full pay in the military or naval service of her Majesty, or any British officer of customs, or any British consular officer, to seize and detain such ship, and to bring her for adjudication before the High Court of Admiralty in England or Ireland or any Court haying Admiralty jurisdiction in her Majesty's dominions ; and if such court is of opinion that such use or attempt at use has taken place, it shall pronounce such ship, with her tackle, apparel and furniture to be forfeited to her Majesty, and may award such portion of the proceeds arising from the sale of such ship as it mw think just to the officer so bringing in the same for adjudication. LIII. If any registered ship is either actually or constructively lost, taken by the enemy, burnt or broken up, or if by reason of a transfer to any persons not qualified to be owners of British ships, or of any other matter or thing, any such ship as aforesaid ceases to be a British ship, every person who at the tune of tiie occurrence of any of the aforesaid events owns such ship or any share therein shall, immediately upon obtaining knowledge of amy such Mekchant Shipping Act. 835 ooourronoe, if no notice thereof has already been given to the registrar at the H- Certificate of port of registry of such ship, give such notice to him, and he shall make an B egmtr y. entry thereof in his register book ; and, except in cases where the certificate of regfistry is lost or destroyed, the master of every ship so circumstanced as aforesaid shall immediately, if such event occurs in port, but if the same occurs elsewhere, then witbim ten days after his arrival in port, deliver the certificate of registry of such ship to the registrar, or if there be no registrar, to the British consular ofBcer at such port, and such registrar, if he is not himself the registrar of her port of registay, or such British consular officer, shall forthwith forward the certificate so delivered to him to the registrar of the port of registry of the ship ; and every owner and master who, without reasonable cause, makes default in obeying the provisions of this section, shall for each offence incur a penalty not exceeding one hundred pounds. LrV. If any ship becomes the property of persons qualified to be owners Provisional of British ships at any foreign port, the British consular officer resident at certifltiate for such port may grant the master of such ship, upon his application, a provi- yestcd^^in^Bh sional certificate stating — ■ owners atfoieign The name of the ship ; port. The time and place of lier purchase, and the names of her purchasers ; The name of her master ; The best particulars as to her tonnage, buUd, and description that he is able to obtain ; And he shall forward a copy of such certificate, at the first convenient oppor- tunity, to the commissioners of customs [q) in London : the certificate so granted shall possess the same force as a certificate of registry until the expiration of six months, or until such earlier time as the ship arrives at some port where there is a British registrar ; but upon the expiration of such period, or upon arrival at such port, shall be void to all intents. Tramfera and Transmissions. Trans/tra and , , . Transmissions, LV. A registered ship or any share therein, when disposed of to persons qualified to be owners of British ships, shall be transferred by bill of sale ; Transfer of ships and such bill of sale shall contain such description of the ship as is contained thaein?' in the certificate of the surveyor, or such other description as may be suffi- cient to identify the ship to the satisfaction of the registrar, and shall be according to the form marked (E) in the Schedule hereto, or as near thereto as oiroumstances permit, and snail be executed by the transferor in the presence of and be attested by one or more witnesses. LVI. No individual shall be entitled to be registered as transferee of a Declaration to ship or any share therein until he has made a declaration in the form be made by marked (F) in the Schedule hereto, stating his qualification to be registered transferee, as owner of a share in a British ship, and containing a denial similar to the denial hereinbefore required to be contained in a declaration of ownership by an original owner ; and no body corporate shall be entitled to be registered as transferee of a ship or any share therein until the secretary or other duly appointed public officer of such body corporate has made a declaration in the form marked (Gr) in the Schedule hereto, stating the name of such body cor- porate, and such circumstances of its constitution and business as may prove it to be qualified to own a British ship, and containing a denial similar to the denial hereinbefore required to be contained in a declaration of ownership made on behalf of a body corporate ; in the case of an individual, the above declaration shall be made, if he resides within five miles of the custom house of the port of registry in the presence of the registrar, but if beyond that distance ia the presence of any registrar or of any justice of the peace ; in the case of a body corporate the declaration shall be made in the presence of the registrar of the port of registry. LVII. Every biU of sale for the transfer of any registered ship, or of any Registration of share therein, when duly executed, shall be produced to the registrar of the transfer, port at which the ship is registered, together with the declaration herein- before required to be made by a transferee ; and the registrar shall thereupon enter in the register book the name of the transferee, as owner of the ship or share comprised in such biU of sale, and shall indorse on the bill of sale the (?) Now the Eegistrar-General of Seamen : 35 & 36 Vict. o. 73, s. 4, infra. VOL. II. — S, 3 K 836 17 & 18 Vict. cap. 104. Transmission of shares by death, bankruptcy, or marriage. II. Transfers and fact of sucli entry liaTJBg teen made, with the date and hour thereof ; and Transmissions, g^n i^jug gf g^jg of ^ny ship or shares in a ship shall be entered in the registry book in the order of their prodnotion to the registrar. LVIII. If the property in any ship, or in any share therein, becomes trans- mitted in consequence of the death or bankruptcy or insolvency of any regis- tered owner, or in consequence of the marriage of any female registered owner, or by any lawful means other than by a transfer according to the pro- visions of this Act, such transmission shall be authenticated by a declaration of the person to whom such property has been transmitted, made in the form marked (H) in the Schedule hereto, and containing the several statements hereinbefore required to be contained in the declaration of a transferee, or as near thereto as circumstances permit, and in addition, a statement describing the manner in which and the party to whom such property has been trans- mitted ; and such declaration shall be made and subscribed, if the declarant resides at or within five miles of the custom house of the port of registry, in the presence of the registrar, but if beyond that distance in the presence of any registrar or of any justice of the peace. LIX. If such transmission has taken place by virtue of the bankruptcy or mission by bank- insolvency of any registered owner, the said declaration shall be accompanied ^we T^^^OT an ^^ ^^"^ evidence as may for the time being be receivable in courts of justice Proof of trans- intestacy. Begistration of transmitted shore. Registrar to retain certain evidence. Unqualified oTvner entitled by transmission may apply to camt for sale of ship. Order to be made by court. as proof of the title of parties claiming under any bankruptcy or insolvency ; and if such transmission has taken place by virtue of the marriage of a female owner, the said declaration shall be accompanied by a copy of the register of such marriage or other legal evidence of the celebration thereof, and shall declare the identity of the said female owner ; and if such transmission has taken place by virtue of any. testamentary instrument or by intestacy, then in England, Wales, and Ireland the said declaration shall be accompanied by the probate of the will, or the letters of administration or an official extract therefrom, and in Scotland, or in any British possession, by the will or any copy thereof that may be evidence by the laws of Scotland or of such posses- sion, or by letters of administration or any copy thereof, or by such other document as may by the laws of Scotland or of such possession be receivable in the courts of judicature thereof as proof of the person entitled upon an intestacy. LX. The registrar, upon the receipt of such declaration so accompanied as aforesaid, shall enter the name of the person or persons entitled under such transmission in the register book as owner or owners of the ship or share therein in respect of which such transmission has taken place ; and such per- sons, if more than one, shall, however numerous, be considered ae one person only as regards the riile hereinbefore contained relating to the number of persons entitled to be registered as owners. LXI. Of the documents hereby required to be produced to the registrar, he shall retain in his possession the following ; that is to say, the surveyor's cer- tificate, the builder's certificate, the copy of the condemnation, and all declarations of ownership. LXII. Whenever any property in a ship or share in a ship becomes vested by transmission on the death of any owner or on the marriage of any female owner in any person not qualified to be the owner of British ships, it shall be lawful, if such ship is registered in England or Ireland for the Court of Chancery, if in Scotland for the Court of Session, or if in any British posses- sion for any court possessing the principal civil jurisdiction within such pos- session, upon an application made by or on behalf of such unqualified person, to order a sale to be made of the property so transmitted, and to direct the proceeds of such sale, after deducting the expenses thereof, to be paid to the person entitled under such transmission, or oflierwise as the court may direct ; and it shall be in the discretion of any such court as aforesaid to make or refuse any such order for sale, and to annex thereto any terms or conditions, and to require any evidence in support of such application it may think fit, and generally to act in the premises in such manner as the justice of the case requires. IjXIII. Every order for a sale made by such court as aforesaid shall eon- tain a declaration vesting the right to transfer the ship or share so to be sold in some person or persons named by the court, and sudi nominee or nominees shall thereupon be entitled to tranaer such ship or share in the same manner and to the same extent, as if he or they were the registered owner or owners of the same ; and every registrar shall obey the requisition of such nominee Merchant Shipping Act. 837 or nominees as aforesaid in respect of any transfer to the same extent as he n. Tramferami would be compellable to obey the requisition of any registered owner or S^ansmisswna. owners of such ship or share. LXrV. Every such application as aforesaid for sale shall be made within Liimt of time four weeks after the occurrence of the event on which such transmission has 'or application, taken place, or within such further time as such court as aforesaid may allow, such time not in any case to exceed the space of one year from the date of such occurrence as aforesaid ; and in the event of no such application being made within such period as aforesaid, or of such court refusing to accede thereto, the ship or share so transmitted shall thereupon be forfeited in manner hereinafter directed with respect to interests acquired by unqualified owners in ships using a British flag and assuming the British character. LXV. It shall be lawful in England or Ireland for the Court of Chan- Power of courts eery (r), in Scotland for the Court of Session, in any British possession for traSws'* any court, possessing the principal civil jurisdiction within such possession, without prejudice to the exercise of an^ other power such court may possess, upon the summary application of any mterestcd person made either by peti- tion or otherwise, and either ex parte, or upon service of notice on any other person, as the court may direct, to issue an order prohibiting for a time to be named in such order any dealing with such ship or share ; and it shall be in the discretion of such court to make or refuse any such order, and to annex thereto any terms or conditions it may think fit, and to discharge such order when granted with or without costs, and generally to act in the premises in such manner as the justice of the case requires ; and every registrar, without being made a party to the proceedings, upon being served with such order, or an ofBcial copy thereof, shall obey the same. Mortgages. Mortgage. LXVI. A registered ship or any share therein may be made a security for Mortgage of a loan or other valuable consideration ; and the instrument creating such ships and sliarea security, hereinafter termed a "mortgage," shall be in the form marked (I) tlicrein. in the Schedule hereto, or as near thereto as circumstances permit ; and on the production of such instrument the registrar of the port at which the ship is registered shall record the same in the register book («). LXVII. Every such mortgage shall be recorded by the registrar in the Mortgages to be order of time in which the same is produced to him for that purpose ; and the registered in registrar shall, by memorandum under his hand, notify on the instrument of produoaon?' " mortgage that the same has been recorded by him, stating the date and hour of such record. LXVIII. Whenever any registered mortgage has been discharged, the Entry of dis- registrar shall, on the production of the mortgage deed, with a receipt for '^^ige of the mortgage money indorsed thereon, duly signed and attested, make an ^°"^°^^- entry in the register book to the effect that such mortgage has been dis- charged ; and upon such entry being made, the estate, if any, which passed to the mortgagee shall vest in the same person or persons in whom the same would, having regard to intervening acts and circumstances, if any, have vested if no such mortgage had ever been made. liXIX. If there is more than one mortgage registered of the same ship or Priority of morfc- share therein, the mortgagees shall, notwithstanding any express, implied, S^™. or constructive notice, be entitled in priority one over the other according to the date at which each instrument is recorded in the register books, and not according to the date of each instrument itself. liXX. A mortgagee shall not by reason of his mortgage be deemed to be Mortgagee not the owner of a ship or any share lierein, nor shall the mortgagor be deemed JlSl^'*™^'* to have ceased to be owner of such mortgaged ship or share, except in so far as may be necessary for making such ship or share available as a security for the mortgage debt. LXXI. Every registered mortgagee shall have power absolutely to dis- Mortgagee to pose of the ship or share in respect of which he is registered, and to give '^^ power of effectual receipts for the purchase -money : but if there are more persons tiian (r) See 24 Viot. c. 10, s. 12. (s) See 8 & 9 Vict. o. 89, s. 45. 3k2 833 18 Vict. cap. 104. H. Morlgages, liiglits of mort- gagee not affected by any act of bank- ruptcy of mortgagor. Tranrfer of mortgage^ Transmission of interest of mort- gagee by death, bankruptcy, or marriage. Entry of trans- mitted mort- gage. Certificates of Mortgage and Sale. Powers of mort- gage and sale may be conferred by certitLcate, Bequisites for certiiicates of mortgage and Bale. one registered as mortgagees of tlie same ship or share, no subsequent mort- gagee shall, except under the order of some court capable of taking cognizance of such matters, sell such ship or share without the concurrence of every prior mortgagee. LXXII." No registered mortgage of any ship or of any share therein shall be affected by any act of bankruptcy committed by the mortgagor after the date of the record of such mortgage, notwithstanding such mortgagor at the time of his becoming bankrupt may have in his possession and disposition and be reputed owner of such ship or shai'e thereof ; and such mortgage shall be preferred to any right, claim or interest in such ship or any share thereof ■which may belong to the assignees of such bankrupt. LXXIII. A registered mortgage of any ship or share in a ship may be transferred to any person, and the instrument creating such transfer shall be in the form marked (K) in the Schedule hereto, and on the production of such instrument the registrar shall enter in the register book the name of the transferee as mortgagee of the ship or shares therein mentioned, and shall by memorandum under his hand record on the instrument of transfer that the same has been recorded by him, stating the date and hour of such record. LXXrV. If the interest of any mortgagee in any ship or in any share therein becomes transmitted in consequence of death, bankruptcy or insol- vency, or in consequence of the marriage of any female mortgagee, or by any lawful means other than by a transfer according to the provisions of this Act, such transmission shall be authenticated by a declaration of the person to whom such interest has been transmitted, made in the form marked (L) in the Schedule hereto, and containing a statement describing the manner in which and the party to whom such property has been transmitted ; and such declaration shaU be made and subscribed, if the declarant resides at or ■within five miles of the custom house of the port of registry, in the presence of the registrar, but if beyond that distance, in the presence of any registrar or of any justice of the peace, and sbaU be accompanied by such evidence as is hereinbefore required to authenticate a corresponding transmission of pro- perty from one registered owner to another. LXXV. The registrar, upon the receipt of such declaration, and the pro* duotion of such evidence as aforesaid, shall enter the name of the person or persons entitled under such transmission in the register book as mortgagee or mortgagees of the ship or share in respect of which such transmission has taken place. Certificates of Mortgage and Sale. LXXVI. Any registered owner, if desirous of disposing by way of mort- gage or sale of the ship or share in respect of which he is registered at any place out of the country or possession in which the port of registry of such ship is situate, may apply to the registrar, who shall thereupon enable him to do so by granting such certificates as are hereinafter mentioned, to be called respectively certificates of mortgage or certificates of sale, according as they purport to give a power to mortgage or a power to sell. LXXVII. Previously to any certificate of mortgage or sale being granted, the appHoant shall state to the registrar, to be by him entered in the register book, the following particulars ; (that is to say,) (!)■ The names of the persons by whom the power mentioned in such certificate is to be exercised, and in the case of a mortgage the maximum amount of charge to be created , if it is intended to fix any such maximum, and in the case of a sale the xninimum price at which a sale is to be made, if it is intended to fix any such mmunum: Bestrictions on certiiicatea of mortgage and (2). The specific place or places where such power is to be exercised, or if no place be specified, then that it may be exercised anywhere, subject to the provisions hereinafter contained : (3). The limit of time within which such power may be exercised* LXXVIII. No certificate of mortgage or sale shall be granted so as to authorise any mortgage or sale to be made — At any place within the United Kingdom, if the port of registry of the ship be situate in the United Kingdom ; or at anyplace witliin the same Merchant Shipping 4-ct. 839 British possession if the port of rejristry is situate within a British pos- D. Certificates of session; or, *%T By any person not named in the certificate. ' LXXIX. Certificates of mortgage and sale shall be in the forms mar]{ed Forms of oerti- respeotively (M) and (N) in the Schedule hereto, and shall contain a state- ^°°'**^ °i ^5*^ ment of the several particulars hereinbefore directed to be entered in the ^'^^ *° register book, and in addition thereto an enumeration of any registered mortgages or certificates of mortgage or sale aSecting the ships or shares in respect of which such certificates are gfiven. LXXX. The following rules shall be observed as to certificates of mort- Eules as to gage; (that is to say,) mS^^^'°^ (1). The power shall be exercised in conformity with the directions con- "*^ • tained in the certificate : (2). A record of every mortgage made thereunder shall be indorsed thereon by a registrar or British consular officer : (3). No mortgage bona fide made thereunder shall be impeached by reason of the person by whom the power was given dying before the making of such mortgage : (4). Whenever the certificate contains a specification of the place or places at which, and a limit of time not exceeding twelve months within which, the power is to be exercised, no mortgage bonS fide made to a mortgagee without notice shall be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given : (6). Every mortgage which is so registered as aforesaid on the certificate shall have priority over all mortgages of the same ship or share created subsequently to the date of the entry of the certificate in the register book ; and if there be more mortgages than one so indorsed, the respective mortgagees claiming thereunder shall, notwithstand- ing any express, implied or constructive notice, be entitled one before the other aooording to the date at which a record of each instrument is indorsed on the certificate, and not according to the date of the instrument creating the mortgage : (6). Subject to the foregoing rules every mortgagee whose mortgage is registered on the certificate shall have the same rights and powers, and be subject to the same liabilities as he would have had and been subject to if his mortgage had been registered in the register book instead of on the certificate : (7). The discharge of any mortgage so registered on the certificate may be indorsed thereon by any registrar or British oonsidar officer, upon the production of such evidence as is hereby required to be produced to the registrar on the entry of the discharge of a mortgage in the register book ; and upon such indorsement being made, the estate, if any, which passed to the mortgagee shall vest in the same person or persons in whom the same would, having regard to intervening acts and circumstances, if any, have vested if no such mortgage had been made : (8). Upon the delivery of any certificate of mortgage to the registrar by whom it was granted, he shall, after recording in the register book in such manner as to preserve its priority any unsatisfied mortgage registered thereon, cancel such certificate, and enter the fact of such cancellation in the register book ; and every certificate so cancelled shall be void to all intents. LXXXI. The following rules shall be observed as to certificates of sale ; Eules as to cer- (that is to say, ) tifleates of sale. (1). No such certificate shall be granted except for the sale of an entire ship: (2). The power shall be exercised in conformity with the directions con- tained in the certificate : (3). No sale bonS fide made to a purchaser for valuable consideration shall be impeached by reason of the person by whom the power was given dying before the making of such sale : (4). "Whenever the certificate contains a specification of the place or places at which, and » limit of time not exceeding twelve months within which, the power is to be exercised, no sale bona fide made to 840 17 & 18 Vict. cap. 104, U. Certificates of Mortgage arid Sale, Power of com- missioners of customs in case of loss of certi- ficate of mort- gage or sole. Beyocation of certificates of mortgage and a purchaser for valuable consideration without notice shall be im- peached by reason of the bankruptcy or insolvency of the person by ■whom the power was given : (5). Any transfer made to a person qualified to be the owner of British ships, shall be by bill of sale in the form hereinbefore mentioned, or as near thereto as circumstances pemait : (6). If the ship is sold to a party qualified to hold British ships, the ship shall be registered anew, but notice of all mortgages enumerated on the certificate of sale shall be entered in. the register book: (7). Previously to such registry anew there shall be produced to the registrar required to make the same the bill of sale by which the ship is transferred, the certificate of sale and the certificate of regis- try of such ship : (8). Such last-mentioned registrar shall retain the certificates of sale and registry, and after having indorsed on both of such instruments an entry of the fact of a sale having taken place, shall forward the said certificates to the registrar of the port appearing on such certificates to be the former port of registry of the ship, and such last-men- tioned registrar ahall thereupon make a memorandum of the sale in his register book, and the registry of the ship in such book shall be considered as closed, except as far as relates to any unsatisfied mortgages or existing certmcates of mortgage entered therein : (9). On such registry anew the description of the ship contained in her original certificate of registry may be transferred to the new register book, vrithout her being re- surveyed, and the declaration to be made by the purchaser SiaR be the same as -would be required to be made by an ordinary transferee : (10). If the ship is sold to a party not qualified to be the owner of a British ship, the bin of sale by which the ship is transferred, the certificate of sale, and the certificate of registry shaU be produced to some registrar or consular officer, who shall retain the certificates of sale and registry, and having indorsed thereon the fact of such ship having been sold to persons not qualified to be owners of British ships, shall forward such certificates to the registrar of the port appearing on the certificate of registry to be the port of registiy of such ship ; and such last-mentioned registrar ahaU thereupon make a memorandum of the sale in his register book, and the registry of the ship in such book shall be considered as closed, except so far as relates to any unsatisfied mortgages or existing certificates of mort- gage entered therein : (11). If upon a sale being made to an unqualified person default is made in the production of such certificates as are mentioned in the last rule, such unqualified person shall be considered by British law as having acquired no title to or interest in the ship ; and further, the party upon whose application such certificate was granted, and the per- sons exercising the power, shall each incur a penalty not exceeding one hundred pounds : (12). If no sale is made in conformity with the certificate of sale, such certificate shall be delivered to the registrar by whom the same was granted ; and such registrar shall thereupon cancel it, and enter the fact of such cancellation in the register book ; and every certificate so cancelled shall be void to all intents. LXXXII. Upon proof at any time to the satisfaction of the commissioners of customs that any certificate of mortgage or sale is lost or so obliterated as to be useless, and that the powers thereby given have never been exercised, or if they have been exercised, then upon proof of the several matters and things that have been done thereunder, it shall be lawful for the registrar, with the sanction of the said commissioners, as oircumstanoes may require, either to issue a new certificate, or to direct such entries to be made in the register book, or such other matter or thing to be done as might have been made or done if no such loss or obliteration had taken place. LXXXTII. The registered owner for the time being of any ship or share therein in respect of which a certificate of mortgage or sale has been granted, specifying the place or places where the power thereby given is to be exer- cised, may, by an instrument under his hand made in the form (0) in the Schedule hereto, or as near thereto as oiroiimstanoes permit, authorise the Merchant Shipping Act. 841 registrar by ■whom Buoh certificate was granted to grive notice to the registrar H. Oeriijicates of or consular officer, registrars or consular officers, at such place or places, that ^ort^ge and such certificate is revoked ; and notice shall be given accordingly ; and aU " registrars or consular officers receiving such notice shall record the same, and shall exhibit the same to aU persons who may apply to them for the purpose of effecting or obtainii^ a mortgage or transfer under the said certi- ficate of mortgage or sale ; and after such notice has been so recorded the said certificate shall, so far as concerns any mortgage or sale to be thereafter made at such place, be deemed to be revoked and of no effect ; and every registrar or consular officer recording any such notice shall thereupon state to the registrar by whom the certificate was granted whether any previous exercise of the power to which such certificate refers has been taken. Begistry anew, and Transfer of Registry . liegistry anew, " " ' J J D a „„^ Tramfer of LXXXIV. Whenever any registered ship is so altered as not to correspond M egMr y. with the particulars relating to her tonnage or description contained in the Alteration in register book, then if such alteration is made at a port where there is a ship to be registrar, the registrar of such port, but if made elsewhere, the registrar of registered, the first port having a registrar at which the ship arrives after her altera- tion, shall, on application made to him, and on the receipt of a certificate from the proper surveyor specifying the nature of such alteration, either retain the old certificate of registry and grant a new certificate of registry containing a description of the ship as altered, or indorse on the existing certificate a memorandum of such alteration, and subscribe his name to such indorsement ; and the registrar to whom such application as aforesaid is made, if he is the registrar of the port of registry of the ship, shall himself enter in his register book the particulars of the alteration so made, and the fact of such new certificate having been granted or indorsement having been made on the existing certificate ; but if he is not such last-mentioned registrar, he shall forthwith report such particulars and facts as aforesaid, aooompanied by the old certificate of registry in cases where a new one has been granted, to the registrar of the port of registry of the ship, who shall retain such old certificate (if any), and enter such particulars and facts in his register book accordingly. LXXXV. When the registrar, to whom application is made in respect of On alteration any such alteration as aforesaid, is the registrar of the port of registry, he ^f^^ ""^^ may, if he thinks fit, instead of registering such alteration, require such required, ship to be registered anew in manner hereinbefore directed on the first registry of a ship, and if he is not such registrar as lastly hereinbefore mentioned he may nevertheless require such ship to be registered anew, but he shall in such last-mentioned case grant a provisional certificate or make a provisional indorsement of the alteration made in manner hereinbefore directed in cases where no registry anew is required, taking care to add to such certificate or indorsement a statement that the same is made pro- visionally, and to insert in his report to the registrar of the port of registry of the ship a Uke statement. LXXXVI. Every such provisional certificate, or certificate provisionally Grant of provi- indorsed, shall, within ten days after the first subsequent arrival of the ship ?ional certiflcate at her port of discharge in the United Kingdom, if registered in the United iteration Kingdom, or if registered elsewhere, at her port of discharge, in the British possession within which her port of registry is situate, be delivered up to the registrar thereof, who shall thereupon cause such ship to be registered anew in the same manner in all respects as hereinbefore required on the first registry of any ship. LXXXVII. On failure of such registry anew of any ship or registry of Consequence of alteration of any ship so altered as aforesaid, such ship shall be deemed not omiraion to duly registered, and shall no longer be recognised as a British ship. register anew. LXXXVIII. If upon any change of ownership in any ship the owner or On change of owners desire to have such ship registered anew, although such registry owners, re^stry anew is not required by this Act, it shall be lawful for the registrar of the ^^tS")! port at which such ship is already registered, on the delivery up to him of required, the existing certificate of registry, and on the other requisites to registry, or such of them as the registi-ar thinks material, being duly complied with, to make such registry anew, and grant a certificate thereof. 842 17 & 18 Vict. CAP. 104. n. RegistryaneWf amd Transfer fif liegiatry. Efigistry may be traosferred from port to port. Marnier of trans- fer of registry. Transfer of r^istry not to affect rights of owners. Miscellaneous, Inspection of register books. Indemnity to registrar. Eetum tobe made by regis- trars to eommis- Bioners of customs. Application of fees. Commissioners of customs to provide, and ■with consent of Board of Trade may alter forms and issue instructions. LXXXIX. The registry of any ship may be transferred from one port to another upon the application of all parties appearing on the register to be interested in such ship, whether as owners or mortgagees, such application to be expressed by a declaration in writing made and subscribed, if the party so required to make and subscribe the same resides at or within five miles of the custom house of the port from which such ship is to be transferred, in the presence of the registrar of such port, but if beyond that distance in the presence of any registrar or of any justice of the peace. XC. Upon such appKoation being made as is hereinbefore mentioned, and upon the delivery to him of the certificate of registry, the registrar of the port at which such ship is already registered (a) shall transmit to the registrar of the port at which such ship is intended to be registered, notice of such application haidng been made to him, together with a true copy of all parti- culars relating to such ship, and the names of all the parties appearing by his book to be interested as owners or mortgagees in such ship ; and such last-mentioned registrar shall, upon the receipt of such notice, enter all such particulars and names in his book of registry, and grant a fresh certificate of registry, and thenceforth such ship shall be considered as registered at and belonging to such last-mentioned port, and the name of such last-mentioned port diaU be substituted on the stem of such ship in lieu of the name of the port previously appearing thereon. XCI. The transfer of the registry of any ship in manner aforesaid shall not in any way afEect the righte of the sevetal persons interested either as owners or mortgagees in such ship, but such rights shall in all respects be maintained and continue in the same manner as if no. such transfer had been effected. Eegistry Miscellaneous. sen. Every person may, upon payment of a fee to be fixed by the com- missioners of customs (b) not exceeding one shilling, have access to the register book for the purpose of inspection at any reasonable time during the hours of ofScial attendance of the registrar. XCIII. No registrar shall be liable to damages or otherwise for any loss accruing to any person by reason of any act done or default made by him in his character of registrar, unless the same has happened through his neglect or vrilful act. XCIV. Every registrar in the United Kingdom shall at the expiration of every month, and every other registrar shall without delay, or at such stated times as may be fixed'by the commissioners of customs, transmit to the custom house in London (c) a f uU return in such form as they may direct of all regis- tries, transfers, transmissions, mortgages and other dealings with ships wMoh have been registered by or communicated to them in their character of regis- trars, and the names of the persons who have been oouoemed in the same, and such other particulars as may be directed by the said commissioners. XCV. AU fees authorised to be taken under the Second Part of this Act shall, if taken in any part of the United Kingdom, be applied in payment of the general expenses of carrying into effect the purposes of such Second Part, or otherwise as the treasury may direct, but if taken elsewhere shall be dis- posed of in such way as the executive government of the British possession in which they are taken may direct. XCVI. The commissioners of customs shall cause the several forms [d) required or authorised to be used by the Second Part of this Act, and con- tained ia the Schedule hereto, to be supplied to all registrars within her Majesty's dominions for distribution to the several persons requiring to use the same, either free of charge, or at such moderate prices as they may from time to time direct, and the said commissioners, with the consent of the Board of Trade, may from time to time make such alterations in the forms contained in the Schedule hereto as it may deem requisite, but shall, before issuing any altered form, give such public notice thereof as may be necessary in order to prevent inconvenience ; and the said commissioners may also, with such consent as aforesaid, for the purposes of carrying into effect the (a) See IS & 19 Vict. u. 91, s. 112, infra, .(b) Eegistrar-aeneral of Seamen: 35 & 36 Vict. 0. 73, a. 4, infra. [c] See 35 & 36 Vict. o. 73, s. 4, infra. {d) 18 & 19 Vict. u. 91, s. 11, and 36 & 36 Vict. 0. 73, s. 4, infra. . Merchant Shipping Act. 843 provisions contained in tte Second Part of this Act, give suoli instructions as to the manner of maHng entries in the register book, as to the execution and attestation of powers of attorney, as to any evidence to he required for identifying any person, and generally as to any act or thing to be done in pursuance of the Second Part of this Act, as they may think fit. XCVII. Whenever in any case in which under the Second Part of this Act any person is required to make a declaration on behalf of himself or of any body corporate, or any evidence is required to be produced to the registrar, it is shown to the satisfaction of the registrar that from any reasonable cause such person is unable to make the declaration, or that such evidence cannot be produced, it shall be lawful for the registrar, with the sanction of the commissioners of customs, and upon the production of such otlier evidence, and subject to such terms as they may think fit, to dispense with any such declaration or evidence. XCVIII. In cases where it appears to the commissioners of customs, or to the governor or other person administering the government of any British possession, that by reason of special circumstances it would be desirable that permission should be granted to any British ship to pass, without being pre- viously registered, from one port or place in her Majesty's dominions to any other port or place within the same, it shall be lawful for such commissioners or governor or other person to grant a pass accordingly, and such pass shall for the time and within the limits therein mentioned have the same efleot as a certificate of registry. XCIX. If any person interested in any ship or any share therein, is by reason of infancy, lunacy or other inability, incapable of making any decla- ration or doing anything required or permitted by this Act to be made or done by such incapable person in respect of registry, then the guardian or committee, if any, of such incapable person, or, if there be none, any person appointed by any court or judge possessing jurisdiction in respect of the pro- perty of incapable persons, upon the petition of any person on behalf of such incapable person, or of any other person interested in the making such decla- ration or doing such thing, may make such declaration, or a declaration as nearly ooiTesponding thereto as oiroumstanoes permit, and do such thing in the name and on behalf of such incapable person ; and all acts done by such substitute shall be as effectual as if done by the person for whom he is sub- stituted. C. Whenever any person is beneficially interested, otherwise than by way of mortgage, in any ship or share therein registered in the name of some other person as owner, the person so interested shall, as well as the registered owner, be subject to all pecuniary penalties imposed by this or by any other Act on owners of ships or shares therein, so nevertheless that proceedings may be taken for the enforcement of any such pecuniary penalties against both or either of the aforesaid parties, with or without joining the other of them. Forgery. CI. Any person who forges, assists in forging, or procures to be forged, fraudulently alters, assists in fraudulently altering, or procures to be fraudu- lently altered, any register book, certificate of surveyor, certificate of registry, declaration of ownership, bill of sale, instrument of mortgage, certificate of mortgage or sale, or any entry or indorsement required by the Second Part of this Act to be made in or on any of the above documents, shall for every such offence be deemed to be guilty of felony. National Character. CXI. No officer of customs shall grant a clearance or transire for any ship until'tiie master of such ship has declared to such officer the name of the nation to which he claims that she belongs, and such officer shall thereupon inscribe such name on the clearance or transire ; and if any ship attempts to proceed to sea without such clearance or transire, any such officer may detain her until such declaration is made. GUI. The offences hereinafter mentioned shall be punishable as follows ; (that is to say,) (1). If any person uses the British flag and assumes the British national character on board any ship owned in whole or in part by any persons not entitled by law to own British ships, for the purpose of making such ship appear to be a British ship, such ship shall be for- n. JUiscellaneous. Power to regis- trar to dispense with declarations and other evidence. Power for com- missionera or governor in special eases to grant a pass to a ship not regis- tered. Provision for cases of infancy or other incapacity. liabilities of ownera. Forgery. Punishment for forgery. National Character. National character of ship to be declared before clearance. Penalties : For unduly aasmnmg a Britiah character. 844 17 & 18 Vict. CAP. 104. H. National ' Character, For concealment of Britisli or assumption of foreign character. Tor acquiring ownership if unqualified. For false decla- ration of OTvner- Bhip. Officer not liable for any seizure made on reason- able grounds. Penalty for carrying im- proper colours. feited to her Majesty, unless such assumption has teen made for the purpose of escaping capture by an enemy or by a foreign ship of war in exercise of some belligerent right ; and in any proceeding for enforcing any such forfeiture the burden of proving a title to use the British flag and assume the British national character shall lie upon the person using and assuming the same : (2). If the master or owner of any British ship does or permits to be done any matter or thing, or carries or permits to be carried any papers or documents, with intent to conceal the British character of such ship from any person entitled by British law to inquire into the same, or to assume a foreign character, or with intent to deceive any such person as lastly hereinbefore mentioned, such ship shall be forfeited to her Majesty ; and the master, if he commits or is privy to the commission of the offence, shall be guilty of a misde- meanor : (3). If any qualified person, except in the case of such transmitted inte- rests as are hereinbefore mentioned, acquires as owner any interest, either legal or beneficial, in a ship using a British flag, and assum- ing the British character, such interest shaU be forfeited to her Majesty : (i). If any person, on behaU of himself or any other person or body of persons, wilfully makes a false declaration touching the qualifica- tion of himself or such other person or body of persons to own British ships or any share therein, the declarant shall be guilty of a misdemeanor ; and the ship or share in respect of which such declaration is made, if the same has not been forfeited under the foregoing provision, shall, to the extent of the interest therein of the person making the declaration, and, unless it is shovm that he had no authority to make the same, of the parties on behaU of whom such declaration is made, be forfeited to her Majesty : And in order that the above provisions as to forfeitures may be carried into effect it shall be lawful for any commissioned officer on full pay in the mili- tary or naval service of her Majesty, or any British officer of customs, or any British consular officer, to seize and detain any ship which has, either wholly or as to any share therein, become subject to forfeiture as aforesaid, and to bring her for adjudication before the High Court of Admiralty in England or Ireland, or any court having Admiralty jurisdiction in her Majesty's dominions ; and such court may thereupon make such order in the case as it may think fit, and may award to the officer bringing in the same for adjudication such portion of the proceeds of the sale of any forfeited ship or share as it may think right. CIV. No such officer as aforesaid shall be responsible, either civilly or cri min ally, to any person whomsoever, in respect of the seizure or detention of any ship that has been seized or detained by him in pursuance of the provisions herein contained, notwithstanding that such ship is not brought in for adjudication, or, if so brought in, is declared not to be liable to for- feiture, if it is shown to the satisfaction of the judge, or court before whom any trial relating to such ship or such seizure or detention is held that there were reasonable grounds for such seizure or detention ; but if no such grounds are shown, such judge or court may award payment of costs and damages to any party aggrieved, and make such other order in the premises as it thinks just. CV. If any colours usually worn by her Majesty's ships, or any colours resembling those of her Majesty, or any distinctive national colours, except the red ensign usually worn by merchant ships (c), or except the union jack with a white border, or if the pendant usually carried by her Majesty's ships or any pendant in anywise resembling such pendant, are or is hoisted on boaid any ship or boat belonging to any subject of her Majesty without warrant for so doing from her Majesty or from ithe Admiralty, the master of such ship or boat, or the owner thereof, if on board the same, and every other person hoisting or joining or assisting in hoisting the same, shall for every such oSence incur a penalty not exceeding five hundred pounds {d ) ; and (c) See the Merchant Shipping (Colours) Act, 1889 (62 & 63 Vict, c. 73). {d) As to the recovery of the penalty, see 52 & 63 Vict. o. 73, s. 3. Merchant Shipping Act. 845 it shall be lawful for any ofBoer on full pay in the military or naval service n. National of her Majesty, or any British officer of the customs, or any British consular C harac ter. officer, to board any such ship or boat, and to take away any such jack, colours, or pendant ; and such jack, colours or pendant shall be forfeited to hor Majesty. CVI. Whenever it is declared by this Act that a ship belonging to any Effect of decla- person or body corporate qualified according to this Act to be owners of ration in the Act British ships shall not be recognized as a British ship, such ship shall not be n^he/^^i^d entitled to any benefits, privileges, advantages or protection usually enjoyed as a BritioEship. by British ships, and shall not be entitled to use the British flag, or assume the British national character ; but, so far as regards the payment of dues, the liability to pains and penalties, and the punishment of offences com- mitted on board such ship or by any persons belonging to her, such -ship shall be dealt with in the same manner in all respects as if she were a recognized British ship. Bvidmce. Emlmce, evil. Every register of or declaration made in pursuance of the Second Copies of regis- Part of this Act in respect of any British ship may be proved in any court of 'f™ md dedaro- justice, or before any person having by law or by consent of parties autho- admissible in rity to receive evidence, either by the production of the original or by an evidence, and to examined copy thereof, or by a. copy thereof purporting to be certified under be primil facie the hand of the registrar or other person having the charge of the original ; f^L''£{*'^'"'' which certified copies he is hereby required to furnish to any person applying at a reasonable time for the same, upon payment of one shilling for each such certified copy ; and every such register or copy of a register, and also every certificate of registry of any British ship, purporting to be signed by the registrar or other proper officer, shall be received in evidence in any court of justice or before any person having by law or by consent of parties authority to receive evidence as primS, facie proof of all the matters con- tained or recited in such register when the register or such copy is produced, and of aU the matters contained in or indorsed on such certificate of registry, and purporting to be authenticated by the signature of a registrar, when such certificate is produced. Saving Clause. Saving Clauie. CVIII. Nothing in this Act contained shall repeal or affect an Act passed saTingoTs & 4 in the session of Parliament holden in the third and fourth years of the reign vict. o. 66, of her present Majesty, chapter fifty-six, intituled "An Act further to- "latingtoEast regulate the Trade of Ships built and trading within the Limits of the East -tndian snips. India Company's Charter." PART III. Masiebs and Seamen (/). Applioation. Application. CIX. The various provisions of the Third Part of this Act shall have the Application of following applications, unless the context or subject-matter requires a diSe- Partm. of Act. rent applioation ; (that is to say,) So much of the Third Part of this Act as relates to the delivery or trans- ^tams for mission of lists of crews to the registrar- general of seamen shall apply Mon^jjig ^ the to all fishing vessels belonging to the United Kingdom, whether em- united ployed exclusively on the coasts of the United Kingdom or not ; to all Kingdom, ships belonging to the Triuity House, or the commissioners of northern lighthouses, constituted, as hereinafter mentioned, or the port of DubHu corporation, and to all pleasure yachts, and to the owners, masters and crews of such ships (/). ,.,,,■,■,. ,i t, ^ So much of the Third Part of this Act as relates to the dehvery and trans- Eetam^ and mission of lists of crews, and to the wages and effects of deceased ^^^"'.^en seamen and apprentices, shall apply to all-seagomg British ships, in certain e colonial ships. («) See S3. 9 and 15 of 18 & 19 (/) See 25 & 26 Vict. c. 63, s. 13, Vict. 0. 91, infra. »»/'■«■ 846 17&18.VICT.CAP. 104. 1 1 1. Application. Shipping and discbsLr^Qg men in the United Kingdom. Volunteering into the navy. Provisions ap- plicable to colonial ships. As to -whole of Part nr. of Act. wherever registered, of wliioli the crews are discharged, or whose final port of destination is in the United Kingdom, and to the owners, masters and crews of such ships : So much of the Third Part of this Act as relates to the shipping and dis- charge of seamen in the United Kingdom, shall apply to all sea-going British ships, wherever registered, and to the owners, masters and crews of such ships : So much of the Third Part of this Act as relates to seamen volunteering into the royal navy shall apply to all sea-going British ships wherever registered, and to the owners, masters and crews of such ships, where- ever the same may he : So much of the Third Part of this Act as relates to rights to wages and remedies for the recovery thereof ; to the shipping and discharge of seamen in foreign ports ; to leaving seamen abroad, and to the relief of seamen in distress in foreign ports ; to the provisions, health and ac- commodation of seamen ; to the power of seamen to make complaints ; to the protection of seamen from imposition ; to discipline ; to naval courts on the high seas and abroad ; and to crimes committed abroad ; shall apply to all ships registered in any of her Majesty's dominions abroad, when such ships are out of the jurisdiction of their respective governments, and to the owners, masters and crews of such ships : And the whole of the Third Part of this Act shall apply to all sea- going ships registered in the United Kingdom (except such as are exclusively employed in fishing on the coasts of the United Kingdom, and such as belong to the Trinity House, the commissioners of northern lighthouses, or the port of Dublin corporation, and also except pleasure yachts), and also to all ships registered in any British possession and employed in trading or going between any place in the United Kingdom and any place or places not situate in the possession in which such ships are regis- tered, and to the ovraers, masters and crews of such ships respectively, wherever the same may be {g) . Local Marine Boards. Constitution of local marine hoards. Qualification of voters for Local Marine Boards. ex. There shall be local marine boards for carrying into effect the provi- sions of this Act under the superintendence of the board of trade at those seaports of the United Kingdom at which local marine boards have heretofore been established, and at such other places as the board of trade appoiuts for this purpose ; and each of such local marine boards shall be constituted as follows : (that is to say,) the mayor or provost and the stipendiary magistrate or such of the mayors or provosts and stipendiary magistrates of the place (if more than one) as the board of trade appoints ^all be a member or mem- bers ex officio ; the board of trade shall appoint four members from persons residing or having places of business at the port or within seven miles thereof ; and the owners of foreign-going ships and of home-trade passenger ships registered at the port shall elect six members ; and such elections as afore- said shall take place on the twenty-fifth day of January, one thousand eight hundred and fifty-seven, and on the twenty-fifth day of January in every third succeeding year, and such appointments as aforesaid shall take place within one month after such elections ; and upon the conclusion of such month and the constitution of a new board the functions of the then existing board shall cease, and the board consisting of the members then newly elected and appointed shall take its place ; and any occasional vacancy caused in the intervals between the general elections and appointments, by death, resig- nation, disqualification, or otherwise, shall be filled up within one month after it occurs ; and every person elected or appointed on an occasional vacancy shall continue a member untU the next constitution of a new board ; and the mayor or provost shall fix the place and mode of conducting all such elections as aforesaid, and also on occasional vacancies the day of election, and shall give at least ten days' notice thereof ; and the board of trade shall have power to decide any. questions raised concerning any such elections. CXI. Owners of foreign-going ships and of home-trade passenger ships registered at any seaport of which there is a local marine board shall have [g] See 25 & 26 Vict. c. 63, s. 13, infra. Merchant Shipping Act. 847 votes at the olootion of members of such board as follows : (that ia to say,) ni. Local every registered owner of not less than two hundred and fifty tons in the HanneBoarda. whole of such shipping' shall at every election have one vote for each member members of for every two hundred and fifty tons owned by him, so that his votes for any local marine one member do not exceed ten : And for the purpose of ascertaining the toarda. qualification of such electors the following rules shaU be observed ; (that is to say,) in the case of a ship registered in the name of one person, such person shall bo deemed to be the owner, and in the case of a ship registered in dis- tinct and several shares in the names of more persons than one, the tonnage shall be apportioned among the owners as nearly as may be in proportion to their respective shares, and each of such persons shall be deemed to be the owner of the tonnage so apportioned to him ; and in the case of a ship or shares of a ship registered jointly without severance of interest in the names of more persons than one, the tonnage shall, if it ia sufficient, either alone or together with other tonnage (if any) owned by such joint owners, to give a quaUfloation to each of them, be apportioned equally between the joint owners, and each of auoh joint owners shall be deemed to be the owner of the equal share so apportioned to him, but if it is not so sufflcieat, the whole of such tonnage shall be deemed to be owned by such one of the joint owners resident or havinga place of businesa at the port or within seven miles thereof as is first named on the register ; and in msiking any such apportionment as aforesaid any portion may be struck off so as to obtain a divisible amount ; and the whole amount of tonnage so owned by each person, whether in ships or shares of or interests in ships, shall be added together, and, if sufficient, shall constitute his qualification. CXII. The collector or comptroller of customs in every seaport of the Lists of such United Kingdom at which there is a local marine board, shall, with the voters to be assistance of the registrar-general of seamen, on or befofe the twenty-fifth "^l^- day of December in the year one thousand eight hundred and fifty-six, and in every third succeeding year, make out an alphabetical list of the persona eatitled by virtue of this Act to vote at the election of members of such local marine board, containing the Christian name, surname and residence of each such person, and the number of votes to which he is entitled, and shall sign such list, and cause a sufficient number of copies thereof to be printed, and to be fixed on or near the doora of the custom-house of such seaport for two entire weeks next after such list haa been made, and shall keep true copies of such list, and permit the same to be perused by any person, without payment of any fee, at all reasonable hours during such two weeks. CXIII. The mayor or provost of every seaport at which there is a local Eevision of list marine board, or such of them, if more than one, as ia or are for the time °' voters, being so appointed as aforesaid, shall at least twenty days before the twenty- fifth day of January in the year one thousand eight hundred and iifty- seven, and in each auoceeding third year, nominate two justices of the peace to revise the said Hats ; and such juatioea ahaU, between the eighth and fifteenth daya of January both inclusive in the year in which they are so nominated, revise the aaid list at the ouatom-house of the port, or in some convenient place near thereto, to be hired, if necessary, by the said collector or comp- troller, and shall give three clear days' notice of such revision by advertising the aame in some local newspaper, and by affixing a notice thereof on or near to the doora of such oustom-houae, and shall make such revision by inaerting in auch list the name of every person who claims to be inserted therein and gives proof satisfactory to the said revisers of his right to have his name so inserted, and by striking out therefrom the name of every person to the insertion of which an objection ia made by any other peraon named in such list who gives proof satisfactory to the said revisers that the name of the person ao objected to ought not to have been inserted therein ; and the deci- sion of the said reviaora with respect to every such claim or objection ahall be conoluaive ; and the said revisors shall immediately after such revision ^ign their namea at the foot of the list ao revised ; and such list so revised shall be the register of voters at elections of members of the local marine board of such seaport for three years from the twenty-fifth day of January then next ensuing inclusive to the twenty-fourth day of January inclusive in the third succeeding year ; and the said revised list, when so signed, ahall be delivered to such mayor or provost as aforesaid of the place, who shall, if necessary, cause a sufficient number of copies thereof to be printed", and shall oauae a copy to be delivered to every voter applying for the same. 848 17 & 18 Vict. gap. 104. m. Local Marine Boards. Eegisters to be produced. Expenses to be paid by board of trade. Persons on revised list qualified to vote. Qualification of members of local marine boards. Error in elec- tions not to vitiate acts done. Hinutes and business of local marine boards. If any local marine board fails to discharge its duties, board of trade may assume its duties, or direct a new election. Board of trade, on complaint, may alter arrang-ements made by local marine boards. Shipping OJJices. Local marine boards to esta- blish shipping CXIV. The said collector, or comptroller, if required, shall for the assist, ance of the said revisors in revising the said Bst produce to them the books containing the register of ships registered at such seaport ; and the registrar- general of seamen, if required, shaJl also produce or transmit to such revisors such certified extracts or returns from the toots in his custody as may be necessary for the same purpose. CXV. The t-wo justices aforesaid shall certify all expenses properly incurred by any such collector or comptroller as aforesaid in maldng and printing the said list and in the revision thereof, and the board of trade shall pay the same, and also all expenses properly incurred by any such mayor or provost as afore- said in printing the same or in elections taking place under this Act; and the said board may disallow any items of any sucn expenses as aforesaid which it deems to have been improperly incurred. CXVI. Every person whose name appears on such revised list, and no other person, 'shall be qualified to vote at the election of members of the local marine board at such seaport to be held on the twenty-fifth day of January next after the revision of such list, and at any occasional election held at any time between that day and the next ordinary triennial election of the members of such board. CXVII. Every male person who is according to such revised list of the voters at any seaport entitled to a vote, shall be qualified to be elected a member of the local marine board of such seaport, and no other person shall be. so qualified ; and if any person elected as a member after such election ceases to be an owner of such quantity of tonnage as would entitle him to a vote, he shall no longer continue to act or be considered as a member, and thereupon another member shall be elected in his place. CXVIII. No act of any local marine board shall be vitiated or prejudiced by reason of any irregularity in the election of any of its members, or of any error in the list of voters herein mentioned, or of any irregularity iu the maJdng or revising of such list, or by reason of any person who is not duly qualified as hereinbefore directed acting upon such board. OXIX. Every local marine board shall keep minutes of its proceedings, and the same shall be kept in such mode (if any) as the board of trade prescribes ; and such minutes, and all books or documents used or kept by any local marine board, or by any examiners, shipping masters, or other officers or servants under the control of any local marine board, shall be open to the inspection of the board of trade and its officers ; and every local marine board shall make and send to the board of trade such reports and returns as it requires ; but, subject as aforesaid, every local marine board may regulate the mode in which its meetings are to be held and its business conducted (A). CXX. If any local marine board, by reason of any election not taking place, or of the simultaneous resignation or continued non-attendanoe of all or the greater part of the members, or from any other cause, fails to meet or to discharge its duties, the board of trade may, iu its discretion, either take into its own hands the performance of the duties of such local marine board untU the next triennial appointment and election thereof, or direct that a new appointment and election of such local marine board shall take place immediately. CXXI. If upon complaint made to the board of trade, it appears to such board that any appointments or arrangements made by any local marine board under the powers hereby given to it are not such as to meet the wants of the port, or are in any respect unsatisfactory or improper, the board of trade may annul, alter, or rectify such appointments or arrangements in such manner as, having regard to the intentions of this Act and to the wants of the port, it deems to be expedient. Shipping Offwes [%). CXXII. In every seaport in the United Kingdom in which there isa local marine board such board shall establish a shipping office or shipping offices, and may for that purpose, subject as herein mentioned, procure the requisite premises, and appoint and from time to time remove and re-appoint (h) See 25 & 26 Vict. c. I infra. s. 14, (i) Now termed mercantile marine offioes : 25 & 26 Vict. o. 63, s. 16, ir^ra. Merchant Shippikg Act. 849 superintendents of Buoh ofSces, to be called shipping masters, with any m. Shipping necessary deputies, clerks, and servants, and regulate the mode of conducting Offices. business at such offices, and shall, subject as herein mentioned, have com- plete control over the same ; and every act done by or before any deputy duly appointed shall have the same effect as if done by or before a shipping- master (A). CXXIII. The sanction of the board of trade shall be necessary so far as Board of trade regards the number of persons so appointed by any such local marine board, *° '"'™ partial and the amount of their salaries and wages and aU other expenses ; and the eMpntaa offices board of trade shall have the immediate control of such shipping offices, so far as regards the receipt and payment of money thereat ; and all shipping masters, deputies, clerks, and servants so appointed as aforesaid shall before entering upon their duties give such sectirity (if any) for the due performance thereof as the board of trade requires ; and if in any case the board of trade has reason to believe that any shipping master, deputy clerk or servant appointed by any local marine board does not properly discharge his duties, the board of trade may cause the case to be invested, and may, if it thinks fit so to do, remove him from his office, and may provide for the proper performance of his duties until another person is properly appointed in his place. CXXTV. It shall be the general business of shipping masters appointed as Business of such aforesaid— <>^<^^ generaUy. To afford facilities for engaging seamen by keeping registries of their names and characters ; To superintend and facilitate their engagement and discharge in manner hereinafter mentioned ; To provide means for securing the presence on board at the proper times of men who are so engaged ; To facilitate the making apprenticeships to the sea service ; To perform such other duties relating to merchant seamen and merchant ships as are hereby or may hereafter under the powers herein con- tained be committed to them. CXXV. Such fees, not exceeding the sums specified in the table marked (P) Fees to be paid in the Schedule hereto, as are from time to time fixed by the board of trade, "P™ engage- shall be payable upon all engagements and discharges effected before shipping dJIS^rM^ masters as hereinafter mentioned, and the board of trade shall cause scales of the fees payable for the time being to be prepared and to be conspicuously placed in the shipping offices ; and all shipping masters, their deputies, clerks and servants, may refuse to proceed yniii. any engagement or discharge unless the fees payable thereon are first paid. CXXVI. Every owner or master of a ship engaging or discharging any Masters to pay seamen or seaman in a shipping office or before a shipping master shall pay 'ees. and to to the shipping master the whole of the fees hereby made payable in respect fL^™'!""^'™"" of such engagement or discharge, and may, for the purpose of in part reimburs- ing himself, deduct in respect of each such engagement or discharge from the wages of all persons (except apprentices) so engaged or discharged, and retain any sums not exceeding the sum specified in that behalf in the table marked (Q) in the Schedule hereto : Provided that, if in any oases the sums Proviso as to which the owner is so entitled to deduct exceed the amount of the fee payable excess. by.him, such excess shall be paid by him to the shipping master in addition to such fee. CXXVII. Any shipping master, deputy shipping master, or any clerk or Penalty on servant in any diipping office, who demands or receives any remuneration shipping masters whatever, either dUreotly or indirectly, for hiring or supplying any seaman i^u^fa'tion'^ "^^ for any merchant ship, excepting the lawful fees payable under this Act, shall for every such offence incur a penalty not exceeding twenty pounds, and shall also be liable to be dismissed from his office by the board of trade. CXXVIII. The board of trade may, with the consent of the commissioners Business of of customs, direct that at any place in which no separate shipping office is shipping offices established the whole or any part of the business of the shipping office shall ^ted'at'cSm be conducted at the custom house, and thereupon the same shall be there houses, conducted accordingly ; and in respect of such business such custom house shall for all purposes be deemed to be a shipping office, and the officer of (A) See 25 & 26 Vict. o. 63, s. 16, mfm. 850 17 & 18 Vict. cap. 104.' " .1 ir . Skipping Offices. la London Bailors* homes may be shipping ofiices. Dispensation ■with shipping master's super- intendence. Certificates of Masters and Mates, Examinations to be instituted for masters and mates (0- Powers of board of trade over examinations. Fees to be paid by applicants for examination. Certificates of competency to be granted to tjiose who pass. Certificates of service to be delivered to persons who served as masters or mates before 1861, and to certain naval ofiicers; and customs there to wlioin suoli business is committed shall for aU purposes be deemed to be a shipping master within the meaning of this Act. CXXI5. The board of trade may appoint any superintendent of or other person connected with any sailors' home in the port of London to be a shipping master, with any necessary deputies, clerks and servants, and may appoint any office in any such home to be a shipping office ; and all shipping masters and shipping offices so appointed shall be subject to the immediate control of the board of trade and not of the local marine board of the port. CXXX. The board of trade may from time to time dispense with the transaction before a shipping master or in a shipping office of any matters required by this Act to be so transacted ; and thereupon such matters shall, if otherwise duly transacted as required by law, be as valid as if transacted before a shipping master or in a shipping office. Examinations and Certificates of Masters and Mates. CXXXI. Examinations shall be instituted for persons who intend to become masters or mates of foreign-going ships, or of home-trade passenger ships, or who wish to procure certificates of competency hereinafter men- tioned {I) ; and, subject as herein mentioned, the local marine boards shall provide for the examinations at their respective ports, and may appoint and from time to time remove and re-appoint examiners to conduct the same, and may regulate the same ; and any members of the local marine board of the place where the examination is held may be present and assist at any such examination. CXXXII. The board of trade may from time to time lay down rules as to the conduct of such examinations and as to the qualifications of the appK- cants, and such rules shall be strictly adhered to by aU examiners ; and no examiner shall be appointed unless he possesses a certificate of qualification, to be from time to time granted or renewed by the board of trade ; and the sanction of the board of trade shall be necessary, so far as regards the number of examiners to be appointed and the amount of their remuneration ; and the board of trade may at any time depute any of its officers to be present and assist at any examination ; and if it appears to the board of trade that the examinations for any two or more ports can be conducted without incon- venience by the same examiners, it may require and authorize the local marine boards of such ports to act together as one board in providing for and regulating examinations and appointing and removing examiners for such ports. CXXSIII. AU applicants for examination shall pay such fees, not ex- ceeding the sums specified in the table marked (R) in the Schedule hereto, as the board of trade directs ; and such fees shall be paid to such persons as the said board appoints for that purpose. CXXXIV. Subject to the proviso hereinafter contained, the board of trade shall deliver to every applicant who is duly reported by the local examiners to have passed the examination satisfactorily, and to have given satisfactory evidence of his sobriety, experience, ability and general good conduct on board ship, a certificate (hereinafter called a " certificate of com- petency ") to the effect that he is competent to act as master, or as first, second or only mate of a foreign-going ship, or as master or mate of a home- trade passenger ship, as the case may be : Provided that in every case in which the board of trade has reason to believe such report to have been unduly made, such board may remit the case either to the same or to any other examiners, and may require a re- examination of the applicant, or a further inquiry into his testimonials and character, before granting him a certificate. CXXXV. Certificates of service, diflEering in form from certificates of competency, shall be granted as follows ; (that is to say), (1). Every person who before the first day of January, one thousand eight hundred and fifty-one, served as master in the British merchant service, or who has attained or attains the rank of heu- tenant, master, passed mate or second master, or any higher rank in the service of Her Majesty or of the East India Company, shall {!) As to certificates of engineers, which are required in certain cases, see 25 & 26 Vict. c. 63-, s. 5 et seq., infra. Merchant Shipping Act. 851 te entitled to a certificate of service as master for foreign-going III. Oeniflmtea ships: of Masters aitd (2). Every person who before the first day of January, one thousand •'fr- eight hundred and fifty-one, served as mate in the British mer- certificates of chant service, shall be entitled to a certificate of service as mate for service for home- foreign-going ships : imAe passenger (3). Every person who before the first day of January, one thousand a^T^to eight hundred and fifty-four, has served as master of a home-trade persons who passenger ship, shall be entitled to a certificate of service as master ^™ served as for home-trade passenger ships : S^SSTsM™''*^ (4). Every person who before the first day of January, one thousand Sforelst ^^ eight hundred and fifty-four, has served as mate of a home-trade January, 1854. passenger ship, shall be entitled to a certificate of service as mate for home-trade passenger ships : And each of such certificates of service shall contain particulars of the name, place, and time of birth, and of the length and nature of the previous service of the person to whom the same is delivered ; and the board of trade shall deliver such certificates of service to the various persons so respectively entitled thereto, upon their proving themselves to have attained such rank or to have served as aforesaid, and upon their giving a full and satisfactory account of the particulars aforesaid. CXXXVI. No foreign-going ship or home-trade passenger ship shaU go Noforeign- to sea from any port in the United Kingdom unless the master thereof, and going ship or in the case of a foreign-going ship the first and second mates or only mate Some-trade (as the case may he), and in the case of a home-trade passenger ship the to^rmSed t^sea first or only mate (as the case may be), have obtained and possess valid wittiout oertifl- certificates either of competency or service appropriate to their several catesofthe stations in such ship, or of a higher grade; and no such ship, if of one master and hundred tons burden or upwards, shall go to sea as aforesaid, unless at '°*'^*' least one officer besides the master has obtained and possesses a valid certi- ficate appropriate to the grade of only mate therein or to a higher grade ; and every person who, having been engaged to serve as master or as first or second or only mate of any foreign-going ship, or as master or first or only mate of a home-trade passenger ship, goes to sea as aforesaid as such master or mate without being at the time entitled to and possessed of such a certificate as hereinbefore required, or who employs any person as master or first, second or only mate of any foreign-going ship, or as master or first or only mate of a home-trade passenger ship, without ascertaining that he is at the time entitled to and possessed of such certificate, shall for each such offence incur a penalty not exceeding fifty pounds. CXXSVII. Every certificate of competency for a foreign-going ship shall Certificates for be deemed to be of a higher grade than the corresponding certificate for a foreign-going home-trade passenger ship, and shall entitle the lawful holder thereof to go fOThomeSSe to sea in the corresponding grade in such last-mentioned ship ; but no passenger ships, certificate for a home-trade passenger ship shall entitle the holder to go to sea as master or mate of a foreign-going ship. CXXXVIII. All certificates, whether of competency or service, shall be The registrar to made in duplicate, and one part shall be delivered to the person entitled to record ^nts, the certificate, and the other shall be kept and recorded by the registrar- & ""^ofrarSfl- general of seamen or by such other person as the board of trade appoints for cates. that purpose ; and the board of trade shall give to such registrar or such other person immediate notice of all orders made by it for cancelling, sus- pending, altering, or otherwise affecting any certificate in pursuance of the powers herein contained ; and the registrar or such other person as afore- said shall thereupon make a corresponding entry in the record of certificates ; and a copy purporting to he certified by such registrar or his assistant or by Duplicates and such person as aforesaid of any certificate shall be prim^ facie evidence of entries to be such certificate, and a copy purporting to be so certified as aforesaid of any evidence, entry made as aforesaid in respect of any certificate shaU be prim& facie evidence of the truth of the matters stated in such entry. CXXXIX. Whenever any master or mate proves to the satisfaction of In case of loss a the board of trade that he has, without fault on his part, lost or been copy to be deprived of any certificate already granted to him, the board of trade shall, 8r™ntea. upon payment of such fee (if any) as it directs, cause a copy of the certificate to which by the record so kept as aforesaid he appears to be entitled, to be made out and certified as aforesaid, and to be delivered to him ; and any VOL. II. — S. 3 L 852 17 & 18 Vict. cap. 104. m. Certificates o/Maaters and Mates. Penalties for false representa^ tions for forging or altering or fraudulently using or lending any certiiicate. copy which purports to be so made and certified as aforesaid shall have all the effect of the original. CXL. Eyery person who makes, or procures to be made, or assists in making any false representation for the purpose of obtaining for himself or for any other person a certificate either of competency or service, or who forges, assists in forging, or procures to be forged, or fraudulently alters, assists in fraudulently altering, or procures to be fra,udulently altered,. any such certificate or any official copy of any such certificate, or who fraudu- lently makes use of any such certificate or any copy of any such certificate which is forged, altered, cancelled, suspended, or to which he is not justly entitled, or who fraudulently lends his certificate to or allows the same to be used by any other person, shall for each offence be deemed guilty of a mis- demeanor. Apprenticeships to Sea Service. Shipping- mafiters to assist in binding apprentices, and may receive fees. Indentures of boys bound apprentices to sea service by guardians or overseers to be witnessed by two justices. Indentures of apprenticeship to be exempt from stamp duty and to be recorded. Rules to govern apprenticeship of paupers in Great Britain and Ireland respectively. Apprenticeships to the Sea Service. CXLI. All shipping masters appointed under this Act shall, if applied to for the purpose, give to any board of guardians, overseers, or other persons desirous of apprenticing boys to the sea service, and to masters and owners of ships requiring apprentices, such assistance as is in their power for facili- tating the making of such apprenticeships, and may receive from persons availing themselves of such assistance suc^ fees as may be determined in that behalf by the board of trade, vrith the concurrence, so far as relates to pauper apprentices in England, of the poor law board in England, and so far as relates to pauper apprentices in Ireland, of the poor law commissioners in Ireland. CXLII. In the ease of every boy bound apprentice to the sea service by any guardians or overseers of the poor, or other persons having the autho- rity of guardians of the poor, the indentures shall be executed by the boy and the person to whom he is bound in the presence of and shall be attested by two justices of the peace, who shall ascertain that the boy has consented to be bound, and has attained the age of twelve years, and is of sufficient health and strength, and that the master to whom the boy is to be bound is a proper person for the purpose. CXLIII. All indentures of apprenticeship to the sea service shall be exempt from stamp duty ; and all such indentures shall be in duplicate : and every person to whom any boy whatever is bound as an apprentice to the sea service in the United Kingdom shall within seven days after the execution of the indentures take or transmit the same to the registrar-general of seamen or to some shipping master; and the said registrar or shipping master shall retain and record one copy, and shall indorse on the other that the same has been recorded, and shall re-deliver the same to the master of the apprentice ; and whenever any such indenture is assigned or cancelled, and whenever-any such apprentice dies or deserts, the master of the appren- tice shall, within seven days after such assignment, cancellation, death, or desertion, if the same happens within the United Kingdom, or if the same happens elsewhere, so soon afterwards as circumstances permit, notify the same either to the said registrar of seamen, or to some shipping master, to be recorded ; and every person who fails to comply with the provisions of this section shall incur a penalty not exceeding ten pounds. CXLIV. Subject to the provisions hereinbefore contained, all apprentice- ships to the sea service made by any guardians or overseers of the poor, or persons having the authority of guardians of the poor, shall, it made in Great Britain, be made in the same manner and be subject to the same laws and regulations as other apprenticeships made by the same persons, and if made in Ireland shall be subject to the following rules ; (that is to say,) (1). In every xinion the guardians of the poor, or other persons duly appointed to carry into execution the Acts for the relief of the destitute poor and having the authority of guardians of the poor, may put out and bind as an apprentice to the sea service any boy who or whose parent or parents is or are receiving relief in such union, and who has attained the age of twelve years, and is of suffi- cient health and strength, and who consents to be so bound : (2). If the cost of relieving any such boy is chargeable to an electoral divi- sion of a union, then (except in oases in which paid officers act in Merchant Shipping Act. 8,53 place of guardians) he shall not be hound as aforesaid unless the HI. Apprentice- oonsent in writing of the guardians of such electoral division or of ''*'2" *? ^"^ a majority of the guardians (if more than one) he first obtained, S ervice . such consent to be, when possible, indorsed upon the indentures : (3). The expense incurred in the binding and outfit of any such apprentice shall be charged to the union or electoral division (as the case may be) to which the boy or his parent or parents is or are chargeable at the time of his being apprenticed : (4). All indentures made in any union may be sued upon by the guardians of the union or persons having the authority of guardians therein for the time being, by their name of office, and actions brought by them ujpon such indentures shall not abate by reason of death or change in the persons holding the office ; but no such action shall be commenced without the consent of the Irish poor law commis- sioners : (5). The amount of the costs incurred in any such action and not recovered from the defendant therein, may be charged upon the union or electoral division (as the case may be) to which the boy or his parent or parents was or were chargeable at the time of his being appren- ticed. ' CXLV. The master of every foreign-going ship shall, before carrying any Apprentices and apprentice to sea from any place in the United Kingdom, cause such appren- their indentures tice to appear before the shipping master before whom the crew is engaged, ^ J^ ^™?g''.^ and shall produce to him the indenture by which such apprentice is bound, n^"r befOT™^ and the assignment or assignments thereof (if any) ; and the name of such each voyage, in apprentice, with the date of the indenture and of the assignment or assign- a foreign-going ments thereof (if any), and the name of the port or ports at which the same P" have been registered, shall be entered on the agreement ; and for any default in obeying the provisions of this section the master shall for each ofience incur a penalty not exceeding five pounds. Engagement of Seamen. Engagement of Seamen. CXLVI. The board of trade may grant to such persons as it thinks fit ^ - T77 „ »„ ,. . ■, •^ ° !_' £ T-ii-.'^i Jioara 01 trade licences to engage or supply seamen or apprentices lor merchant ships m the may license United Kingdom, to continue for such periods, to be upon such terms, and persons to pro- to be revocable upon such conditions, as such board thinks proper. <'™8 seamen. CXLVII. The following offences shall be punishable as hereinafter men- tioned ; (that is to say,) (I). If any person not Uceneed as aforesaid, other than the owner or master Penalties : or a mate of the ship, or some person who is bonS, fide the servant and in the constant employ of the owner, or a shipping master duly appointed as aforesaid, engages or supplies any seaman or appren- for supplying tice to he entered on board any ship in the United Kingdom, he seamen without shall for each seaman or apprentice so engaged or supplied incur a '"^^i^^ i penalty not exceeding twenty pounds : (2). If any person employs any unlicensed person other than persons so for employing excepted as aforesaid, for the purpose of engaging or supplying any unlicensed seaman or apprentice to be entered on board any ship in the United P^"^""* > Kingdom, he shall for each seaman or apprentice so engaged or supplied incur a penalty not exceeding twenty pounds, and if licensed shall in addition forfeit his licence : (3). If any person knowingly receives or accepts to be entered on board for receiving any ship any seaman or apprentice who has been engaged or seamen illegally supplied contrary to the provisions of this Act, he shall for every ^^^ ^ ■ seaman or apprentice so engaged or supplied incur a penalty not exceeding twenty pounds. OXLVIII. If any person demands or receives either directly or indirectly, Penalty for from any seaman or apprentice, or from any person seeking employment as nCTaK^from"" a seaman or apprentice, or from any person on his behalf, any remuneration seamen for whatever, other than the fees hereby authorised, for providing him with shipping them, employment, he shall for every such offence incur a penalty not exceeding five pounds. 3l2 854 17 & 18 YicT. CAP. 104. Hi. Engagement of Seamen. Agreements to be made with seamen, con- taining certain particulars. Proviso as to forms for colonial shi|>8. Por foreign- going ships such affri "wnen made'in the TT. E., except in special casesj to be made before and attested by a shipping' master; to be in dupli- cate; provision for substitutes. Poreign-going ships making short voyages CXLIX. The master of every ship, except sMps of less than eighty tons registered tonnage exclusively employed in trading between different ports on the coasts of the United Kingdom, shall enter into an agreement with every seaman whom he carries to sea from any port in the United Kingdom, as one of his crew in the manner hereinafter mentioned ; and every such agree- ment shall be in a form sanctioned by the board of trade, and shall be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same, and shall contain the following particulars as terms thereof : (that is to say,) (1). The nature and, as far as practicable, the duration of the intended voyage or engagement (m) : (2). The number and description of the crew, specifying how many are engaged as sailors : (3). The time at which each seaman is to be on board or to begin work : (4). The capacity in which each seaman is to serve ; (6). The amount of wages which each seaman is to receive : (6) . A scale of the provisions which are to be furnished to each seaman : (7). Any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishments for mis- conduct, which have been sanctioned by the board of trade as regulations proper to be adopted, and which the parties agree to adopt: And every such agreement shall be so framed as to admit of stipulations to be adopted at the will of the master and seaman in each case, as to advance and allotment of wages («) , and may contain any other stipulations which are not contrary to law : Provided, that if the master of any ship belonging to any British possession has an agreement with his crew made in due form according to the law of the possession to which such ship belongs, or in which her crew were engaged, and engages single seamen in the United Kingdom, such seamen may sign the agreement so made, and it shall not be necessary for them to sign an agreement in the form sanctioned by the board of trade. CL. In the case of all .foreign-going ships, in whatever part of her Majesty's dominions the same are registered, the following rules shall be observed with respect to agreements ; (that is to say,) (1). Every agreement made in the United Kingdom (except in such cases of agreements with substitutes as are hereinafter specially provided for) shall be signed by each seaman in the presence of a shipping master : (2). Such shipping master shall cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each seaman imderstands the same before he signs it, and shall attest each signature : (3). When the crew is first engaged the agreement shall be signed in duplicate, and one part shall be retained by the shipping master, and the other part shall contain a special place or form for the descriptions and signatures of substitutes or persons engaged sub- sequently to the iirst departure of the ship, and shall be delivered to the master : (4). In the case of substitutes engaged in the place of seamen who have duly signed the agreement, and whose services are lost within twenty-four hours of the ship's putting to sea by death, desertion, or other unforeseen cause, the engagement shall, when practicable, be made before some shipping master duly appointed in the manner hereinbefore specified ; and whenever such last-mentioned engage- ment cannot be so made, the master shall, before the ship puts to sea, if practicable, and if not, as soon afterwaj^ as possible, cause the agreement to be read over and explained to the seamen ; and the seamen shall thereupon sign the same in the presence of a witness, who shall attest their signatures. CIA. In the case of foreign-going ships making voyages averaging less than six months in duration, running agreements with the crew may be made to extend over two or more voyages, so that no such agreement ifli) See 36 & 37 Vict. o. 85, s. 7, infra, as to agreements with fisherineu. (m) See 52 & 53 Vict. o. 46, s. 2. Merchant Shipfixg Act. 855 shall extend beyond the next following thirtieth day of June or thirty- HI. Engagement first day of December or the first arrival of the ship at her port of destina- o/ Seamen. tion in the United Kingdom after such date, or the discharge of cargo may have consequent upon such arrival ; and every person entering into such running agree- agreement, whether engaged upon the first commencement thereof or other- ments. wise, shall enter into and sign the same in the manner hereby required for other foreign-going ships ; and every person engaged thereunder, if dis- charged in the United Kingdom, shall he discharged in the manner hereby required for the discharge of seamen belonging to other foreign- going ships. CLII. The master of every foreign-going ship for which such a running Engagement and agreement as aforesaid is made shall, upon every return to any port in the ^'^'""'^■^ ^t United Kingdom before the final termination of the agreement, discharge or memteM. * engage before the shipping master at such port any seaman whom he is required by law so to discharge or engage, and shall upon every such return indorse on the agreement a statement (as the case may be) either that no such discharges or engagements have been made or are intended to be made before the ship again leaves port, or that all such discharges or engagements have been duly made as hereinbefore required, and shall deliver the agree- ment so indorsed to the shipping master ; and any master who wilfully makes a false statement in such indorsement shall incur a penalty not exceeding twenty pounds ; and the shipping master shall also sign an indorsement on the agreement to the effect that the provisions of this Act relating to such agreement have been complied with, and shall re-deMver the agreement so indorsed to the master. CLIII. In cases in which such running agreements are made, the dupli- Duplicates of cate agreement retained by the shipping master upon the first engagement running agree- of the crew shall either be transmitted to the registrar-general of seamen te^Mitwrth" immediately, or be kept by the shipping master until the expiration of the agreement, as the board of trade directs. CLIV. For the purpose of determining the fees to be paid upon the Fees to be paid engagement and discharge of seamen belonging to foreign-going ships on such running which have running agreements as aforesaid, the crew shall be considered "Sreements. to be engaged when the agreement is first signed, and to be discharged when the agreement finally terminates, and all intermediate engagements and discharges shall be considered to be engagements and discharges of single seamen. CLV. In the case of home-trade ships, crews or single seamen may, if the In home-trade master thinks fit, be engaged before a shipping master in the manner here- !'"f ^ agreement inbefore directed with respect to foreign-going ships ; and in every case in into^before'a which the engagement is not so made, the master shall, before the ship shipping master puts to sea, if practicable, and if not, as soon afterwards as possible, cause or other witness, the agreement to be read over and explained to each seaman, and the seaman shall thereupon sign the same in the presence of a witness who shall attest his signature. CLVI. In oases where several home-trade ships belong to the same owner, Special agree- the agreement with the seamen may, notwithstanding anything herein con- P^** ^ home- taiued, be made by the owner instead of by the master, and the seamen may belonging to be engaged to serve in any two or more of such ships, provided that the same owners, names of the ships and the nature of the service are specified in the agree- ment ; but with the foregoing exception all provisions herein contained which relate to ordinary agreements for home-trade ships shall be applicable to kgreements made in pursuance of this section. CLVII. If in any case a master carries any seaman to sea without enter- Penalty for ing into an agreement with him in the form and manner and at the place and ^PP™^ seamen time hereby in such case required, the master in the case of a foreign-going ment'dul^^^ ship, and the master or owner in the case of a home-trade ship, shall for executed, each such offence incur a penalty not exceeding five pounds. CLVIII. The master of every foreign-going ship of which the crew has pianges in crew been engaged before a shipping master shall before finally leaving the to be reported. United Kingdom sign and send to the nearest shipping master a f uU and accurate statement in a form sanctioned by the board of trade of every change which takes place in his crew before finally leaving the United Kingdom, and in default shall for each offence incur a penalty not exceeding five pounds ; and such statement shall be admissible in evidence, subject to all just exceptions. 856 17 & 18 Vict. cap. 104. m. Engagement 0/ Seamen. Seamen engaged in the colonies to be shipped before some shipping master or officer of customs. Seamen engaged in ?orei^ port to ,be smpped •with the sanction and in the pre- sence of the consul. Bules as to pro- duction of agreements and certiiicates of masters and mates of foreign- going ships. CLIX. Every master of a sMp -who, if such ship be registered in the United Kingdom, engages any seaman in_ any British possession, or if such ship belongs to any British possession engages any seaman in any British possession other than that to which the ship belongs, shall, if there is at the place where such seaman is engaged any official shipping master or other officer duly appointed for the purpose of shipping seamen, engage such sea- man before such shipping master, and if there is no such shipping master or officer, then before some officer of customs ; and the same rules, qualifications, and penalties as are hereinbefore specified with respect to the engagement of seamen before shipping masters in the United Kingdom shall apply to such engagements in a British possession ; and upon eyery such engagement such shipping master or officer as aforesaid shall indorse upon the agreement an attestation to the effect that the same has been signed in his presence, and otherwise made as hereby required ; and if in any case such attestation is not made, the burden of proring that the seaman was duly engaged as hereby required shall lie upon the master. CLX. Every master of a British ship who engages any seaman at any place out of Her Majesty's dominions in which there is a British consular officer shall, before carrying su(^ seaman to sea, procure the sanction of such officer, and shall engage such seaman before such officer ; and the same rules as are hereinbefore contained with respect to the engagement of seamen before shipping masters in the United Kingdom shall apply to such engage- ments made before consular officers ; and upon every such engagement the consular officer shall indorse upon the agreement his sanction thereof, and an attestation to the effect that .the same has been signed in his presence, and otherwise made, as hereby required ; and every master who engages any sea- man in any place in which there is a consular officer, otherwise than as hereinbefore required, shall incur a penalty not exceeding twenty pounds ; and if in any case the indorsement and attestation hereby required is not made upon the agreement, the burden of proving the engagement to have been made as hereinbefore required shall lie upon the master. OLXI. The following rules shall be observed with respept to the production of agreements and certificates of competency or service for foreign-going ships ; (that is to say,) (1). The master of every foreign-going ship shall, on signing the agreement with his crew, produce to the dipping master before whom the same is signed the certificates of competency or service which the said master and his first and second mate or only mate, as the case may be, are hereby required to possess ; and upon such production being duly made, and the agreement being duly executed as hereby re- quired, the shipping master shall sign and give to the master a cer- tificate to that effect : (2) . In the case of running agreements for foreign-going ships the shippiag master shall, before the second and every subsequent voyage made after the first commencement of the agreement, sign and give to the master, on his complying with the provisions herein contained with respect to such agreements, and producing to the shipping master the certificate of competency or service of any first, second, or only mate then fiist engaged by him, a certificate to that effect : The master of every foreign- going ship shall, before proceeding to sea, produce the certificate so to be given to him by the shipping master as aforesaid, to the ooUeotor or comptroller of customs, and no officer of customs shall clear any such ship outwards without such produc- tion ; and if any such ship attempts to go to sea without a clearance, any such officer may detain her until such certificate as aforesaid is produced : The master of every foreign-going ship shall, within forty-eighthours after the ship's arrival at her final port of destination in the United Kingdom, or upon the discharge of the crew, whichever first happens, deliver such agreement to a shipping master at the place ; and such shipping master shaU thereupon give to the master a certificate of such delivery ; and no officer of customs shall clear any foreign-going ship inwards without the production of such certificate : And if the master of any foreign- going ship fails to deliver the agreement to a shipping master at the time and in the manner hereby directed, he shall for every default incur a penalty not exceeding five pounds. (3). (4). Merchant Shipping Act. 857 OLXII. The following rules shall be observed with respect to the produo- m. Engagement tion of agreements and certificates or competency "of service for home-trade 0/ Seamen. ships ; (that is to say) , ,. , , , Hules^topro- (1). In the case 01 home-trade ships of more than eighty tons burden, no ductionof agreement shall extend beyond the next following thirtieth day of agreemeots and June or thirty-first day of December, or the first arrival of the ship J^^^ade at her final port of destination in the United Kingdom after such ships, date, or the discharge of cargo consequent upon such arrival («) . (2). The master or owner of every such ship shall, within twenty- one days ■• aftet the thirtieth day of June and the thirty-first day of December in every year, transmit or deliver to some shipping master in the United Kingdom every agreement made within the six calendar months next preceding such days respectively, and shall also in the case of home-trade passenger ships produce to the shipping master the certificates of competency or service which the said master, and his first or only mate, as the case may be, are hereby required to possess : ^ (3) . The shipping master shall thereupon give to the master or owner a certificate of such delivery and production ; and no officer of cus- toms shall grant a clearance or transire for any such ship as last aforesaid without the production of such certificate ; and if any such ship attempts to ply or go to sea without such clearance or transire, any such officer may detain her until the said certificate is produced : And if the agreement for any home-trade ship is not delivered or transmitted by the master or owner to a shipping master at the time and in the manner hereby directed, such master or owner shall for every default incur a penalty not exceeding five pounds. CLXIII. Every erasure, interlineation, or alteration in any such agreement Alterations to be with seamen as is required by the Third Part of this Act (except additions so Toid "°'^ made as hereinbefore directed for shipping substitutes or persons engaged teen made iria subsequently to the first departure of the ship) shall be wholly inoperative, the consent of unless proved to have been made with the consent of all the persons interested all parties, in such erasure, interlineation, or alteration by the written attestation (if made in Her Majesty's dominions) of some shipping master, justice, officer of customs, or other public functionary, or (it made out of Her Majesty's dominions) of a British consular officer, or, where there is no such officer, of two respectable British merchants. CLXTV. Every person who fraudulently alters, assists in fraudulently Penalty for altering, or procures to be fraudulently altered, or makes, or assists in mak- falsifying agree- ing, or procures to be made, any false entry in, or delivers, assists in deliver- ™^° ' ing, or procures to be delivered, a false copy of any agreement, shaU for each such offence be deemed guilty of a misdemeanor. CLXV. Any seaman may bring forward evidence to prove the contents of Seamen not any agreement or otherwise to support his case, without in-oducing or giving duce a^eemeut. notice to produce the agreement or any copy thereof. CLXVI. The master shall at the commencement of every voyage or Copyofagree- engagement cause a legible copy of the agreement (omitting the signatures) ^^^le to"**^ to be placed or posted up in such part of the ship, as to be accessible of the ^p^^ crew, and in default shall for each offence incur a penalty not exceeding five pounds. CLXVII. Any seaman who has signed an agreement, and is afterwards ^^™'^?'^ discharged before the commencement of the voyage, or before one month's TO^SetS^Svl wages are earned, without fault on his part justifying such discharge, and compensation, without his consent, shall be entitled to receive from the master or owner, in addition to any wages he may have earned, due compensation for the damage thereby caused to him, not exceeding one month's wages, and may, on ad- ducing such evidence as the court hearing the case deems satisfactory of his having been so improperly discharged as aforesaid, recover such compensa- tion as if it were wages duly earned. («) 35 & 36 Vict. c. 73, s. 16, infra. 858 17 & 18 Vict. cap. 104; HI. Allotment of Wages. Be^ulations as to allotment notes. Allotment notes may be sued on summarily by certain persons and under certain condi- tions (o). Allotment of Wages. CLXVIII. All stipulations for the allotment of any part of tlie wages of a seaman during his absence which are made at the commencement of the voyage shall be inserted in the agreement, and shall state the amounts and times of the payments to be made ; and all allotment notes shall be in forms sanctioned by the board of trade. CLXIX. The wife, or the father or mother, or the grandfather or grand- mother, or any child or grandchild, or any brother or sister of any seaman in whose favour an allotment note of part of the wages of such seaman is made, may, unless the seaman is shown in manner hereinafter mentioned to have forfeited or ceased to be entitled to the wages out of which the allotment is to be paid, and subject, as to the wife, to the provision hereinafter contained, sue for and recover the sums allotted by the note when and as the same are made payable, with costs, from the owner or any agent who has authorized the drawing of the note, either in the county court or in the summary manner in which seamen are by this Act enabled to sue for and recover wages not exceeding fifty pounds ; and in any such proceeding it shall be sufficient for the claimant to prove that he or she is the person mentioned in the note, and that the note was given by the owner or by the master or some other authorized agent ; and the seaman shall be presumed to be duly earning his wages, unless the contrary is shown to the satisfaction of the court, either by the official statement of the change in "the crew caused by his absence made and signed by the master, as by this Act is required, or by a duly certified copy of some entry in the official log book to the effect that he has left the ship, or by a credible letter from the master of the ship to the same effect, or by such other evidence, of whatever description, as the court in its absolute discretion considers sufficient to show satisfactorily that the seaman has ceased to be entitled to the wages out of which the allotment is to be paid : Provided that the wife of any seaman who deserts her children, or so misconducts herself as to be undeserving of support from her husband, shall thereupon forfeit all right to further payments of any allotment of his wages which has been made in her favour. Disehurge a-nd Payment of Wages. Discharge from foreign-going ships to be made before shipping master. Master to deliver account of wages. On discharge, masters to give seamen certifi- cates of dis- cbarge, and re- Dischwge anil Payment of Wages. OLXX. In the case of all British foreign-going shipSj in whatever part of her Majesty's dominions the same are registered, all seamen discharged in the United Kingdom shall be discharged and receive their wages in the presence of a shipping master duly appointed under this Act, except in cases where some competent court otherwise directs ; and any master or owner of any such ship who discharges any seaman belonging thereto, or, except as aforesaid, pays his wages within the United Kingdom in any other manner, shall incur a penalty not exceeding ten pounds ; and in the case of home- trade ships seamen may, if the owner or master so desires, be discharged and receive their wages in like manner. CLXXI. Every master shaU, not less than twenty-four hours before pay- ing off or discharging any seaman, deliver to him, or if he is to be discharged before a shipping master, to such shipping master {p),& full and true account in a form sanctioned by the board of trade of his wages and of all deductions to be made therefrom on any account whatever, and in default shall for each offence incur a penalty not exceeding five pounds ; and no deduction from the wages of any seaman (except in respect of any matter happening after such delivery) shall be allowed unless it is included in the account so delivered ; and the master shall during the voyage enter the various matters in respect of which such deductions are made, with the amounts of the respective deductions as they occur, in a book to be kept for that purpose, and , shall, if required, produce such book at the time of the payment of wages, and also upon the hearing before any competent authority of any complaint or question relating to such payments. CLXXII. Upon the discharge of any seaman, or upon payment of his wages, the master shall sign and give him a certificate of his discharge, in a form sanctioned by the board of trade, specifying the period of his service and the time and place of his dischai-ge ; and If any master fails to (o) See 43 & 44 Vict, o. 16, ss. 2, 3, infra. {p) See 43 & 44 Vict. u. 16, s. 4 (2), infra. Merchant Shipping Act. 859 sign and give to any such seaman such certiiioate of discharge he m. Discharge shall for each such offence incur a penalty not exceeding ten pounds ; and ""^ Payment of the master shall also, upon the discharge of every certificated mate whose Wages. certificate of competency or service has been delivered to and retained by turn certiflcates him, return such certificate, and shall in default incur a penalty not exceed- °' competency ing twenty pounds. <"' service to CLXXIII. Every shipping master shall hear and decide any question "l" ! whatever between a master or owner and any of his crew which both may^ade*'*" parties agree in writing to submit to him ; and every award so made by him questions which shall be binding on both parties, and shall in any legal proceeding which parties refer to may be taken in the matter before any court of justice be deemed to be con- '""'• elusive as to the right of the parties ; and no such submission or award shall require a stamp; and any document purporting to be such submission or award shall be prim4 facie evidence thereof. CLXXIV. In any proceeding relating to the wages, claims, or discharge Master and of any seaman carried on before any shipping master under the provisions of others to pro- this Act, such shipping master may call upon the owner or his agent, or upon '^"™ *'^'''\- the master or any mate or other member of the crew, to produce any log pK maatersf " books, papers, or other documents in their respective possession or power ana give relating to any matter in question in such proceeding, and may call before evidence. him and examine any of such persons being then at or near the place on any such matter ; and every owner, agent, master, mate, or other member of the crew who when called upon by the shipping master does not produce any such paper or document as aforesaid, if in his possession or power, or does not appear and give evidence, shall, unless he shows some reasonable excuse for such default for each such offence incur a penalty not exceeding five pounds. CLXXV. The following rules shall be observed with respect to the settle- Settlement of ment of wages (j) ; (that is to say,) wages. (1). Upon the completion before a shipping master of any discharge and Release to be settlement, the master or owner and each seaman shall respectively signed before in the presence of the shipping master sign in a form sanctioned th^sijppw^^ by the board of trade a, mutual release of all claims in respect master • of the past voyage or engagement, and the shipping master shall also sign and attest it, and shall retain and transmit it as herein directed : (2), Such release so signed and attested shall operate as a mutual discharge to be discharge ; and settlement of all demands between the parties thereto in respect of the past voyage or engagement : (3). A copy of such release certified under the hand of such shipping and to be master to be a true copy shall be given by him to any party evidence, thereto requiring the same ; and such copy shall be receivable in evidence upon any future question touching such claims as afore - said, and shall have all the effect of the original of which it purports to be a copy : (4). In cases in which discharge and settlement before a shipping master No other receipt are hereby required, no payment, receipt, settlement, or discharge to be a discharge, otherwise made shall operate or be admitted as evidence of the release or satisfaction of any claim : (6). Upon any payment being made by a master before a shipping master, Voucher to be the shipping master shall, if required, sign and give to such master given to master, a statement of the whole amount so paid, and such statement shall 1°^.^ ^ ^^' as between the master and his employer be received as evidence that he has made the payments therein mentioned. CLXXVI. Upon every discharge effected before a shipping master the Master to make master shall make and sign in a form sanctioned by the board of trade a reports of report of the conduct, character, and qualifications of the persons discharged, character. or may state in a colnmn to be left for that purpose in the said form that he declines to give any opinion upon such particulars or upon any of them ; and the shipping master shall transmit the same to the registrar-general of seamen, or to such other person as the board of trade directs, to be recorded, and shall, if desired so to do by any seaman, give to him or indorse on his certificate of discharge a copy of so much of such report as concerns him ; (?) 43 & 44 Vict. u. 16, s. 4 (3), infra. 860 17 & 18 Vict. cap. 104. rn. Disdharge and every person who makes, assists in making, or procures to be made any and Payment of f^jge certificate or report of the service, quaJifloations, conduct, or character _f£!"" of any seaman, knowing the same to be false, or who forges, assists in forging, or procures to be forged, or fraudulently alters, assists in fraudu- lently altering, or procures to be fraudulently altered, any such certificate or report, or who fraudulently makes use of any certificate or report or of any copy of any certificate or report which is forged or altered or does not belong to him, shall for each such offence be deemed guilty of a misdemeanor. Bcmiitance of Wages and Savings Banks for Seamen, Facilities may be given for remitting sea^ men's wages. Power to pay •when order is lost. Penalty for isstting money orders ■with fraudulent intent, SaTings banks for seamen may be esta- blished (r). Memittance of Wages and Savings Banks for Seamen. CLXXVII. Facilities shall, if the board of trade so directs, be giren for remitting the wages and other monies of seamen and apprentices to their relatives or other persons by means of money carders issued by shipping masters ; and the board of trade may make regulations concerning such orders, and the persons by or to whom, and the mode and time in and at which, the same are to be paid, and may from time to time repeal or alter any such regulations ; and all such regulations, so long as they are in force, shall be binding upon all persons interested or claiming to be interested in such orders, as well as upon the officers employed in issuing or paying the same ; and no legal proceeding shall be instituted against the board of trade, or against any shipping master or other public officer employed about such orders, on account of any such regulations, or on account of any act done or left undone in pursuance thereof, or on account of any refusal, neglect, or omission to pay any such money order, unless such refusal, neglect, or omis- sion arise from fraud or wilful misbehaviour on the part of the person against whom proceedings are instituted. CLX5VIII. The board of trade may, in any case in which it thinks fit so to do, cause the amount of any such money order as aforesaid to be paid to the person to whom or in whose favour the same may have been granted, or to his personal representatives, legatees, or next of kin, notwithstanding tiat such order may not be in his or their possession ; and in all such cases from and after such payment the board of trade and every shipping master or other officer of the board of trade shall be freed from aU liabiUty in respect of such order. CLXXIX. Every shipping master or other public officer who grants or issues any money order with a fraudulent intent shall in England or Ireland be deemed guilty of felony, and in Scotland of a high crime and offence, and shall be liable to be kept in penal servitude for a term not exceeding four years. CLXXX. The commissioners for the reduction of the national debt, or the comptroller-general acting under them, may, on the application and recom- mendation of the board of trade, establish savings banks at such ports and places within the United Kingdom, either of the shipping offices established in such ports or elsewhere, as may appear to be expeiUent, and may appoint treasurers to receive from or on account of seamen, or the wives and families of seamen desirous to become depositors in such savings banks, deposits to an amount not exceeding one hundred and fifty pounds in the whole in respect of any one account, under such regulations as may be prescribed by the said commissioners or comptroller-general; and such regulations shall be binding on all such treasurers and depositors ; and the said commissioners may remove such treasurers, and appoint others in their place ; and all the pro- visions of the Acts now in force relating to savings banks, except so far as relates to the annual amount of deposit, shall apply to all savings banks which may be established under the authority of this Act, and to such treasurers and depositors as aforesaid. Legal Mights to Wages, Right to wages and provisions, when to begin. Zegal Sights to Wages, CLXXXI. A seaman's right to wages and provisions shall be taken to commence either at the time at which he commences work or at the times specified in the agreement for his commencement of work or presence on board, whichever first happens. (»■) Extended to seamen in navy by 18 & 19 Vict. o. 91, s. 17, infra. Merchant Shipping Act. 861 CLXXXII. No seaman shall by any agreement forfeit his lien upon the m. Legal MigJits ship or be deprived of any remedy for the recovery of his wages to which he *" Wages. would otherwise have been entitled ; and every stipulation in any agreement Seamen not to inconsistent with any provision of this Act, and every stipulation by which give up certain any seaman consents to abandon his right to wages in the case of the loss of rights (s). the ship, or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative (t). CLXXXIII. No right to wages shall be dependent on the earning of TVoges not to be freight ; and every seaman and apprentice who would be entitled to demand dependent on and recover any wages if the ship in which he has served had earned freight, fre°iBht°™^ °* shall, subject to all other rules of law and conditions applicable to the case, be entitled to claim and recover the same, notwithstandmg that freight has not been earned : but in all cases of wreck or loss of the ship, proof that he has not exerted himself to the utmost to save the ship, cargo, and stores shall bar his claim. CLXXXIV. If any seaman or apprentice to whom wages are due under in case of death the last-preceding enactment dies before the same are paid, they shall be such wages to be paid and applied in the maimer hereinafter specified with regard to the P^id as after wages of seamen who die daring a voyage. "™ '""^ ' CL XXX V. In cases where the service of any seaman terminates before the Rights to wages period contemplated in the agreement by reason of the wreck or loss of the ^9?^^ °t termi- ship, and also in cases where such service terminates before such period as by wreck ^'^'^ aforesaid by reason of his being left on shore at any place abroad under a illness, certificate of his unfitness or inability to proceed on tne voyage granted as hereinafter mentioned, such seaman shall be entitled to wages for the time of service prior to such termination as aforesaid, but not for any further period. CLXXXVI. No seaman or apprentice shall be entitled to wages for any Wages not to period during which he unlawfully refuses or neglects to work when required, accrue dm-ing whether before or after the time fixed by the agreement for his beginning „ imprSon- work, nor, unless the court hearing the case otherwise directs, for any period ment. during which he is lawfully imprisoned for any oflEenoe committed by him. CL XXX yil. The master or owner of any ship shall pay to every seaman Period within his wages within the respective periods following ; (that is to say,) in the case which wiyes are of a home-trade ship within two days after the termination of the agreement ^ or at the time when such seaman is discharged, whichever first happens ; and in the case of all other ships (except ships employed in the southern whale fishery or on other voyages for which seamen by the terms of their agreement are wholly compensated by shares in the profits of the adventure) within three days after the cargo has been delivered, or within five days after the seaman's discharge, whichever first happens ; and in all cases the seaman shall at the time of his discharge be entitled to be paid on account a sum equal to one-fourth part of the balance due to him ; and every master or owner who neglects or refuses to make payment in manner aforesaid, without su£G.cient cause, shall pay to the seaman a sum not exceeding the amount of two days' pay for each of the days, not exceeding ten days, during which payment is delayed beyond the respective periods aforesaid, and such sum shall be recoverable as wages. Mode of recovering Wages. Mode of recover- ing Wages. CLXXXVIII. Any seaman or apprentice, or any person duly authorised on his behalf, may sue in a summary manner before any two justices of the forwa^s'm a"^ peace acting in or near to the place at which the service has terminated, or summmy at which the seaman or apprentice has been discharged, or at which any manner, person upon whom the claim is made is or resides, or in Scotland either before any such justices or before the sherifE of the county within which any such place is situated, for any amount of wages due to such seaman or ap- prentice not exceeding fifty poxmds over and above the costs of any proceed- ing for the recovery thereof, so soon as the same becomes payable ; and every order made by such justices or sheriff in the matter shall be final. (s) See 25 & 26 Vict. o. 63, s. 18, (<) As to fishermen, see 36 & 37 infra. Vict. o. 85, s. 8, infra. 862 17 & 18 Vict. cap. 104. m. Mode of recovering Wages. Restrictions on suits for wages in superior courts. No seaman to sue for wages abroad, except in cases of dis- charge or of danger to life. Master to have same remedies for wages as seamen. Helieflo Seamen* a Families out of Poor Rates, Belief to sea- men's families to be chargeable on a certain pro- portion of their wages. Notice to be given to owner, and charge to be enforced on the return of the seaman. CLXXXIX. No suit or proceeding for the recovery of -wages under the sum of fifty pounds shall be instituted by or on behalf of any seaman or apprentice in any court of admiralty or vice-admiralty («), or in the court of session in Scotland, or in any superior court of record in her Majesty's dominions, unless the owner of the ship is adjudged bankrupt or declared insolvent, or unless the ship is under arrest or is sold by the authority of any such court as aforesaid, or unless any justices acting under the authority of this Act refer the case to be adjudged by such court, or unless neither the owner nor master is or resides within twenty miles of the place where the seaman or apprentice is discharged or put ashore. CXO. No seaman who is engaged for a voyage or engagement which is to terminate in the United Kingdom shall be entitled to sue in any court abroad for wages, unless he is discharged vidth such sanction as herein required and with the written consent of the master, or proves such ill-usage on the part of the master or by his authority as to warrant reasonable apprehension of danger to the life of such seaman if he were to remain on board ; but if any seaman on his return to the United Kingdom proves that the master or owner has been guilty of any conduct or default which but for this enact- ment would have entitled the seaman to sue for wages before the termination of the voyage or engagement, he shall be entitled to recover in addition to his wages such compensation not exceeding twenty pounds as the court hearing the case thinks reasonable. CXOI. Every master of a ship shall, so far as the case permits, have the same rights, liens, and remedies for the recovery of his wages which by this Act or by any law or custom any seaman, not being a master, has for the recovery of his wages ; andT if in any proceeding in any court of admiralty or vice-admiralty touching the claim of a master to wages any right of set-off or counter claim is set up, it shall be lawful for such court to enter into and adjudicate upon all questions, and to settle all accounts then arising or outstanding and unsettled between the parties to the proceeding, and to direct payment of any balance which is found to be due. JRelief to Seamen's Families out of Foor Sates. CXCII. Whenever during the absence of any seaman on a voyage his wife, children, and step-children, or any of them, become or becomes chargeable to any union or parish in the United Kingdom, such union or parish shall be entitled to be reimbursed out of the wages of such seaman earned during such voyage any sums properly expended during his absence in the maintenance of his said relations, or any of them, so that such sums do not exceed the foUovidng proportions of his said wages ; (that is to say,) (1). If only one of such relations is chargeable, one half of such wages; (2). If two or more of such relations are chargeable, two thirds of such wages. But if during the absence of the seaman any sums have been paid by the owner to or on behalf of any such relation as aforesaid, under an allotment note given by the seaman in his, her, or their favour, any such claim for reimbursement as aforesaid shall be limited to the excess (if any) of the proportion of the wages hereinbefore mentioned over the sums so paid. CXCIII. For the purpose of obtaining such reimbursement as aforesaid, the guardians of the union or parish, where the relief of the poor is adminis- tered by guardians, and the overseers of the poor of any other parish in England, and the guardians or other persons having the authority of guardians in any union in Ireland, and the inspector of the poor in Scotland, may give to the owner of the ship in which the seaman is seiTing a notice in writing stating the proportion of the seaman's wages upon which it is intended to make the claim, and requiring the owner to retain such pro- portion in his hands for a period to be therein mentioned, not exceeding twenty-one days fromi the time of the seaman's return to his port of discharge, and also requiring such owner immediately on such return to give to such guardians, overseers, persons, or inspector notice in writing of such return ; and such owner, after receiving such notice as aforesaid, shall be bound to retain the said proportion of wages, and to give notice of the seaman's return accordingly, and shall likewise give to the seaman notice of (m) See, however, 24 Vict. c. 10, s. 10, and the County Courts (Admiralty) Jurisdiction Act, 31 & 32 Vict. o. 71, ss. 3 and 9. Merchant Shipping Act. 863 the intended claim ; and the said guardians, overseers, persons, or inspector HI. Mawf to may upon the seaman's return apply in a summary way in !England or „ x'^'tiit Ireland to any two justices having jurisdiction in such union or parish as popr Hata. aforesaid, and in Scotland to the sheriflE of the comity, for an order for such reimbursement as aforesaid ; and such justices or sherifi may hear the case, and may make an order for such reimbursement to the whole extent aforesaid, or to such lesser amount as they or he may under the circumstances think fit, and the owner shall pay to such guardians, overseers, persons, or inspector, out of the seaman's wages, the amount so ordered to be paid by way of re- imbursement, and shall pay the remainder of the said wages' to the seaman ; and if no such order as aforesaid is obtained within the period mentioned in the notice so to be given to the owner as aforesaid, the proportion of wages so to be retained by him as aforesaid shall immediately on the expiration of such period, and without deduction, be payable to the seaman. Wages and Wages md Effects of deceased Seamen. decm£Tsmmen. CXCIV. Whenever any seaman or apprentice belonging to or sent home „ te~"7" ^^ in any British ship, whether a foreign-going ship or a home-trade ship, chajge of°or sdl employed on a voyage which is to terminate in the United Kingdom, dies effects of during such voyage, the master shall take charge of all money, clothes and deoeaaed seamen effects which he leaves on board, and shall, if he thinks fit, cause all or any ^^^ 'and'enter of the said clothes and effects to be sold by auction at the mast or other' the same and public auction, and shaU thereupon sign an entry in the ofScial log-book wages due in the containing the following particulars ; (that is to say,) official log. (1). A statement of the amount of the money, and a description of the effects so left by the deceased : (2). In case of a sale, a description of each article sold, and the sum received for each : (3). A statement of the sum due to the deceased as wages, and the total amount of the deductions (if any) to be made therefrom (a). And shall cause such entry to be attested by a mate and by one of the crew. CXCV. In the cases provided for by the last preceding section the Such effects and following rules shall be observed ; (that is to say,) -wages to be paid (1). If the ship proceeds at once to any port in the United Kingdom either to consul without touching on the way at any foreign port, the master shall master mth^ within forty-eight hours after his arrival deliver any such effects full accounts, as aforesaid remaining unsold, and pay any money which he has taken charge of or received from such sale as aforesaid, and also the balance of wages due to the deceased, to the shipping master at the port of destination in the United Kingdom : (2). If the ship touches and remains for forty-eight hours at some foreign port or at some port in her Majesty's dominions abroad before coming to any port in the United Kingdom, the master shall report the case to the British consular officer or officer of customs there, as the case may be, and shall give to such officer any information he requires as to the destination of the ship and probable length of the voyage ; and such officer may thereupon, if he considers it expedient so to do, require the said effects, money and wages to be delivered and paid to him, and shall upon such delivery and pay- ment give to the master a receipt, and the master shall witMn forty-eight hours after his arrival at his port of destination in the United Kingdom produce the same to the shipping master there ; and such consular officer or officer of customs shall in such case indorse and certify upon the agreement with the crew such par- ticulars with respect to such delivery and payment as the board of trade requires : (3). If such officer as aforesaid does not require such payment and delivery to be made to him, the master shall take charge of the said effects, money and wages, and shall within forty -eight hours after his arrival at his port of destination in the United Kingdom deliver and pay the same to the shipping master there : (4). The master shall in all cases in which any seaman or apprentice dies during the progress of a voyage or engagement give to the board [x] 25 & 25 Vict. c. 63, a. 21, infra. 864 17 & 18 Vict cap. 104. HE. Wages and of trade, Or to suoli officer or shipping master as aforesaid, an Effects' of de- account in sucli form as they respectively reguire of the effects, cease d Sea men. money and wages bo to be deKvered and paid ; and no deductions claimed in such account shall he allowed unless verified, if there is any official log-hook, by such entry therein as hereinbefore required, and also by such other vouchers (if any) as may be reasonably required by the board of trade, or by the officer or shipping master to whom the account is rendered : (6). Upon due compliance with such of the provisions of this section as relate to acts to be done at the port of destination in the United Kingdom, the shipping master shall grant to the master a certificate to liat effect, and no officer of customs shall clear inwards any foreign-going ship without the production of such certificate. Penalties for not CXOVI. If any master fails to take such charge of the money or other taking charge of, effects of a seaman or apprentice dying during a voyage, or to make such ac™un^g'?or entries in respect thereof, or to procure such attestation to such entries, or to siicli moneys and make such payment or dehvery of any money, wages or effects of any seaman effects. or apprentice dying daring a voyage, or to give such account in respect thereof as hereinbefore respectively directed, he shall be accountable for the money, wages and effects of the seaman or apprentice to the board of trade, and shall pay and deliver the same aocordiiigly ; and such master shall in addition for every such offence incur a penalty not exceeding treble the value •of the money or effects not accounted for, or if such value is not ascertained, not exceeding fifty pounds ; and if any such money, wages or effects are not duly paid, delivered or accounted for by the master, the owner of the ship shall pay, deliver and account for the same, and such money and wages and the value of such effects shall be recoverable from him accordingly ; and if he faUs to account for and pay the same, he shall, in addition to his liability for the said money and value, incur the same penalty which is hereinbefore mentioned as incurred by the master for the like offence ; and all money, wages and effects of any seaman or apprentice dying during a voyage shall be recoverable in the same courts and by the same modes of proceeding by which seamen are hereby enabled to recover wages due to them (y). Officers of OXCVII. If any such seaman or apprentice as last aforesaid dies abroad at customs and any place either in or out of her Majesty's dominions leaving any money or charge rf Sects effects not on board his ship, the chief officer of customs or the British left by seamen consular officer at or nearest to the place, as the case may be, shall claim and abroad, and to take charge of such money and effects ; ajid such officer shall, if he thinks aS'thdr vasta ^*'' ^^'^ °^ ^^^ °^ ^^ effects, or any effects of any deceased seamen or to board of apprentice delivered to him under the provisions hereinbefore contained ; and trade. every such officer shaU, quarterly or at such other times as the board of trade directs, remit to her Majesty's paymaster-general all moneys belonging to or arising from the sale of the effects of or paid as the wages of any deceased seaman or apprentices which have to come to his hands under the provisions hereinbefore contained, and shall render such accounts in respect thereof as the board of trade requires. Wages and GXCVIII. Whenever any seaman or apprentice dies in the United effects of Kingdom, and is at the time of his death entitled to claim from the master afSme tobe °^ owner of any ship in which he has served any unpaid wages or effects, paid in certain such master or owner shaU pay and deliver or account for the same to the cases to board of shipping master at the port where the seaman or apprentiog was discharged, ^^^^- or was to have been discharged, or to the board of trade, or as it directs. If less than 501. CXOIX. If the money and effects of any deceased seaman or apprentice wages and pro- paid, delivered, or remitted to the board of trade or its agents, including §eoeas^d seamen ^^^ moneys received for any part of the said effects whidx have been sold may be paid either before delivery to the board of. trade or by its direction, do not exceed over without in value the sum of fifty pounds, then, subject to the provisions hereinafter nkteaHo'"f^tti" eontained, and to all such deductions for expenses incurred in respect of the persons seaman or apprentice or of his said money and effects as the said board entitled. thinks proper to allow, the said board may, if it thinks fit so to do, pay and deliver the said money and effects either to any claimants who can prove tliemselves to the satisfaction of the said board either to be his widow or children, or to be entitled to the effects of the deceased under his will (if any), or under the statutes for the distribution of the effects of intestates, or under (y) See 25 & 26 Vict. o. 63, s. 20, infm. Merchant Shipping Act. 865 any other statute, or at commou law, or to be entitled to procure probate or m. Wa^a and take out letters of administration or confirmation, although no probate or Sffec^ofiU- letters of administration or confirmation have been taken out, and shall be """ Mmen. thereby discharged from all further liability in respect of the money and effects so paid and delivered, or may, if it thinks fit so to do, require probate or letters of administration or confirmation to be taken out, and thereupon pay and deliver the said money and effects to the legal personal representatives of the deceased ; and all claimants to whom such money or effects are so paid or delivered shall apply the same in due course of administration ; and if such money and effects exceed in value the sum of fifty pounds, then, subject to the provisions hereinafter contained and to deduction for expenses, the board of trade shall pay and deliver the same to the legal personal representatives of the deceased. CO. In cases where the deceased seaman or apprentice has left a will, the Mode of pay- board of trade shall have the following powers ; (that is to say,) ™.??' binder (1.) It may in its discretion refuse to pay or deliver any such wages or byse^en. effects as aforesaid to, any person claiming to be entitled thereto under a will made on board ship unless such will is in writing, and is signed or acknowledged by the testator in the presence of the master or first or only mate of the ship, and is attested by such master or mate : (2.) It may in its discretion refuse to pay or deliver any such wages or effects as aforesaid to any person not being related to the testator by blood or marriage who claims to be entitled thereto under a wiU made elsewhere than on board ship, unless such wiU is ia writing, and is signed or acknowledged by the testator in the presence of two witnesses, one of whom is some shipping master appointed under this Act, or some minister or officiating minister or curate of the place in which the same is made, or in a place where there are no such persons, some justice of the peace, or some British consular officer, or some officer of customs, and is attested by such witnesses : Whenever any claim made under a will is rejected by the board of trade on account of the said wiU not being made and attested as hereinbefore required, the wages and effects of the deceased shall be dealt with as if no wUl had been made. CCI. The following rules shall be observed with respect to creditors of Provision for deceased seamen and apprentices ; (that is to say, ) payment of just (1 .) No such creditor shall be entitled to claim from the board of trade the CTeditors' and wages or effects of any such seaman or apprentice or any part thereof for preventing by virtue of letters of administration taken out by him, or by virtue fraudulent of confirmation in Scotland as executor creditor : claims. (2.) No such creditor shall be entitled by any means whatever to pay- ment of his debt out of such wages and effects, if the debt accrued more than three years before the death , of the deceased, or if the demand is not made within two years after such death : (3.) Subject as aforesaid, the steps to be taken for procuring payment of such debts shall be as follows; (that is. to say,) Every person making a demand as creditor shall deliver to the board of trade an account in writing in such form as it requires, subscribed with his name, stating the particulars of his demand and the place of his abode, and verified by his declaration made before a justice : (4.) If before such demand is made any claim to the wages and effects of the deceased made by any person interested therein as his widow or oMld, or under a will or under the statutes for the distribution of the effects of intestates, or under any other statute, or at common law, has been allowed, the board of trade shall give notice to the creditor of the allowance of such person's claim, and the creditor shall there- upon have the same rights and remedies against such person as if he or she had received the said wages and effects as the legal personal represantative of the deceased : (5.) If no claim by any such person has been allowed, the board of trade shall proceed to investigate the creditor's account, and may for that purpose require him to prove the same, and to produce all books, accounts, vouchers and papers relating thereto ; and if by such means the creditor duly satisfies the board of trade of the justice of 866 17 & 18 Vict. cap. 104. ill. Wages and Effects of de- ceased Seamen. Mode of dealing fntli undaimed ■wages of Punishment for forgery and false representations in order to obtain wages and property of deceased seamen. Effects of discharged from navy to he dis- posed of by accountant- general of navy. the demand, either in the whole or in part, the same shall he allowed and paid accordingly, so far as the assets in the hands of the board of trade will extend for that purpose, and such payment shall discharge the hoard of trade from all further liability in respect of the money so paid ; but if such board is not so satisfied, or if such books, aooounts, vouchers or papers as aforesaid are not produced, and no sufficient reason is assigned for not producing them, the demand shall be disallowed : (C.) In any case whatever the board of trade may delay the investigation of any demand made by a creditor for the payment of his debt for one year from the time of the first delivery of the demand ; and if in the course of that time a claim to the wages and effects of the deceased is made and substantiated as hereinbefore required by any person interested therein as a widow or child, or under a will, or under the statutes for the distribution of the effects of intestates, or under any other statute, or at common law, the board of trade may pay and deliver the same to such person ; and thereupon the creditor shall have the same rights and remedies against such persons as if he or she had received the same as the legal personal representative of the deceased. ecu. In cases of wages or effects of deceased seamen or apprentices received by the board of trade to which no claim is substantiated within six years after the receipt thereof by such board, it shall be in the absolute discretion of such board, if any subsequent claim is made, either to allow or to refuse the same ; [and, subject to the provision hereinafter contained, the board of trade shall from time to time pay any moneys arising from the unclaimed wages and effects of deceased seamen, which in the opinion of such board it is not necessary to retain for the purpose of satisfying claims, into the receipt of her Majesty's Exchequer in such manner as the Treasury directs, and such moneys shall be carried to and form part of the oonsohdated fund of the United Kingdom (s)]. com. Every person who, for the purpose of obtaining, either for himself or for another, any money or effects of any deceased seaman or apprentice, forges, assists in forging, or procures to be forged, or fraudulently alters, assists in fraudulently altering, or procures to be fraudulently altered, any document purporting to show or assist in showing a right to such wages or effects, and every person who for the purpose aforesaid makes use of any such forged or altered document as aforesaid, or who for the purpose aforesaid gives or makes or procures to be given or made, or assists in giving or making or procuring to be given or made, any false evidence or representation, knowing the same to be false, shall be punishable with penal servitude for a term not exceeding four years, or with imprisonment with or without hard labour for any period not exceeding two years, or if summarily prosecuted and convicted by imprisonment, with or without hard labour, for any period not exceeding six months. CCrV. In the case of seamen invalided or discharged from any of her Majesty's ships, and sent home in merchant ships, any moneys or effects belonging to them which are paid, remitted or delivered to the board of trade, or its agents, under the provisions hereinbefore contained, shall be paid over and disposed of in such manner as the accountant-general of her Majesty's navy directs. Leaving Seamen abroad. On discharge of seamen abroad, by sale of ship or otherwise, certificates of discharge to be given, and seamen to be sent home at expense of owner. Leaving Seamen abroad. GOV. Whenever any British ship is transferred or disposed of at any place out of her Majesty's dominions, and any seaman or apprentice belonging thereto does not in the presence of some British consular officer, or, if there is no such consular officer there, in the presence of one or more respectable British merchants residing at the place, and not interested in the said ship, signify his consent in writing to complete the voyage it continued, and whenever the service of any seaman or apprentice belonging to any British ship terminates at any place out of her Majesty's dominions, the master shall give to each such seaman or apprentice a certificate of discharge in the form sanctioned by the board of trade as aforesaid, and in the case of any (a) Words within brackets repealed by 45 & 46 Vict. c. 66, s. 10. Merchant Shipping Act. 867 certificated mate whose certificate he has retained shall return such certificate HI. Leaving to him, and shall also, besides paying the wages to which such seaman or Seam en ah road. apprentice is entitled, either 'provide him with adequate employment on hoard some other British ship bound to the port in her Majesty's dominions at which he was originally shipped, or to such other port in the United Kingdom as is agreed upon by Mm, or furnish the means of sending him back to such port, or provide him with a passage home, or deposit with such consular officer or such merchant or merchants as aforesaid such a sum of money as is by such ofSoer or merchants deemed sufficient to defray the expenses of his subsistence and passage home ; and such consular officer or merchants shall indorse upon the agreement of the ship which the seaman or apprentice is leaving the particulars of such payment, provision or deposit ; and if the master rrauses or neglects to comply with the requirements of this section, such expenses as last aforesaid, if defrayed by such consular officer or by any other person, shall, unless such seaman or apprentice has been guilty of barratry, be a charge upon the ship to which such seaman or apprentice belonged and upon the owner for the time being thereof, and may he recovered against such owners, with costs, at the suit of the consular officer or other person defraying such expenses, or, in case the same has been allowed to the consular officer out of the public moneys, as a debt due to her Majesty either by ordinary process of law, or in the manner in which seamen are hereby enabled to recover wages ; and such expenses, if defrayed by the seaman or apprentice, shall he recoverable as wages due to him. CCVI. If the master or any other person belonging to any British ship Forcing seamen wrongfully forces on shore and leaves behind, or otherwise wilfully and ""^ store a wrongfully leaves behind, in any place, on shore or at sea, in or out of her ™" emeanor. Majesty's dominions, any seaman or apprentice belonging to such ship before the completion of the voyage for which such person was engaged or the return of the ship to the United Kingdom, he shall for each such offence be deemed guilty of a misdemeanor. CCVII. If the master of any British ship does any of the following No seamen to be things ; (that is to say,) ?^P'T^'^ ™ /I \ T^.* 1- J.. • 1 "i i. • left abroad (1.) Discharges any seaman or apprentice m any place situate m any without oertifl- British possession abroad (except the possession in which he was cateof some shipped), without previously obtaining the sanction in writing functionary, indorsed on the agreement of some public shipping master or other officer duly appointed by the local government in that behalf, or (in the absence of any such functionary) of the chief officer of customs resident at or near the place where the discharge takes place : (2.) Discharges any seaman or apprentice at any place out of her Majesty's dominions without previously obtaining the sanction so indorsed as aforesaid of the British consular officer there, or (in his absence) of two respectable merchants resident there : (3.) Leaves behind any seaman or apprentice at any place situate in any British possession abroad on any ground whatever, without pre- viously obtaining a certificate in writing so indorsed as aforesaid from such officer or person as aforesaid, stating the fact and the cause thereof, whether such cause be unfitness or inability to proceed to sea, or desertion or disappearance : (4.) Leaves behind any seaman or apprentice at any place out of her Majesty's dominions, on shore or at sea, on any ground whatever, without previously obtaining the certificate indorsed in manner and to the effect last aforesaid of the British consular officer there, or (in his absence) of two respectable merchants, if there is any such at or near the place where the ship then is : He shall for each such def aidt be deemed guilty of a misdemeanor ; and the said functionaries shall and the said merchants may examine into the grounds of such proposed discharge, or into the allegation of such unfitness, inability, desertion, or disappearance as aforesaid, in a summary way, and may for that purpose, if they think fit so to do, administer oaths, and may either grant or refuse such sanction or oertifioate as appears to them to be just. CCVIII. Upon the trial of any information, indictment, or other pro- Proof of such ceeding against any person for discharging or leaving behind any seaman or certdflcate to be apprentice contrary to the provisions of this Act, it shall lie upon such ^?.'''® person either to produce the sanction or certificate hereby required, or to VOL. II. — S. 3 M 17 & 18 Vict. CAP. 104. I H- Leaving Semnen abroad. "Wfl^es to be paid -when left behind on ^ound of inability (a). Such wages to be treated as money due to the seamen, subject to pay- ment of expense of their subsist- ence and passage home. Distressed sea- men f otind abroad may be relieved and sent home at the public ex- pense [h). prove that he had obtained the same previously to having discharged or left behind such seaman or apprentice, or that it was impracticable for him to obtain such sanction or certi&oate. CCIX. Every master of any British ship who leaves any seaman or apprentice on shore at any place abroad in or out of her Majesty's dominions, under a certificate of his unfitness or inability to proceed on the voyage, shall deliver to one of the functionaries aforesaid, or (in the absence of such functionaries) to the merchants by whom such certificate is signed, or, if there be but one respectable merchant resident at such place, to him, a full and true account of the wages due to such seaman or apprentice, such account when delivered to a consular officer to be in duplicate, and shall pay the same either in money or by a bill drawn upon the owner (a) ; and in the case of every bill so drawn, such functionary, merchants or merchant as aforesaid, shall by indorsement certify thereon that the same is drawn for money due on account of a seaman's wages, and shall also indorse the amount for which such bill is drawn, with such further particulars in respect of the case as the board of trade requires, upon the agreement of the ship ; and every such master as aforesaid who refuses or neglects to deliver a full account of such wages, and pay the amount thereof in money or by bill, as hereinbefore required, shall for every such ofienSe or default be liable, in addition to the payment of the wages, to a penalty not exceeding ten pounds ; and every such master who delivers a false account of such wages shall for every such offence, iu addition to the payment of the wages, incur a penalty not exceeding twenty pounds. OCX. Every such payment as last aforesaid, whether by biU or in money, shall, if made iu any British possession, be made to the seaman or apprentice himself, and, if made out of her Majesty's dominions, to the consular officer, who shall, if satisfied with the account, indorse on one of the duplicates thereof a receipt for the amount paid or bill delivered, and shall return the same to the master ; and the master shall within forty-eight hours after his return to his port of destination iu the United Kingdom, deliver the same to the shipping master there ; and the consular officer shall retain the other duplicate of the said account, and shall, if the seaman or apprentice subse- quently obtains employment at or otherwise quits the port, deduct out of the sum received by him as aforesaid any expenses which have been incurred by him in respect of the subsistence of the seaman or apprentice under the pro- visions herein contained, except such as the master or owner of the ship is hereby required to pay, and shall pay the remainder to the seamaa or apprentice, and shall also deliver to biTn an account of the sums so received and expended on his behalf ; and shall, if the seaman or apprentice dies before his ship quits the port, deal with lie same in the manner hereinafter specified in that behalf, and shall, if the seaman or apprentice is sent home at the public expense under the provisions herein contained, account for the amount received to the board of trade ; and such amount shall, after deduct- ing any expenses which have been duly incurred in respect of such seaman or apprentice, except such as the master or owner of the ship is hereby required to pay, be dealt with as wages to which he is entitled, and shall be paid accordingly. CCXI. The governors, consular officers, and other officers of her Majesty in foreign countries shall, and in places where there are no such governors or officers, any two resident British merchants may, provide for the sub- sistence of all seamen or apprentices, being subjects of her Majesty, who have been shipwrecked, discharged, or left beMnd at amy place abroad, whether from any ship employed iu the merchant service or from any of her Majesty's ships, or who have been engaged by any person acting either as principal or agent to serve in any ship belonging to any foreign power or to the subject of any foreign state, and who are in distress in any place abroad, until such time as they are able to provide them with a passage home, and for that purpose shall cause such seamen or apprentices to be put on board some ship belonging to any subject of her Majesty bound to any port of the United Kingdom, or to the British possession to which they belong (as the case requires), which is in want of men to make up its complement, and in (ffl) See 26 & 26 Vict. o. 63, b. 19, infra. (i) See 18 & 19 Viet. o. 91, s. 16, and 2S & 26 Vict. o. 63, b. 22, infra. Merchant Shipping Act. defaiilt of any such ship shall provide them with a passage home as soon as in. Leaving possible in some ship belonging to a subject of her Majesty so bound as Seam en ab road. aforesaid, and shall indorse on the agreement of any ship on board of which any seaman or apprentice is so taken or sent the name of every person so sent on board thereof, with such particulars concerning the case as the board of trade requires, and shall be allowed for the subsistence of any such sea- man or apprentice such sum per diem as the board of trade from time to time appoints ; and the amount due in respect of such allowance shall be paid [out of any moneys applicable to the reUef of distressed British seamen, and granted by Parliament for the purpose] (c), on the production of the bills of the disbursements, with the proper vouchers. CCXII. The master of every British ship so hound as aforesaid shall receive Masters of and afford a passage and subsistence to all seamen or apprentices whom he is ?"'^°j'?? required to take on board his ship under the provisions hereinbefore con- take i^mn (d). tained, not exceeding one for evQry fifty tons burden, and shall during the passage provide every such seaman or apprentice with a proper berth or sleeping place effectually protected against sea and weather ; and on the production of a certificate signed by any governor, consular officer, or mer- chants by whose directions any such seaman or apprentice was received on board, specifying the number and names of such seamen or apprentices, and the time when each of them respectively was received on board, and on a declaration made by such person before a justice, and verified by the regis- trar-general of seamen, stating the number of days during which each sea- man or apprentice received subsistence and was provided for as aforesaid on board his ship, and stating also the number of men and boys forming the complement of his crew ; and the number of seamen and apprentices em- ployed on board his ship during such time, and every variation (if any) of such number, such person shall be entitled to be paid out of the same moneys applicable to the relief of distressed British seamen, in respect of the sub- sistence and passage of every seaman or apprentice so conveyed, subsisted, and provided for by bim exceeding the number (if any) wanted to make up the complement of his crew, such sum per diem as the board of trade from time to time appoints ; and if any person having charge of any such ship fails or refuses to receive on board his ship, or to give a passage home, or sub- sistence to, or to provide for any such seaman or apprentice as aforesaid, contrary to the provisions of this Act, he shall incur a penalty not exceeding one hundred pounds for each seaman or apprentice with respect to whom he makes such default or refusal. CCXIII. If any seaman or apprentice belonging to any British ship is dis- Power to sue for charged or left behind at any place out of the United Kingdom, without full advaMCd^ortlie compliance on the part of the master with all the provisions in that behalf in relief of seamen this Act contained, and becomes distressed and is relieved under the provi- left abroad, sions of this Act, or if any subject of her Majesty, after having been engaged by any person (whether acting as principal or agent) to serve in any ship belonging to any foreign power, or to the subject of any foreign power, becomes distressed and is relieved as aforesaid, the wages (if any) due to such seaman or apprentice, and all expenses incurred for his subsistence, necessary clothing, conveyance home, and burial, in case he should die abroad before reaching home, shall be a charge upon the ship, whether British or foreign, to which he so belonged as aforesaid ; and the board of trade may in the name of her Majesty (besides suing for any penalties which may have been incurred) sue for and recover the said wages and expenses, witJi costs, either from the master of such ship as aforesaid, or from the person who is owner thereof for the time being, or, in the case of such engagement as aforesaid for service in a foreign ship, from such master or owner, or from the person by whom such engagement was so made as afore- said ; and such sums shall be recoverable eitier in the same manner as other debts due to her Majesty, or in the same manner and by the same form and process in which wages due to the seaman would be recoverable by him ; and in any proceedings for that purpose production of the account (if any) to be furnished as hereinbefore is provided in such cases, together with proof of payment by the board of trade or by the paymaster-general of the charges incurred on account of any such seaman, apprentice, or other person, shall (e) Words within brackets repealed (d) See 25 & 26 Vict. o. 63, b. 22, by 46 & 46 Viot. o. 65, s. 10. infra. 3m2 870 17 «& 18 Vict. cap. 104. Volunteering into the Navy. Seamen allowed to leave their ships in order to enter the navy. Clothea to be delivered at once. "Wa^es to be giTen to the Queen's officer on account of the seamen. Bepayment to owner of ad- yauoe paid and not duly earned. If new seamen are engaged instead of the original seamen, the owner may apply for re- payment of any extra expense he has been put to. Application how to be decided on, and amount of be sufficient evidence that lie -was relieved, conveyed home, or bmied (as the case may be) at her Majesty's expense. Volunteering into the Namy. CCXIV. Any seaman may leave his ship for the purpose of forthwith entering into the naval service of her Majesty, and such leaving his ship shall not be deemed a desertion therefrom, and shall not render him liable to amy punishment or forfeiture whatever ; and all stipulations introduced into any agreement whereby any seaman is declared to incur any forfeiture or be exposed to any loss in case he enters into her Majesty's naval service shall be void, and every master or ovpner who causes any such stipulation to be so introduced shall incur a penalty not exceeding twenty pounds. CCXV. Whenever any seamen, without having previously committed any act amounting to and treated by the master as desertion, leaves his ship in order to enter into the naval service of her Majesty and is received into such service, the master shall deliver to him his clothes and effects on board such ship, and shall pay the proportionate amount of his wages down to the time of such entry, subject to all just deductions, as follows ; (that is to say,) the master of the said ship shaU. pay the same to the officer authorized to receive such seaman into her Majesty's service, either in money or by biU. drawn upon the ovnaer and payable at sight to the order of the accountant-general of the navy : and the receipt of such officer shall be a discharge for the money or bUl so given ; and such bill shall be exempt from stamp duty ; and if such wages are paid in money, such money shall be credited in the muster book of the ship to the account of the said seaman ; and if such wages are paid by bill, such bill shall be noted in the said muster book and shall be sent to the said accountant-general, who shall present the same or cause the same to be presented for payment, and shall credit the produce thereof to the account of the said seaman ; and such money or produce (as the case may be) shall not be paid to the said seaman until the time at which he would have been entitled to receive the same if he had remained in the service of the ship which he had so quitted as aforesaid ; and if any such bUl is not duly paid when presented, the said accountant-general or tbe seaman on whose behalf the same is given may sue thereon or may recover the wages due by all or any of the means by which wages due to merchant seamen are recoverable ; and if upon any seaman leaving his ship in the manner and for the purpose aforesaid, the master fails to deliver his clothes and effects, or to pay his wages as hereinbefore required, he shall, in addition to his liability to pay and deliver the same, incur a penalty not exceeding twenty pounds ; provided that no officer who receives any such bill as aforesaid shall be subject to any liability in respect thereof, except for the safe custody thereof until sent to the said accountant-general as aforesaid. CCXVI. If upon any seaman leaving his ship for the purpose of entering the naval service of her Majesty, the owner or master of such ship shows to the satisfaction of the Admiralty that he has paid or properly rendered him- self liable to pay an advance of wages to or on account of such seaman, and that such seaman has not at the time of quitting his ship duly earned such advance by service therein, and, in the case of such liability as aforesaid, if such owner or master actually satisfies the same, it shall be lawful for the Admiralty to pay to such owner or master so much of such advance as has not been duly earned, and to deduct the sum so paid from the wages of the seaman earned or to be earned in the naval service of her Majesty. CCXVII. If, in consequence of any seaman so leaving his ship without the consent of the master or owner thereof, it becomes necessary for the safety and proper navigation of the said ship to engage a substitute or substitutes, and if the wages or other remuneration paid to such substitute or substitutes for subsequent service exceed the wages or remuneration which would have been payable to the said seaman under his agreement for similar service, the master or owner of the said ship may apply to the registrar of the High Court of Admiralty in England for a certificate authorizing the repayment of such excess ; and such application shall be in such form, and shall be accompanied by such documents, and by such statements, whether on oath or otherwise, as the judge of the said court from time to time directs. CCXVIII. The said registrar shall, upon receiving any such application as aforesaid, give notice thereof in writing, and of the sum claimed, to the MERCHANT Shipping Act. 871 secretary to the admiralty, and shall proceed to examine the said application, HI. Volunieerinf and may call upon the registrar-general of seamen to produce any papers in '"'" '** Navj/. his possession relating thereto, and may call for further evidence ; and if the repa™ent how whole of the claim appears to him to be just, he shall giye a certificate tobeaaoer- acoordingly ; but if he considers that such claim or any part thereof is not tained. just, he shall give notice of such his opinion in writing \mder his hand to the person making the said application, or his attorney or agent ; and if within sixteen days from the giving of such notice such person does not leave or cause to be left at the office of the registrar of the said court a written notice demanding that the said application shall be referred to the judge of the said court, then the said registrar shall finally decide thereon, and certify accord- ingly ; but if such notice is left as aforesaid, then the said application shall stand referred to the said judge in his chambers, and his decision thereon shall be final, and the said registrar shall certify the same accordingly ; and the said registrar and judge respectively shall in every proceeding under this Act have full power to administer oaths, and to exercise aU the ordinary powers of the court, as in any other proceeding within its jurisdiction ; and the said registrar or judge (as the case may be) may, if he think fit, allow for the costs of any proceeding under this Act any sum not exceeding^ five pounds for each seaman so quitting his ship as aforesaid ; and such sum shall be added to the sum allowed, and shall be certified by the said registrar accordingly. CCXIX. Every certificate so given shall be sent by post or otherwise to Acoonntant- the person making the application, his attorney or agent, and a copy thereof eeneral to pay shall be sent to the accountant-general of the navy ; and such accountant- aaowt^ed. general shall, upon delivery to him of the said original certificate, together with a receipt in writing purporting to be a receipt from the master or owner making the applioation, pay to the person delivering the same out of the moneys applicable to the naval service of her Majesty, and granted by Parliament for the purpose, the amount mentioned in such certificate ; and such certificate and receipt shall absolutely discharge the said accountant- general and her Majesty from all liability in respect of the moneys so paid or of the said application. COXX. Every person who, in making or supporting any such application Psnilty for as aforesaid to the registrar of the High Court of Admiralty, forges, assists in rerac^Xtio^ f orgmg or procures to be forged, or fraudulently alters, assists in fraudulently in support of altering or procures to be fraudulently altered, any document, and every person bvuHi applica^ who in making or supporting any such application presents or makes use of *''"'• any such forged or altered document, or who in making or supporting any such application makes or gives, or assists in making or giving, or procures to be made or given, any false evidence or representation, knowing the same to be false, shall be deemed guilty of a misdemeanor. Provisions, Sealth and Accommodation. Prmisions, CCXXI. Any three or more of the crew of any British ship may complain commoiatim. to any officer in command of any of her Majesty's ships, or any British consular officer, or any shipping master, or any chief officer of customs, that Survey of pro- the provisions or water for the use of the crew are at any time of bad quality, ^Ser onlMm- unfit for use or deficient in quantity ; and such officer may thereupon examine plaint made. the said provisions or water, or cause them to be examined; and if on examination such provisions or water are found to be of bad quality and vmfit for use, or to be deficient in quantity, the person making such examination shall signify the same ia writing to the master of the ship ; and if such master does not thereupon provide other proper provisions or water in lieu of any so signified to be of a bad quality and un£t for use, or does not procure the requisite quantity of any so signified to be insufficient in q;Qantity, or uses any provisions or water which have been so signified as aforesaid to be of a bad quality and un£t for use, he shall in every such case incur a penalty not exceeding twenty pounds ; and upon every such examination as aforesaid the officers making or directing the same shall enter a statement of the result of the examination in the official log, and shall send a report thereof to the Board of Trade, and such report, if produced out of the custody of such Board or its officers, shaU be received in evidence in any legal proceeding. CCXXII. If the officer to whom any such complaint as last aforesaid is Forfeiture for made certifies in such statement as aforesaid that there was no reasonable ^^^2^"^ """" 872 17 & 18 Vict. cap. 104. in. Provisions, ground for such complaint, each of the parties so complaining shall be liable ^rnnmodfum' *° ^°^^^^ *" ^^^ owners out of his wages a sum not exceeding one week's Allowance for Bliort or bad proYiBions. Masters to keep weights and measures on board. Board of trade and local boards may appoint inspectors of medicines who are to see that ships are properly provided. CCXXIII. In the following cases ; (that is to say,) (1.) If during a voyage the allowance of any of the proTisions which any seaman has by his agreement stipulated for is reduced (except in accordance with any regulations for reduction by way of punish- ment contained in the agreement, and also except for any time during which such seaman wilfully and without sufficient cause refuses or neglects to perform his duty, or is lawfully under confine- ment for misconduct, either on board or on shore) ; (2.) If it is shown that any of such provisions are or have during the voyage been bad in quaUty and unfit for use ; The seaman shall receive by way of compensation for such reduction or bad quality, according to the time of its continuance, the following sums, to be paid to liini in addition to and to be recoverable as wages ; (that is to say,) (1 .) If his allowance is reduced by any quantity not exceeding one third of the quantity specified in the agreement, a sum not exceeding four- pence a day ; (2.) If his allowance is reduoed by more than one third of such quantity, eightpence a day ; (3.) In respect of such bad quality as aforesaid, a sum not exceeding one shining a day ; But if it is shown to the satisfaction of the court before which the case is tried that any provisions, the allowance of which has been reduced, could not be procured or supplied in proper quantities, and that proper and equivalent substitutes were supplied in lieu thereof, the court slmU take such circumstances into consideration, and shall notify or refuse compensa- tion as the justice of the case may require. CCXSrV. Repealed, 30 & 31 Vict. o. 124, s. 3. CCXXV. Every master shall keep on board proper weights and measures for the purpose of determining the quantities of the several provisions and articles served out, and shall allow the same to be used at the time of serving out such provisions and articles in the presence of a witness whenever any dispute arises about such quantities, and in default shall for every offence incur a penalty not exceeding ten pounds. CCXXVI. Any local marine board may, upon being required by the board of trade so to do, appoint and remove a medical inspector of ships for the port, and may fix Ms remuneration, such remuneration to be subject to the control of the board of trade ; and at ports where there are no local marine boards the board of trade may appoint and remove such inspectors, and fix their remuneration ; and it shall be the duty of such inspectors to inspect the medicines, medical stores, lime or lemon juice or other articles, sugar and vinegar, required to be kept on board any such ships as aforesaid ; and such inspection, if made at places where there are local marine boards, shall be made under their direction, and also in any special cases under the direc- tion of the board of trade, and if made at places where there are no local marine boards, shall be made under the direction of the board of trade ; and such medical inspectors shall for the purposes of such inspection have the same powers as the inspectors appointed by the board of trade under the First Part of this Act ; but every such inspector, if required by timely notice in writing from the master, owner or consignee, shall make his inspection three days at least before the ship proceeds to sea, and if the result of the inspection is satisfactory shall not again make inspection before the com- mencement of the voyage, unless he has reason to suspect that some of the articles inspected have been subsequently removed, injured or destroyed; and whenever any such medical inspector is of opinion that in any ship hereby required to carry such articles as aforesaid the same or any of them are deficient in quantity or quality, or are placed in improper vessels, he shall signify the same iii writing to the chief officer of customs of the port where such ship is lying, and also to the master, owner or consignee thereof, and thereupon the master of such ship, before proceeding to sea, shall produce to such chief officer of customs a certificate under the hand of such medical inspector or of some other medical inspector, to the effect that such deficiency has been supplied or remedied, or that such improper vessels have been replaced by proper vessels, as the case may require ; and audi chief officer of Merchant Shipping Act. 873 oustoms shall not grant a clearance for Buch ship without the production of m. Provisions, such certificate, and if such ship attempts to go to eea without a clearance, Bmlth and Ac- may detain her until such certificate is produced ; and if such ship proceeds '"""'°'''"'°"' to sea without the production of such certificate, the owner, master or consignee thereof shall incur a penalty not exceediiig twenty pounds. CCXXVTI. Repealed, 30 & 31 Vict. o. 124, s. 3. CCXXVIII. The following rules shall be observed with respect to expenses Expense of attendant on illness and death ; (that is to say,) medical aUend- (1.) If the master or any seaman or apprentice receives any hurt or injury ^^li^^n^e in the service of the ship to which he belongs, the expense of pro- in oases of Tiding the necessary surgical and medical advice, with attendance illness, and of and medicines, and of his subsistence until he is cured, or dies, or S^lj* ? "^^ ?' is brought back to some port in the United Kingdom, if shipped in dlfrayed!^ the United Kingdom, or if shipped in some British possession to some port in such possession, and of his conveyance to such port, and the expense (if any) of his burial, shall be defrayed by the owner of such ship, without any deduction on that account from the wages of such master, seaman or apprentice : (2.) If the master or any seaman or apprentice is on account of any illness temporarily removed from his ship for the purpose of preventing infection, or otherwise for the convenience of the ship, and sub- sequently returns to his duty, the expense of such removal and of providing the necessary advice vrith attendance and medicines and of his subsistence whilst away from the ship, shall be defrayed in like manner : (3.) The expense of all medicines and surgical or medical advice and attendance given to any master, seaman or apprentice whilst on board his ship shall be defrayed in like manner : (4.) In all other cases any reasonable expenses duly incurred by the owner for any seaman in respect of illness, and also any reasonable expenses duly incurred by the owner in respect of the burial of any seaman or apprentice who dies whilst on service, shall if duly proved, be deducted from the wages of such seaman or apprentice. COXXIX. If any such expenses in respect of the Uluess, injury or hurt of Bxpeneca, if any seaman or apprentice, as are to be borne by the owner, are paid by any P^'d by consul, consular ofBcer or other person on behalf of her Majesty, or & any other foom ownir*^^^ expenses in respect of the illness, injury or hurt of any seaman or apprentice whose wages are not accounted for to such officer under the provisions here- inbefore contained in that behalf are so paid, such expenses shall be repaid to such officer or other person by the master of the ship, and if not so repaid, the amount thereof, with costs, shall be a charge upon the ship, and be recoverable from the said master or from the owner of the ship for the time being as a debt due to her Majesty, and shall be recoverable either by ordinary process of law or in the manner in which seamen are hereby enabled to recover wages : and in any proceeding for the recovery thereof the produc- tion of a certificate of the facts, signed by such officer or other person, together with such vouchers (if any) as the case requires, shall be sudGficient proof that the said expenses were duly paid by such consular officer or other person as aforesaid. CCXXX. Every foreign-going ship having one hundred persons or Certain ships to upwards on board shall carry on board as part of her complement some carry medical person duly authorized by law to practise as physician, surgeon or apothe- Pra'^t't'oners. oary ; and in default the owner shall for every voyage of any such ship made without such medical practitioner incur a penalty not exceeding one hundred pounds : provided that nothing herein contained shall in anywise affect any provision contained in the "Passengers Act, 1852 " («), concerning the carriage of medical practitioners by the class of ships therein named passenger ships, nor shall any such passenger ship, if not thereby required to carry a medical practitioner, be hereby required to do so. CCXXXI. Eepealed, 30 & 31 Vict. o. 124, s. 3. (e) Repealed by Passengers Act, 1865, 18 & 19 Vict. c. 119. 874 17 & 18 Vict. cap. 104. m. Power of maMng Complaint, Seamen to be allowed to go ashore to make complaint to a justice. Fewer of making Complaint. CCXXXII. If any seaman or apprentice wMst on board any ship states to tte master that he desires to mate complaint to a instioe of the peace or consular officer, or naval officer in command of any of her Majesty's ships, against the master or any of the crew, the said master shall, if the ship is then at a place where there is a justice or any such officer as aforesaid, as soon as the service of the ship wiU permit, and if the ship is not then at such a place, so soon after her arrival at such a place as the service of the ship ■will permit, allow such seaman or apprentice to go ashore or send him ashore in proper custody so that he may be enabled to make such complaint, and shall, iu default, incur a penalty not exceeding ten pounds. Protection of Beamffn from Imposition. Sale of and charge upon wages to be invalid. No debt exceed- ing 5s. recover- able till end of voyage. Penalty for over- charg:ea by lodging-house keepers. Penalty for detaining sea- men's effects. Persons not to go on board before the final arrival of ship without permission. Penalty for soliciting by lodging-house keepers. Protection of Seamen from Imposition. CCXXXIII. No -wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court ; and every payment of -wages to a seamen or apprentice shall be valid in la-w, notwithstanding any previous sale or assignment of such wages, or of any attachment, in- cumbrance or arrestment thereon ; and no assignment or sale of such wages or of salvage made prior to the accruing thereof shall bind the party making the same ; and no power of attorney or authority for the receipt of amy such wages or salvage shall be irrevocable. coy XXIV. No debt exceeding in amount five shillings, incurred by any seaman after he has engaged to serve, shall be recoverable until the service agreed for is concluded. CCXXXV. If any person demands or receives from any seaman or ap- prentice to the sea service payment in respect of his board or lodging iu the house of such person for a longer period than such seaman or apprentice has actually resided or boarded therein, he shall incur a penalty not exceeding ten pounds. CCXXXYI. If any person receives or takes into his possession or under his control any moneys, documents or effects of any seaman or apprentice to the sea service, and does not return the same or pay the value thereof, when required by such seaman or apprentice, subject to such deduction as may be justly due to him from such seaman or apprentice in respect of board or lodging or otherwise, or absconds therewith, he shall incur a penalty not exceeding ten pounds, and any two justices may, besides inflicting such penalty, by summary order direct the amount or value of such moneys, documents or effects, subject to such deduction as aforesaid, to be forthwith paid to such seaman or apprentice. CCXXXVII. Every person who, not being in her Majesty's service, and not being duly authorized by law for the purpose, goes on board any ship about to arrive at the place of her destination (/), before her actual arrival in dock or at the place of her discharge, without the pennission of the master, shall for every such offence incur a penalty not exceeding twenty pounds ; and the master or person in charge of such ship may take any such person so going on board as aforesaid into custody, and deliver him up forth- -with to any constable or peace officer, to be by biTn taken before a justice or justices or the sheriff of the county in Scotland, and to be dealt -with accord- ing to the provisions of this Act. CC XXX VIII. If, within twenty-four hours after the arrival of any ship at any port in the United Kingdom, any person then being on board such ship solicits any seaman to become a lodger at the house of any person letting lodgings for hie, or takes out of such ship any effects of any seaman, except under his personal direction and -with the pennission of the master, he shall for every such offence incur a penalty not exceeding five pounds. Biacipline. Misconduct endangBring ship or life or Discipline. CC XXXTX . Any master of or any seaman or apprentice belonging to any British ship who by -wUful breach of duty, or by neglect of duty, or by reason of drunkenness, docs any act tending to the immediate loss, destruc- (/) See 43 & 44 Vict. o. 16, s. 5 ; Atwood v. Cwoe, L. R. 1 Q. B. D. 134. Merchant Shipping Act, 875 tion, or serious damage of suoli ship, or tending immediately to endanger m. SUcipUm. the life or limb of any person belonging to or on board of such ship, or who j^^ almis- by wilful breach of duty, or by neglect of duty, or by reason of drunkenness, demeanor, refuses or omits to do any lawful act proper and requisite to be done by him for preserving such ship from immediate loss, destruction, or serious damage, or for preserving any person belonging to or on board of such ship from immediate danger to life or limb, shall for every such offence be deemed guilty of a misdemeanor {g) . COXL. Any court having admiralty jurisdiction in any of her Majesty's Power of admi- dominions may, upon appUoation by the owner of any ship being within the Jj"y 0°™** to jurisdiction of such court, or by the part owner or consignee, or by the agent ™ ^^ ™°* ' of the owner, or by any certificated mate, or by one third or more of the crew of such ship, and upon proof on oath to the satisfaction of such court that the removal of the master of such ship is necessary, remove him accord- ingly ; and may also, with the consent of the owner or his agent, or the consignee of the ship, or if there is no owner or agent of the owner or con- signee of the ship within the jurisdiction of the court, then without such consent, appoint a new master in his stead ; and may also make such order, and may require such security in respect of costs in the matter, as it thinks fit. OOXLI. If the board of trade or any local marine board has reason to J°^^ *" mvM- believe that any master or mate is from incompetency or misconduct unfit to ^f»|di^™^_ discharge his duties, the board of trade may either institute an investigation potency and or may direct the local marine board at or nearest to the place at which it misconduct (A). may be convenient for the parties and witnesses to attend to institute the same, and thereupon such persons as the board of trade may appoint for the purpose, or, as the case may be, the local marine board, shall, with the assist- ance of a local stipendiary magistrate (if any), and if there is no such magis- trate, of a competent legal assistant to be appointed by the board of trade, conduct the investigation, and may summon the master or mate to appear, and shall give him full opportunity of making a defence either in person or otherwise, and shall for the purpose of such investigation have all the powers given by the first part of this Act to inspectors appointed by the board of trade, and may make such order with respect to the costs of such investiga- tion as they may deem just ; and shall on the conclusion of the investigation make a report upon the case to the board of trade ; and in cases where there is no local marine board before which the parties and witnesses can conve- niently attend, or where such local marine board is unwQling to institute the investigation, the board of trade may direct the same to be instituted before two justices or a stipendiary magistrate ; and thereupon such investigation shall be conducted, and the results thereof reported, in the same manner and with the same powers in and with which formal investigations into wrecks and casualties are directed to be conducted, and the results thereof reported, under the provisions contained in the Eighth Part of this Act, save only that, if the board of trade so directs, the person bringing the charge of incom- petency or misconduct to the notice of the board of trade shall be deemed to be the party having the conduct of the case. OCXIjII. The board of trade may suspend or cancel the certificate (whe- Board of trade ther of competency or service) of any master or mate in the following oases ; ^^d rerSfl- (that is to say,) oate in certain (1.) If upon any investigation made in pursuance of the last preceding cases (i). section, he is reported to be incompetent, or to have been guilty of any gross act of misconduct, drunkenness or tyranny : (2.) If upon any investigation conducted under the provisions contained in the Eighth Part of this Act, or upon any investigation made by a naval court constituted as hereinafter mentioned, it is reported that the loss or abandonment of or serious damage to any ship or loss of life has been caused by his wrongful act or default : (3.) If he is superseded by the order of any admiralty court or of any naval court constituted as hereinafter mentioned : (4.) If he is shown to have been convicted of any oflence : (6.) If upon any investigation made by any court or tribunal authorized {g) 43 & 44 Vict. o. 16, ». 10, infra. . (i) 25 & 26 Vict. o. 63, s. 23, and (A) 25 & 26 Vict. o. 63, s. 11, infra. 39 & 40 Vict. c. 80, s. 29, infra. 876 17 & 18 Vict. cap. 104. XQ. Discipline, Offences of sea- men and appren- tices and their p-anishmentB. Desertion : Ne^lectin^ orre- fusmg to join, or to proceed to sea, absence ■within twenty- four hours be- fore sailing-, and absence "without leave: Quitting with- out leave before ship is secured : Act of dis- obedience : Continued disobedience : Assault on ofi^cers : Combining to disobey : or hereafter to be authorized by the legislative authority in any British possession to make inquiry into charges of inoompetenoy or misconduct, on the part of masters or mates of ships, or as to ship- wrecks or other casualties affecting ships, a report is made by such court or tribunal to the effect that he has been guilty of any gross act of misconduct, drunkenness or tyranny, or that the loss or aban- donment of or serious damage to any sMp or loss of life has been caused by his wrongful act or default [and such report is confirmed by the governor or person administering the government of such possession] [k] : And every master or mate whose certificate is cancelled or suspended shall deliver it to the board of trade or as it directs, and in default shall for each offence incur a penalty not exceeding fifty pounds ; and the board of trade may at any subsequent time grant to any person whose certificate has been cancelled a new certificate of the same or of any lower grade. CCXLIII. Whenever any seaman who has been lawfully engaged or any apprentice to the sea service commits any of the following offences he shall be liable to be punished summarily as follows (that is to say) : (1 .) For desertion he shall be liable [to imprisonment for any period not ex- ceeding twelve weeks, with or without hard labour, and also] [1) forfeit all or any part of the clothes and effects he leaves on board, and all or any part of the wages or emoluments which he has then earned, and also, if such desertion takes place abroad, at the discre- tion of the court, to forfeit aU or any part of the wages or emolu- ments he may earn in any other ship in which he may be employed until his next return to the United Kingdom, and to satisfy any excess of wages paid by the master or owner of the ship from which he deserts to any substitute engaged in his place at a higher rate of wages than the rate stipulated to be paid to him : (2.) For neglecting or refusiag, without reasonable cause (m), to join his ship, or to proceed to sea in his ship, or for absence without leave at any time within twenty-four hours of the ship's sailing from any port either at the coromencement or during tiie progress of any voyage, or for absence at any time without leave and without sufB- cient reason from his ship or from his duty not amounting to deser- tion or not treated as such by the master, he shall be liable [to imprisonment for any period not exceeding ten weeks, with or without hard labour, and also] {1} at the discretion of the court, to forfeit out of his wages a sum not exceeding the amount of two days' pay, and in addition for every twenty-four hours of absence either a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute : (3.) !For quitting the ship without leave after arrival at her port of delivery and before she is placed in security, he shall be Uable to forfeit out of his wages a sum not exceeding one month's pay : (4.) For wilful disobedience to any lawful command he shall be liable to imjodsonment for any period not exceeding ipxa weeks, with or without hard labour, and also, at the discretion of the court, to forfeit out of his wages a sum not exceeding two days' pay : (5.) For continued wilful disobedience to lawful commands, or continued wilful neglect of duty, he shall be liable to imprisonment for any period not exceeding twelve weeks, with or without hard labour, and also, at the discretion of the court, to forfeit for every twenty-four hours' continuance of such disobedience or neglect either a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute : (6.) For assaulting any master or mate he shall be liable to imprisoment . for any period not exceeding twelve weeks, with or without hard labour : (7.) For combining with any other or others of the crew to disobey lawful commands, or to neglect duty, or to impede the navigation of the (A) The words within brackets are repealed by 45 & 46 Vict. o. 76, s. 7. (J) The words within braoketB re- pealed by 43 & 44 Vict. o. 16, s. 12. (m) See 34 & 35 Vict. c. 110, BS. 7 and 8, injra. MsBCHANT Shipping Act. 877 ship or the progress of the Toyagre, he shall he liahle to imprison- HI. DUdpUnt. meut for any period not exceeding twelve weeks, with or without hard labour : (8.) For wilfully damaging the ship, or embezzling or wilfully damaging Wilful damage any of her stores or cargo, he shall be liable to forfeit out of his *°* embezzle- wages a sum equal in amount to the loss thereby sustained, and also, ""^ ' at the discretion of the court, to imprisonment for any period not exceeding twelve weeks, with or without hard labour : (9.) For any act of smuggling of -which he is convicted, and whereby loss Acta of or damage is occasioned to the master or owner, he shall be hable to ^|^~ ?£„ t» pay to such master or owner such a sum as is sufficient to reimbvirse owner, the master or owner for such loss or damage ; and the whole or a proportionate part of his wages may be retained in satisfaction or on account of such liability, without prejudice to any further remedy. CCXLIV. Ijpon the commission of any of the offences enumerated in the Entry of offences last preceding section an entry thereof shall be made in the official log-book, *° •>? made in and shall be signed by the master and also by the mate or one of the crew ; °g be^rei^oTer and the offender, if still in the ship, shall before the next subsequent arrival or a copy given of the ship at any port, or if she is at the time in port, before her departure to the oitender, therefrom, either be furnished with a copy of such entry or have the same jf any'to be^' read over distinctly and audibly to him, and may thereupon make such reply also entered, thereto as he thinks fit ; and a statement that a copy of the said entry has been so furnished, or that the same has been so read over as aforesaid, and the reply (if any) made by the offender, shall likewise be entered and signed in manner aforesaid ; and in any subsequent legal proceedings the entries hereinbefore required shall, if practicable, be produced or proved, and in default of such production or proof the court hearing the case may, at its disoretion, refuse to receive evidence of the offence. OCXL V . Every seafaring person whom the master of any ship is, under Seamen whom the authority of this Act or of any other Act of Parliament, compelled to maetera of ships take on board and convey, and every person who goes to sea in any ship ^TCy" Midpra> without the consent of the master or owner or other person entitled to give sons going in such consent, shall, so long as he remains in such ship, be subject to the ships without same laws and regulations for preserving discipline, and to the same penalties ^^^Y\ *" ^ ?J^" and punishments for offences constituting or tending to a breach of discipline, for breach of ^^ to wliioh he would be subject if he were a member of the crew and had discipline, signed the agreement. CCXLVI. Repealed by 43 & 44 Vict. c. 16, s. 12. OCXL VII. Whenever any seaman or apprentice is brought before any Deserters may court on the ground of his having neglected or refused to join or to proceed be sent on board to sea in any ship in which he is engaged to serve, or of having deserted or ij^w°i^- otherwise absented himself therefrom without leave, such court may, if the prisoned, master or the owner or his agent so requires [instead of committing the offender to prison] (»), cause hun to be conveyed on board for the purpose of proceeding on the voyage, or deliver him to the master or any mate of the ship, or the owner or his agent, to be by them so conveyed, and may in such case order any costs and expenses properly incurred by or on behalf of the master or owner by reason of the offence to be paid by the offender, and, if necessary, to be deducted from any wages which he has then earned, or which by virtue of his then existing engagement he may afterwards earn. COXLVIII. Repealed by 43 & 44 Vict. o. 16, s. 12. CCXLIX. In all cases of desertion from any ship in any place abroad the Entries and cer- master shall produce the entry of such desertion in the official log-book to the tiflcatesof deser- person or persons hereby required to indorse on the agreement a certificate of ?°'' abroad to such desertion ; and such person or persons shall thereupon make and certify hon^^Mid^S- a copy of such entry and also a copy of the said certificate of desertion ; and mitted in eyi- if sucii person is a public functionary he shall, and in other cases the said denoe. master shall forthwith transmit such copies to the registrar- general of sea- men in England (o) ; and the said registrar shall, if required, cause the same to be produced in any legal proceeding ; and such copies, if purporting to be so made and certified as aforesaid, and certified to have come from the custody («) See 43 & 44 Viot. o. 16, s. 10, (o) Now called Registrar- General inf7-a. of Shipping and Seamen: 35 & 36 Vict. c. 73, a. 4, infra. 878 17 & 18 Vict. cap. 104. HI- DisciplineM Facilities for proTiDg deser- tion, so far as concerns for- feiture of "wageB. Costs of pro- curing imprison- ment may to tlie extent of 32. be deducted from Amount of forfeiture how to be ascertained ■when seamen contract for the Toyage. Application of foneitures. Questions of forfeitures may be decided in suits for wages. Penalty for false statement as to last ship or name. Pines to be deducted from wages, and paid to shipping masted. of the said registrar, shall in any legal proceeding relating to such desertion be received as eridenoe of the entries therein appearing. CCL. Whenever a question arises whether the wages of any seaman or apprentice are forfeited for desertion, it shall be sufficient for the party in- sisting on the forfeiture to show that such seaman or apprentice was duly engaged in or that he belonged to the ship from which he is alleged to have deserted, and that he quitted such ship before the completion of the voyage or engagement, or if such voyage was to terminate in the United Kingdom and the ship has not returned, that he is absent from her, and that an entry of the desertion has been duly made in the official log-book ; and thereupon the desertion shall, so far as relates to any forfeiture of wages or emoluments under the provisions hereinbefore contained, be deemed to be proved, unless the seaman or apprentice can produce a proper certificate of discharge, or can otherwise show to the satisfaction of the court that he had sufficient reasons for leaving his ship. CCLI. Whenever in any proceeding relating to seamen's wages it is shown that any seaman or apprentice has in the course of the voyage been convicted of any offence by any competent tribunal and rightfully punished therefor by imprisonment or otherwise, the court hearing the case may direct a part of the wages due to such seaman, not exceeding three pounds, to be apphed in reimbursing any costs properly incurred by the master in procuring such conviction and punishment. CCLII. Whenever any seaman contracts for wages by the voyage or by the run or by the share and not by the month or other stated period of time, the amount of forfeiture to be incurred under this Act shall be taken to be an amount bearing the same proportion to the whole wages or share as a calendar month or other the period hereinbefore mentioned in fixing the amount of such forfeiture (as the case may be) bears to the whole time spent in the voyage ; and if the whole time spent in the voyage does not exceed the period for which the pay is to he forfeited, the forfeit shall extend to the whole wages or share. CCLIII. All clothes, effects, wages and emoluments which under the provisions hereinbefore contained are forfeited for desertion shall be applied in the first instance in or towards the reimbursement of the expenses occa- sioned by such desertion to the master or owner of the ship from which the desertion has taken place ; and may, if earned subsequently to the desertion, be recovered by such master, or by the owner or his agent, in the same man- ner as the deserter might have recovered the same if they had not been forfeited ; and in any legal proceeding relating to such wages the court may order the same to be paid accordingly ; and subject to such reimbursements the same shall-be paid into the receipt of her Majesty's exchequer in such manner as the treasury may direct, and shall be carried to and form part of the consolidated fund of the United Kingdom ; and in all other cases of for- feiture of wages under the provisions hereinbefore contained the forfeiture shall, in the absence of any specific directions to the contrary, be for the benefit of the master or owner by whom the wages are payable. CCLIV. Any question concerning the forfeiture of or deductions from the wages of any seaman or apprentice may be determined in any proceeding lawfully instituted with respect to such wages, notwithstan&ig that the offence in respect of which such question arises, though hereby made punish- able by imprisonment as well as forfeiture, has not been made the subject of any criminal proceeding. CCLV. If any seaman on or before being engaged wilfully and fraudulently makes a false statement of the name of his last ship or last alleged ship, or wilfully and fraudulently makes a false statement of his own name, he shall incur a penalty not exceeding five pounds ; and such penalty may be deducted from any wages he may earn by virtue of such engagement as aforesaid, and shall, subj ect to reimbursement of the loss and expenses (if any) occasioned by any previous deseition, be paid and applied in the same manner as other penalties payable under this Act. CCLVI. Whenever any seaman commits an act of misconduct for which his agreement imposes a fine, and which it is intended to punish by enforcing such fine, an entry thereof shall be made in the official log-book, and a copy of such entry shall be furnished or the same shall be read over to the offender, and an entry of such reading over, and of the reply (if any) made by the offender, shall be made, in the manner and subject to the conditions Mehchant Shipping Act. 879 hereinbefore specified with respect to the offences against discipline specified m. Pitdpline. in and punishable under this Act ; and such fine shall be deducted and paid over as follows, (that is to say,) if the offender is discharged in the United Elingdom, and the offence and such entries in respect thereof as aforesaid are proved, in the case of a foreign-going ship to the satisfaction of the shipping master before whom the offender is discharged, and in the case of a home trade ship to the satisfaction of the shipping master at or nearest to the place at which the crew is discharged, the master or owner shall deduct such fine from the wages of the offender, and pay the same over to such shipping master ; and if before the final discharge of the crew in the United Kingdom any such offender as aforesaid enters into any of her Majesty's ships, or is discharged abroad, and the offence and such entries as aforesaid are proved to the satisfaction of the officer in command of the ship into which he so enters, or of the consular officer, officer of customs, or other person by whose sanction he is so discharged, the fine shall thereupon be deducted as afore- said, and an entry of such deduction shall then be made in the official log book (if any) and signed by such officer or other person ; and on the return of the ship to the United Kingdom the master or owner shall pay over such fine, in the caae of foreign -going ships, to the shipping master before whom the crew is discharged, and in the case of home trade ships to the shipping master at or nearest to the place at which the crew is discharged ; and if any master or owner neglects or refuses to pay over any such fine in manner aforesaid, he shall for each such offence inour a penalty not exceeding six times the amount of the fine retained by him : provided that no act or misconduct for which any such fine as aforesaid has been inflicted and paid shall be otherwise punished under the provisions of this Act. CCLVII. Every person who by any means whatever persuades or attempts Penalty for to persuade any seaman or apprentice to neglect or refuse to join or to pro- enticing- to ceed to sea in or to desert from his ship, or otherwise to absent himself from h^touSs his duty, shall for each such offence in respect of each such seaman or desertMSN apprentice incur a penalty not exceeding ten pounds ; and every person who T^ully harbours or secretes any seaman or apprentice who haa deserted from his ship, or who has wilfully neglected or refused to join, or has deserted from his ship, knowing or having reason to believe such seaman or apprentice to have so done, shall for every such seaman or apprentice so harboured or secreted incur a penalty not exceeding twenty pounds. CCLVIII. Any person who secretes himself and goes to sea in any ship Penalty for without the consent of either the owner, consignee or master, or of a mate or obtaining paa- of any person in charge of such ship, or of any other person entitled to give ??S^ surrepti- suoh consent, shall incur a penalty not exceeding twenty pounds, or be liable ^""^ ^' to imprisonment with or without hard labour, for any period not exceeding four weeks [p) . CCLIX. If during the progress of a voyage the master is superseded or for On change of any other reason quits the ship and is succeeded in command by some other masters, doou- person, he shall deliver to his successor the various documents relating to the ^Q^e^'^^be navigation of the ship and to the crew thereof which are in his custody, and i^ded over to shall in default incur a penalty not exceeding one hundred pounds ; and such BueceBsor. successor shall immediately, on assuming the command of the ship, enter in the official log a list of the documents so delivered to him. Naval Courts on the Sigh Seas and Abroad. Naval Courts, CCLX. Any officer in command of any ship of her Majesty on any foreign Naval courtB station, or, in the absence of such officer, any consular officer, may summon "■*? ^/'"^" a court, to be termed a "Naval Court," in the following cases (that is to Sgrompfainto'^ say) : and investi- ( 1 .) Whenever a complaint which appears to such officer to require imme- Rating wrecks diate investigation is made to him by the master of any British ship, or abro^^ ^^°* or by any certificated mate, or by one or more of the seamen belong- ing to any such ship : (2.) Whenever the interest of the owner of any British ship or of the cargo of any such ship appears to such officer to require it : (p) As to persons secreting themselves on passenger vessels, 18 & 19 Vict. 0. 119, 8. 18. 880 17 & 18 YicT. CAP. 104. m. Naval Courts. Constitution of Buch courtB. General func- tions and mode of action of such courte. Po-wers of such courts; To supersede the master : To discharge a seaman: To forfeit To decide dis- putes as to ■wages, &c. : To direct costs of imprison- ment to be paid out of wages : To send home oifenders for trial: To order pay- ment of costs, Orders to be entered in ofi&cial log. Beport to be maae of pro- ceedings of naval courts. (3.) Wienever any British ship is wrecked or abandoned or otherwise lost at or near ttie place where such officer may be, or whenever the crew or part of the crew of any British eihip which has been wrecked, abandoned, or lost abroad, arrives at such place. GCLXI. Every such naval court as aforesaid shall consist of not more than five and not less than three members, of whom, if possible, one shall be an officer in the naval service of her Majesty not below the rank of lieutenant, one a consular officer, and one a master of a British merchant ship, and the rest shall be either officers in the naval service of her Majesty, masters of British merchant ships or Britidi merchants ; and such court may include the naval consular officer summoning the same, but shall not include the master or consignee of the ship to which the parties complaining or complained against may belong ; and the naval or consular officer in such court, rf there is only one such officer in the court, or if there is more than one, the naval or consular officer who, according to any regulations for settling their respec- tive ranks for the time being in force, is of the highest rank, shall be presi- dent of such court ( j) . CCLXII. Every such naval court shall hear and investigate the complaint brought before it, or the cause of the wreck or abandonment (as the case may be), and may for that purpose summon and compel the attendance of parties and witnesses, and administer oaths, and order the production of documents, and shall conduct the investigation in such manner as to give any person against whom any charge is made an opportunity of making a defence. CCLXIII. Every su^ naval court may, after hearing the case, exercise the following powers ; (that is to say,) (1.) It may, if unanimous that the safety of the ship or crew, or the interest of the owner, absolutely requires it, supersede the master, and may appoint another person to act in his stead ; but no such appointment shall be made without the consent of the consignee of the ship, if then at the place : (2.) It may discharge any seaman from his ship : (3.) It may order the wages of any seaman so discharged or any part of such wages to be forfeited, and may direct the same either to be retained by way of compensation to the owner, or to be paid into the receipt of her Majesty's exchequer in the same manner as other penalties and forfeitures under this Act : It may decide any questions as to wages, or fines, or forfeitures, arising between any of the parties to the proceedings : It may direct that all or any of the costs incurred by the master or owner of any ship in procuring the imprisonment of any seaman or apprentice in a foreign port, or in his maintenance whilst so im- prisoned, shall be paid out of and deducted from the wages of such seaman or apprentice, whether then or subsequently earned : (6.) It may exercise the same powers with regard to persons charged before it with the commission of ofiences at sea or aboaid as are by this Act given to British consular officers : (7.) It may order the costs of the proceeding before it (if any), or any portion thereof, to be paid by any of the parties thereto, and may order any person making a frivolous or vexatious complaint to pay compensation for any loss or delay caused thereby ; and any cost or compensation so ordered shall be paid by such person accordingly, and may be recovered in the same manner in which the wages of seamen are recoverable, or may, if the case admits, be deducted from his wages : And all orders duly made by any such court under the powers hereby given to it shall in any subsequent legal proceedings be deemed conclusive as to the rights of the parties. CCLXIV. All orders made by any such naval court shall, whenever prac- ticable, be entered in the official log-book of the ship to which the parties to the proceedings before it belong, and shall be signed by the president of the coiirt. CCLXV. Every such naval court shall make a report to the board of trade, containing the following particulars ; (that is to say,) (j) See sect. 8 of 35 & 36 Vict. c. 73, infra. (4-) (6.) Merchant Shipping Act. 881 (1.) A statement of the proceedings, with the order made by the oojirfc, and m. Naval a report of the evidence : '^^■ (2.) An account of the wages of any seaman or apprentice who is dis- charged from his ship by such conrt : (3.) If summoned in order to inquire into a case of wreck or abandonment, a statement of the opinion of the court as to the cause of such wreck or abandonment, with such remarks on the conduct of the master and crew as the circumstances require : And every such report shall be signed by the president of the court ; and every document purporting to be such a report and to be so signed as afore- said shall, if produced out of the custody of some officer of the board of trade, be deemed to be such report, unless the contrary be proved, and shall be received in evidence subject to all just exceptions. COLXVI. Any person who wmully and without due cause prevents or Penalty for pro- obstructs the making of any such complaint as last aforesaid, or the conduct venting com- of any case or investigation by any naval court, shall for each such offence ?^^5a„„ incur a penalty not exceeding fifty pounds, or be liable to imprisonment with jnyestigation. or without hard labour for any period not exceeding twelve weeks. Crimes committed on the Sigh Seas and Abroad. Orimes commiued Abroad, CCLXVII. AU offences against property or person committed in or at any place either ashore or afloat out of her Majesty's dominions by any master, *-*?!''S^ °''™" seaman or apprentice who at the time when the offence is committed is or Bjjtigji seamen within three months previously has been employed in any British ship shall at f orei^ ports be deemed to be offences of the same nature respectively, and be liable to the to he within same punishments respectively, and be inquired of, heard, tried, determined j^^^*ij,n and adjudged in the same manner and by the same courts and in the same places as if such offences had been committed within the jurisdiction of the admiralty of England ; and the costs and expenses of the prosecution of any such offence may be directed to be paid as in the case of costs and expenses of prosecutions for offences committed within the jurisdiction of the admiralty of England. CCL XVIII. The following rules shall be observed with respect to offences Conveyance of committed on the high seas or abroad (that is to say) : ^taeraS to '* (1.) Whenever any complaint is made to any British consular of&cer of any tTnited Eing- of the offences mentioned in the last preceding section ; or of any domorBome offence on the high seas having been committed by any master, British seaman or apprentice belonging to any British ship, such consular """"""' officer may inquire into the case upon oath, and may, if the case so requires, take any steps in his power for the purpose of placing the offender under necessary restraint, and of sending him ae soon as practicable in safe custody to the United Kingdom, or to any British possession in which there is a court capable of taking cognisance of the offence, in any ship belonging to her Majesty or to any of her subjects, to be there proceeded against according to law : (2.) For the purpose aforesaid such consular officer may order the master of any ship belonging to any subject of her Majesty bound to the United Kingdom, or to such British possession as aforesaid, to receive and afford a passage and subsistence during the voyage to any such offender as aforesaid, and to the witnesses, so that such master be not required to receive more than one offender for every one hundred tons of his ship's registered tonnage, or more than one witness for every fifty tons of such tonnage; and such consular officer shaJl indorse upon the agreement of the ship such particulars with respect to.any offenders or witnesses sent in her as the board of trade requires : (3.) Every such master shall on his ship's arrival in the United Kingdom, or in such British possession as aforesaid, give every offender so committed to his chaxge into the custody of some police officer or constable, who shall take the offender before a justice of the peace or other magistrate by law empowered to deal with the matter, and such justice or magistrate shall deal with the matter as in cases of offences committed upon the high seas. And any such master as aforesaid who, when required by any British con- Bulax officer to receive and afford a passage and subsistence to any offender 882 17 & 18 YicT. CAP. 104. 1 1 1. Crimea com^ mitted Abroad, Inquiry into cause of death on board. Depositions to be received in evidence when witness cannot be produced. Hegistration and HetumB respect- ing Seamen. Establishment of register office. or witness, does not receive him and afford such passage and subsistence to him, or who does not deliver any offender oonmiitted to his charge into the custody of some police officer or constable as hereinbefore directed, shall for each such offence incur a penalty not exceeding fifty pounds, [and the ex- pense of imprisoning any such offender and of conveying him and the wit- nesses to the United Kingdom or to such British possession as aforesaid in any manner other than in the ship to which they respectively belong, shaU be part of the costs of the prosecution, or be paid as costs incurred on account of seafaring subjects of her Majesty left in distress in foreign parts (r).] CCLXIX. Whenever any case of death happens on board any foreign- going ship, the shipping master shall on the arrival of such ship at the port where the crew is discharged inquire into the cause of such deatii, and shall make on the list of the crew deHvered to him as herein required an indorse- ment to the effect either that the statement of the cause of death therein contained is in his opinion true or otherwise, as the result of the inquiry requires ; and every such shipping master shall for the purpose of such in- quiry have the powers hereby given to inspectors appointed by the board of trade under the first part of this Act ; and if in the course of such inquiry it appears to him that any such death as aforesaid has been caused by violence or other improper means, he shall either report the matter to the board of trade, or, if the emergency of the case so require, shall take immediate steps for bringing the offender or offenders to justice. CCLXX, Whenever in the course of any legal proceedings instituted in any part of her Majesty's dominions before any judge or magistrate, or before any person authorized by law or by consent of parties to receive evidence, the testimony of any witness is required in relation to the subject- matter of such proceeding, then upon due proof, if such proceeding is insti- tuted in the United Kingdom, that such witness cannot be found in that kingdom, or if in any British possession, that he cannot be found in the same possession, any deposition that such witness may have previously made on oath in relation to the same subject-matter before any justice or magistrate in her Majesty's dominions, or any British consular officer elsewhere, shall be admissible in evidence, subject to the following restrictions ; (that is to say,) (1,) If such deposition was made in the United Kingdom, it shall not be admissible in any proceeding instituted in the United Kingdom : (2.) If such a deposition was made in any British possession, it shall not be admissible in any proceeding instituted in the same British pos- session : (3.) If the proceeding is criminal it shall not be admissible, unless it was made in the presence of the person accused': Every deposition so made as aforesaid shall be authenticated by the signature of the judge, magistrate or consular officer before whom the same is made ; and such judge, magistrate or consular officer shall, when the same is taken in a criminal matter, certify if the fact is so, and that the accused was pre- sent at the taking thereof, but it shall not be necessary in any case to prove the> signature or official character of the person appearing to have signed any such deposition ; and in any criminal proceeding such certificate as aforesaid shall, unless the. contrary is proved, be sufficient evidence of the accused having been present in manner thereby certified ; but nothing herein con- tained shall affect any case in which depositions taken in any proceeding are rendered admissible in evidence by any Act of Parliament, or by any Act or ordinance of the legislature of any colony, so far as regards such colony, or to interfere with the power of any colonial legislature to make such depo- sitions admissible in evidence, or to interfere with the practice of any court in which depositions not authenticated as hereinbefore mentioned are ad- missible. Registration of and Returns respecting Seamen. CCLXXI. There shall be in the port of London an office, to be called the "General Register and Record Office of Seamen," and the board of trade shall have control over the same, and may appoint and from time to time remove a registrar-general, and such assistants, clerks and servants as (»•) Words within brackets repealed by 46 & 46 Vict. u. 65, a. 10. Merchant Shipping Act. 883 may be necessary, and may from time to time, with the consent of the ni. Itegisiration treasury, regulate their salaries and allowances : and such salaries and allow- '""' neturns re- ances, and all other necessary expenses, shall be paid by the treasury out of 'J'^°" ''y Se amen. any monies to be granted by ParHament for that purpose ; and the board of trade may direct the business of the register office at any of the outports to bo transacted at the shipping office, or with the consent of the commissioners of customs at the custom house of the port, and may appoint the shipping master, or with such consent as aforesaid some officer of customs to conduct the same ; and such business shall thereupon be conducted accordingly, but shall in all cases be subject to the immediate control of the board of trade. CCLXXII. The said registrar-general of seamen shall by means of the Esgister of agreements, lists and other papers to be transmitted to him as herein directed, seamen to be or by such other means as are in his power, keep a register of all persons ''^P'" who serve in ships subject to the provisions of this Act. CCLXXIII. Every master of every foreign-going ship of which the List* to be made crew is discharged in the United Kingdom, in whatever part of her Majesty's '™ ?■'? *J"P^ dominions the same is registered, and of every home trade ship, shall make ^SS""^ out and sign a list in a form sanctioned by the board of trade, containing the particulars, following particulars ; (that is to say,) (1.) The number and date of the ship's register and her registered tonnage: (2.) The length and general nature of the voyage or employment : (3.) The christian names, surnames, ages and places of birth of all the crew, including the master and apprentices ; their qualities on board, their last ships or other employments, and the dates and places of their joining the ship : (4.) The names of any members of the crew who have died or otherwise ceased to belong to the ship, with the times, places, causes and circumstances thereof : (5.) The names of any members of the crew who have been maimed or hurt, with the times, places, causes and circumstances thereof : (6.) The wages due to any of the crew who have died, at the times of their respective deaths : (7.) The clothes and other effects belonging to any of the crew who have died, with a statement of the manner in which they have been dealt with, and the money for which any of them have been sold : (8.) The name, age and sex of every person, not being one of the crew, who dies on board, with the date and the cause thereof (a) : (9.) Every birth which happens on board, with the date thereof, the sex of the infant, and the names of the parents («) : (10.) Every marriage which takes place on board, with the date thereof, and the names and ages of the parties. CCLXXIV. In the case of foreign-going ships the master shaU, within lista for foreign forty- eight hours after the ship's arrival at her final port of destination in going ships to the United Kingdom, or upon the discharge of the crew, which ever first g^™^™ ^'^ *f happens, deliver to the shipping master before whom the crew is discharged on amval. such list as hereinbefore required, and if he fails so to do shall for every default incur a penalty not exceeding five pounds ; and such shipping master shall thereupon give to the master a certificate of such delivery ; and no officer of customs shall clear inwards any foreign-going ship without the production of such certificate, and any such officer may detain any such ship until the same is produced. CCLXXV. The master or owner of every home trade ship shall, within Lists to be de- twenty-one days after the thirtieth day of June and the thirty-first day of ^a'd|a,^''g'';^. December in every year, transmit or deliver to some shipping master in the yearly. United Kingdom such list as hereinbefore required for the preceding half- year, and shall in default incur a penalty not exceeding five pounds ; and such shipping master shall give to the master or owner a certificate of such transmission or delivery ; and no officer of customs shall grant a clearance or transire for any home trade ship without the production of such certificate, and any such officer may detain any such ship until the same is produced. CCLXXVI. If any ship ceases by reason of transfer of ownership or Lists to be sent chaijgo of employment to fall witliin the definition of a foreign-going or of a ^''"'Y" °?™. "* (») See 37 & 38 Vict. o. 88, s. 54. VOL. II. — S. 3 N 884 17' & 18 Vict. cap. 104. m. Segistration and Jieturns re- spectinff Seamen, and in case of loss. Shipping masters and other officers to transmit docu- ments to ^ registrar. Regi&trax to permit inspec- tion, to produce originals and give copies. Officers of cus- toms to make returns of ships to registrar. indentures, and assignments, on arrival at a foreign i)ort, to he deposited with the consul, and at a colony with the officers of customs. home trade ship, the master or owner thereof shall, if such ship is then in the United Kingdom, within one month, and if she is elsewhere, within six months, deliver or transmit to the shipping master at the port to which the ship has belonged such list as hereinbefore mentioned, duly made out to the time at which she ceased to be a foreign-going or home trade ship, and in default shall for each offence incur a penalty not exceeding ten pounds ; and if any ship is lost or abandoned, the master or owner thereof shall, if practicable and as soon as possible, deliver or transmit to the shipping master at the port to which the ship belonged such list as hereinbefore mentioned duly made out to the time of such loss or abandonment, and in default shall for each offence incur a penalty not exceeding ten pounds. CCLXXVII. All shipping masters and officers of customs shall take charge of all documents which are delivered or transmitted to or retained by them in pursuance of this Act, and shall keep them for such time (if any) as may be necessary for the purpose of settling any business arising at the place where such documents come into their hands, or for any other proper pur- pose, and shall, if required, produce them for any of such purposes, and shaU then transmit iiiem to the registrar-general of seamen, to be by him recorded and preserved {t) ; and the said registrar shall, on payment of a moderate fee to be fixed by the board of trade, or vrithout payment of any fee if the board of trade so directs, allow any person to inspect the sanie ; and in oases in which the production of the original of any such document in any court of justice or elsewhere is essential, shall produce the same, and in other cases shall make and deliver to any person requiring it a certified copy of any such document or of any part thereof ; and every copy purporting to be so made and certified shaU be received in evidence, and diall have all the effect of the original of which it purports to be a copy. COLXXVIII. The collector or comptroller of customs at every port in the United Kingdom shall on or before the first day of February and the first day of August in every year transmit to the registrar-general of seamen a list of all ships registered in such port, and also of all atiips whose registers have been transferred or cancelled in such port since the last preceding return. CCLXXIX. The following rules shall be observed with respect to the delivery of documents to British consular officers ; (that is to say,) (1 .) Whenever any ship, in whatever part of her Majesty's dominions the same is registered (except ships whose business for the time being is to carry passengers), arrives at any foreign port where there is a British consular officer, or at any port in any British possession abroad, and remains thereat for forty-eight hours, the master shall, within forty-eight hours of the ship's arrival, deliver to such consiilar officer, or to the chief officer of customs (as the case may he), the agreement with the crew, and also aU indentures and assignments of apprenticeships, or in the case of a ship belonging to a British possession, such of the said documents as such ship is provided with : (2.) Such officer shaU keep such documents during the ship's stay in such port, and, in oases where any indorsements upon the agreement are hereby required, shall duly make the same, and shaJl return the said documents to the master a reasonable time before his departure, with a certificate indorsed on the agreement, stating when tiie same were respectively delivered and returned : (3.) If it appears that the required forms have been neglected, or that the existing laws have been transgressed, such officer shall make an indorsement to that effect on the agreement, and forthwith transmit a copy of such indorsement, with the fullest information he can collect regarding such neglect or transgression, to the registrar- general of seamen : And if any master fails to deliver any such document as aforesaid he shall for every such default incur a penalty not exceeding twenty pounds ; and in any prosecution for such penalty it shall lie upon the master either to produce the certificate of the consular officer or officer of customs hereinbefore required, or to prove that he duly obtained the same, or that it was impracticable for him so to do, (t) See 50 & 61 Vict. o. 62, s. 4. Merchant Shipping Act. 885 Official Logs. m. 0£icial CCLXXX. The board of trade shall sanction forms of official log books -^' which may be different for different classes of ships, so that each such form OfBoial logs to contains blanks for the entries hereinafter required; and an official log of bekeptmfonns every ship (except ships employed exclusively in trading between ports on bSo( toade the coasts of the United Kingdom) shall be kept in the appropriate sanctioned form ; and such official log may, at the discretion of the master or owner, either be kept distinct from the ordinary ship's log or united therewith, so that in all cases all the blanks in the official log be dvjy filled up. CCLXXXI. Every entry in every official log shall be made as soon as Entries to be possible after the occurrence to which it relates, and if not made on the same made in duo day as the occurrence to which it relates, shall be made and dated so as to t™e- . show the date of the occurrence and of the entry respecting it ; and in no case shall any entry therein in respect of any occurrence happening previously to the arrival of the ship at her final port of discharge be made more than twenty-four hours after such arrival. CCLXXXII. Every master of a ship for which an official log book is Entries reauired hereby required shall make or cause to be made therein entries of the in official log. following matters ; (that is to say,) (1.) Every legal conviction of any member of his crew and the punish- Convictions. ment inflicted : (2.) Every offence committed by any member of his crew for which it is Offences, intended to prosecute, or to enforce a forfeiture, or to exact a fine, together wim such statement concerning the reading over such entry, and concerning the reply (if any) made to the charge, as hereinbefore required [u) : (3.) Every offence for which punishment is inflicted on board, and the Punishments. punishment inflicted. (4.) A statement of the conduct, character, and qualifications of each of Conduct, &o. of his crew, or a statement that he declines to give an opinion on such crew, particulars : (5.) Every case of illness or injury happening to any member of the crew, lUuesses and with the nature thereof, and the medical treatment adopted (if injuries, any): (6.) Every case of death happening on board, and of the cause there- Deaths. of (») : (7.) Every birth happening on board, with the sex of the infant and the Births. names of the parents [v] : (8.) Every marriage taking place on board, with the names and ages of Marriages. the parties : (9.) The name of every seaman or apprentice who ceases to be a member of Quitting ship, the crew, otherwise than by death, with the place, time, manner and cause thereof : (10.) The amount of wages due to any seaman who enters her Majesty's Wages of men service during the voyage : entering navy. (11.) The wages due to any seaman or apprentice who dies during the Wages of do- voyage, and the gross amount of all deductions to be made there- ceased seamen, from: (12.) The sale of the effects of any seaman or apprentice who dies during Sale of deceased the voyage, including a statement of each article sold, and of the ™^i's effects. sum received for it : (13.) Every collision with any other ship, and the circumstances under Collisions. which the same occurred. CCLXXXIII. The entries hereby required to be made in official log books Entries, how to shall be signed as follows ; that is to say, every such entry shall be signed by ^ signed, the master and by the mate or some oiier of the crew, and every entry of illness, injury or death shall be also signed by the surgeon or medical practitioner on board (if any) ; and every entry of wages due to or of the sale of the effects of, any seaman or apprentice who dies shall be signed by the master and by the mate and some other member of the crew ; and every entry of wages due to any seaman who enters her Majesty's service shall be signed («) See sect. 244, si^ra, p. 877. (») See 37 & 38 Vict. c. 88, s. 54. 3n2 886 17 & 18 Vict. cap. 104. m. Official Logs, Penalties in respect of official logs. Entries in official logs to be received in evidence. Official legs to be delivered to ihipping master. Official logs to be sent home in case of transfer of ship, and in case of loss. by the master, and by the seaman or by the officer authorized to receive the seaman into such service. CCLXXXTV. The following offences in respect of official log books shall be punishable as hereinafter mentioned ; (that is to say,) (1.) If in any case an official log book is not kept in the manner hereby required, or if any entry hereby directed to be made in any such log book is not made at the time and in the manner hereby directed, the master shall for each such offence incur the specific penalty herein mentioned in respect thereof, or where there is no such specific penalty, a penalty not exceeding five pounds : (2.) Every person who makes or procures to be made or assists in making any entry in any official log book in respect of any occurrence happening previously to the arrival of the ship at her final port of discharge more than twenty-four hours after such sirrival, shall for each such offence incur a penalty not exceeding thirty pounds : (3.) Every person who wilfully destroys or mutilates or renders illegible any entry in any official log book, or who wilfully makes or procures to be made or assists in making any false or fraudulent entry or omission in any such log book, shall for each such offence be deemed guilty of a misdemeanor. CCLXXXV. All entries made in any official log book as hereinbefore directed shall be received in evidence in any proceeding in any court of justice, subject to all just exceptions. CCLXXXVI. In the case of foreign-going ships the master shall, within forty-eight hours after the ship's arrival at her final port of destination in the United Kingdom or upon the discharge of the crew, whichever first happens, deliver to the shipping master before whom the crew is discharged the official log book of the voyage ; and the master or owner of every home trade ship, not exclusively employed in trading between ports on the coasts in the United Kingdom, shall withm twenty-one days after the thirtieth day of June and the thirty-first day of December in every year transmit or deliver to some shipping master in the United Kingdom the official log book for the preceding half-year ; and every master or owner who refuses or neglects to deliver his official log book as hereby required, shall be subject to the same consequences and liabilities to which he is hereby made subject for the non-delivery of the list of his crew hereinbefore mentioned. CCLXXXVII. If any ship ceases by reason of transfer of ownership or change of employment to fall within the definition of a foreign-going or of a home trade ship, the master or owner thereof shall, if such ship is then in the United Kingdom, within one month, and if she is elsewhere within six months, deliver or transmit to the shipping master at the port to which the ship belonged the official log book (if any) duly made out to the time at which she ceased to be a foreign-going or home trade ship, and in default shall for each offence incur a penalty not exceeding ten pounds ; and if any ship is lost or abandoned, the master or owner thereof shall, if practicable, and as soon as possible, deliver or transmit to the shipping master at the port to which the ship belonged the official log book (if any) duly made out to the time of such loss or abandonment, and in default shall for each offence incur a penalty not exceeding ten pounds. East Indies and Colonies. Proviaions of Act, as applied by East Indian and colonial governments to their own ships may be enforced throughout the empire. Mast Indies and Colonies. CCLXXXVIII. If the governor-general of India in council, or the respec- tive legislative authorities in any British possession abroad, by any acts, ordinances or other appropriate legal means, apply or adapt any of the provisions in the Third Part of this Act contained to any British ships registered at, trading with, or being at any place vrithin their respective jurisdictions, and to the owners, masters, mates and crews thereof, such provisions, when so applied and adapted as aforesaid, and as long as they remain in force, shall in respect of the ships and persons to which the same are applied be enforced, and penalties and punishments for the breach thereof shall be recovered and inflicted, throughout her Majesty's dominions, in the same manner as if such provisions had been hereby so adopted and applied, and such penalties and punishmenta had been hereby expressly imposed. Merchant Shipping Act. 887 CCLXXXIX. Every act, ordinance or other f oi-m of law to be passed or HI. Emt Indies promulgated by the governor-general of India in counoU, or by any other ""^ Colo nies. legislative authority in pursuance of this Act, shall respectively be subject East Indian and to the same right of disallowanoe or repeal, and require the same sanction or colonial Acts to other acts and formalities, and be subject to the same conditions in all respects 5? subject to as exist and are required in order Jo the validity of any other act, ordinance andreqSro^' or other form of law passed by such governor-general in council or other sanction as in legislative authority respectively. other cases. CCXO. If in any matter relating to any ship or to any person belonging Conflict of to any ship there appears to be a conflict of laws, then, if there is in the •"■^s- Third Part of this Act any provision on the subject which is hereby expressly made to extend to such ship, the case shall be governed by such provision, and if there is no such provision, the case shall be governed by the law of the place in which such ship is registered. PAET IV. Sapeit and Peevbntion of Aooldbnts. Sects, ccxci: to CCCXXIX. PART V. PrLOTAOB (x). Sects. CCCXXX. to CCCLXXXVII. V- ^'"^y "/ Owners' and Saving of Owners' and Masters' Sights. Master^ights. CCCLXXXVIII. No owner or master of any ship shall be answerable to i^S^'"? "' any person whatever for any loss or damage occasioned by the fault or in- owner where capacity of any qualified pilot acting in charge of such ship, within any pilotage is corn- district where the employment of such pilot is compulsory by law. puUory. PART VI. LiaHIHOtraEB. Sects. CCCLXXXIX. to CCCCXVI. PART VII. lilEBCAimLE Mmbhhz "Pvnd. Sects. OCCCXVII. to CCCCXXXI. (a:) See the Merchant Shipping (Pilotage) Act, 1889 (52 & 53 Vict. c. 68). 888' 17 & 18 Vict. cap. 104. PART VIII. Vm. Inquiries into Wrecks, Inquiries to be instiiruted in cases of wreck and casualty (z). Formal investi- gration before justices. Stipendiary magistrate to be the magistrate ■who is member of local marine board, and to be paid. Costs of such investigations. Investigations in Scotland. Weeoks, Casualties and SAi.vA(}E(y). Inquiries into Wrecks. COCCXXXII. In any of the oases following ; (that is to say,) Whenever any ship is lost, abandoned or materially damaged on or near the coasts of the United Kingdom ; Whenever any ship causes loss or material damage to any other ship on or near such coasts ; Whenever by reason of any casualty happening to or on board of any ship on or near such coasts loss of life ensues ; Whenever any such loss, abandonment, damage or casualty happens else- where, and any competent witnesses thereof arrive or are found at any place in the United Kingdom : It shall be lawful for the inspecting officer of the coast guard or the principal officer of customs residing at or near the place where such loss, abandonment, damage or casualty occurred, if the same occurred on or near the coasts of the United Kingdom, but if elsewhere, at or near the place where such vritnesses as aforesaid arrive or are found or can be conveniently examined, or for any other person appointed for the purpose by the board of trade to make inquiry- respecting such loss, abandonment, damage or casualty ; and "he shall for that purpose have all the powers given by the First Part of this Act to inspectors appointed by the said board. GGGCXIXXlll. If it appears to such officer or person as aforesaid, either upon or without any such preliminary inquiry as aforesaid, that a formal investigation is requisite or expedient, or if the board of trade so directs, he shall apply to any two justices or to a stipendiary magistrate to hear the case ; and such justices or magistrates shall thereupon proceed to hear and try the same, and shall for that purpose, so far as relates to the summoning of parties, compelling the attendance of witnesses and the regulation of the proceedings, have the same powers as if the same were a proceeding relating to an offence or cause of complaint upon which they or he have power to make a summary conviction or order, or as near thereto as circumstances permit, and it shall be the duty of such officer or person as aforesaid to superintend the management of the case, and to render such assistance to the said justices or magistrate as is in his power ; and, upon the conclusion of the case, the said justices or magistrate shall send a report to the board of trade, containing a full statement of the case and of their or his opinion thereon, accompanied by such report of or extracts from the evidence, and such observations (if any) as they or he may think fit. CCCCXXXIV. Repealed by 39 & 40 Vict. c. 80, s. 45. CCCCXXXV. In places where there is a local marine board, and where a stipendiary magistrate is a member of such board, all such investigations as aforesaid shall, whenever he happens to be present, be made before such magistrate ; and there shall be paid to such magistrate in respect of his services under this Act, such remuneration, whether by way of annual increase of salary or otherwise as her Majesty's secretary of state for the home department, with the consent of the board of trade, may direct ; and such remuneration shall be paid out of the mercantile marine fund. CCCCXXSVI. The said justices or magistrate may make such order with respect to the costs of any such investigation or any portion thereof as they or he may deem just, and such costs shall be paid accordingly, and shall he recoverable in the same manner as other costs incurred in summary pro- ceedings before them or him ; and the board of trade may, if in any case it thinks fit so to do, pay the expense of any such investigation, and may pay to such assessor as aforesaid such remuneration as it thinks fit. CCCCXXXVII. In the case of any such investigation as aforesaid to be held in Scotland, the board of trade may, if it so think fit, remit the same to the lord advocate, to be prosecuted in such manner as he may direct [and in iy) See 18 & 19 Vict. c. 91, ss.l9, 20, and 89 & 40 Vict. c. 80, s. 29, infra. (a) See 39 & 40 Vict. c. 80, s. 29, iiifra. Merchant Shipping Act. 889 case he so requires, with the assistance of such person of nautical skill and Tin. Inquiries knowledge as the board of trade may appoint for the purpose] (a). into Wrecks. CCCOXXXVIII. Such justices or magistrate as aforesaid may, or in Master or mate Scotland such person or persons as is or are directed by the lord advocate to may be required conduct the investigation may, if they or he think fit, require any master or *o aeliver <»rti- mate possessing a certificate of competency or service whose conduct is u^if chis^f called in question or appears to them or him likely to be called in question in. inquiiy. the course of such investigation, to deliver such certificate to them or him, and they or he shall hold the certificate so delivered until the conclusion of the investigation, and shall then either return the same to such master or mate, or, if their report is such as to enable the board of trade to cancel or suspend such certificate under the powers given to such board by the Third Part of this Act, shall forward the same to the board of trade, to be dealt with as such board thinks fit ; and if any master or mate fails so to deliver his certificate when so required, he shall incur a penalty not exceeding fifty pounds. Appointment and Unties of Receivers. Appointment and Duties CCCCXXXIX. The board of trade shaU throughout the United Kingdom of Receivers. have the general superintendence of all matters relating to wreck ; and it _, ^"77 may, with the consent of the commissioners of her Majesty's treasury, Sperinfendcnta appoint any officer of customs or of the coast guard, or any officer of inland of wreck, with revenue, or when it appears to such board to be more convenient, any other power to person to be a receiver of wreck in any district, and to perform such duties "PP?™' as are hereinafter mentioned, and shall give due notice of every such appointment. COOCXL. No admiral, vice-admiral, or other person, under whatever Admiral not to denomination, exercising admiralty jurisdiction, shall as such, by himself, interfere with or his agents, receive, take, or interfere with any wreck except as hereinafter ''"^''''■ mentioned. CCCCXLI. Whenever any ship or boat is stranded or in distress at any Doty of receiver place on the shore of the sea or of any tidal water within the limits of the ■w'!™.sver any United Kingdom, the receiver of the district within which such place is or'mlitresa." situate shall, upon being made acquainted with such accident, forthwith proceed to such place, and upon his arrival there he shall take the command of all persons present, and assign such duties to each person, and issue such directions, as he may think fit with a view to the preservation of such ship or boat, and the lives of the persons belonging thereto, and the cargo and apparel thereof ; and if any person wilfully disobeys such directions he shall forfeit a sum not exceeding fifty pounds ; but it shall not be lawful for such receiver to interfere between the master of such ship or boat and his crew in matters relating to the management thereof, unless he is requested so to do by such master. CCCCXLII. The receiver may, with a view to such preservation as Powers of re- aforesaid of the ship or boat, persons, cargo and apparel, do the following ceiver in case of tv;„™. rti,»i ;„ 4.„ » , ' '^ ' = jTjr ) o such accident to things; (that IS to say,) ^ fi,- t + -^-i,- any ship or boat. (1.) Summon such number of men as he thinks necessary to assist him : (2.) Require the master or other person having the charge of any ship or boat near at hand to give such aid with his men, ship or boats as may be in his power : (3.) Demand the use of any waggon, cart or horses that may be near at hand : And any person refusing without reasonable cause to comply with any summons, requisition or demand so made as aforesaid, shall for every such refusal incur a penalty not exceeding one hundred pounds ; but no person shall be liable to pay any duty of assessed taxes in respect of any such waggon, cart or horses, by reason of the user of the same under this section. CCCCXLIII. All cargo and other articles belonging to such ship or boat All articles as aforesaid as may be washed on shore, or otherwise be lost or taken from washed on shore such ship or boat, shall be delivered to the receiver; and any person, fTOmany^aMp whether he is the owner or not, who secretes or keeps possession of any such or boat, to be cargo or article, or refuses to deliver the same to the receiver or to any delivered to the person authorised by him to demand the same, shall incur a penalty not '■^'*^™'^' (fl) Words within brackets repealed by 39 & 40 Vict, c, 80, s. 45. 890 17 & 18 Vict. cap. 104. v 1 1 . Appoint- ment and Dutws of Eeceivers. Power of re- ceiver to sup- press plunder and disorder by force. Certain officers to exercise powers of receiver in liis absence. Power in case of a ship being in distress to pass over adjoining lands with carriages. Penalty on owners and occupiers of land refusing to allow carriage's, &C.J to pass over their land. Power of re- ceiver to insti- tute examina- tion with respect to ships in distress (&). exceeding one hundred pounds ; and it shall be lawful for such receiver or other person as aforesaid to take such cargo or article hy force from the person so refusing to deliver the same. CCCCXliIV. Whenever any accident as aforesaid occurs to any ship or boat, and any person plunders, creates disorder or obstructs the preservation of such ship, boat, lives or cargo as aforesaid, it shall be lawful for the receiver to cause such person to be apprehended, and to use force for the suppression of any such plundering, disorder or obstruction as aforesaid, with power to command all her Majesty's subjects to assist him in the use of such force ; and if any person is killed, maimed or hurt by reason of his resisting the receiver in the execution of the duties hereby committed to him, or any person acting under his orders, such receiver or any other person shaU be free and fuUy indemnified as well against the Queen's Majesty, her heirs and successors, as against all persons so killed, maimed or hurt. CCOCXLV. During the absence of the receiver from the place where any such accident as aforesaid occurs, or in places where no receiver has been appointed under this Act, the following officers in succession, each in the absence of the other, in the order in which they are named, that is to say, any principal officer of customs or of the coast guard, or officer of inland revenue, and also any sheriff, justice of the peace, commissioned officer on full pay in the naval service of her Majesty, or commissioned officer on full pay in the military service of her Majesty, may do all matters and things hereby authorised to be done by the receiver, with this exception, that with respect to any goods or articles belonging to any such ship or boat, the delivery up of which to the receiver is hereinbefore required, any officer so acting shall be considered as the agent of the receiver, and shall place the same in the custody of the receiver, and no person so acting as substitute for any receiver shall be entitled to any fees payable to receivers, or be deprived by reason of his so acting of any right to salvage to which he would otherwise be entitled. CCCCXLVI. Whenever any such accident as aforesaid occurs to any ship. or boat, all persons may, for the purpose of rendering assistance to such ship or boat, or saving the lives of the persons on board the same, or the cargo or apparel thereof, unless there is some public road equally convenient, pass and repass either with or without carriages or horses over any adjoining lands, without being subject to interruption by the owner or occupier, so that they do as little damage as possible, and may also, on the like condition, deposit on such lands any cargo or other article recovered from such ship or boat ; and aU damage that may be sustained by any owner or occupier in consequence of any such passing or repassing or deposit as aforesaid shall be a charge on the ship, boat, cargo or articles in respect of or hy which such damage was occasioned, and shall, in default of payment, be recoverable in the same manner as salvage is hereby made recoverable ; and the amount payable in respect thereof, if disputed, shall be determined in the same manner as the amount of salvage is hereby in case of dispute directed to be determined. CCCCXLVII. If the owner or occupier of any land over which any person is hereby authorised to pass or repass, for any of the purposes hereinbefore mentioned does any of the following things ; (that is to say,) (1.) Impedes or hinders any such person from so passing or repassing, with or without carriages, horses and servants, by locking his gates, refusing upon request to open the same or otherwise however : (2.) Impedes or hinders the deposit of any cargo or other article recovered from any such ship or boat, as hereinbefore mentioned : (3 ) Prevents such cargo or other article from remaining so deposited for a reasonable time, untU the same can be removed to a safe place of puhHc deposit : he shall for every such offence incur a penalty not exceeding one hundred pounds. CCCCXLVIII. Any receiver, or in his absence any justice of the peace, shall, as soon as conveniently may be, examine upon oath (which oath they 8ire hereby respectively empowered to administer) any person belonging to any ship which may be or may have been in distress on the coasts of the [b) 39 & 40 Vict, c, 80, ss. 31, 32, 33, infra. Merchant Shipping Act. 891 TJnited Kingdom, or any other person who may be able to give any account vttt Appoint- thereof , or of the cargo or stores thereof, as to the following matters ; fthat ™™' ""'^ Duties is to say,) ' of Meceivera. (1.) The name and description of the ship : (2.) The name of the master and of the owners : (3.) The names of the owners of the cargo : (4.) The ports or places from and to which the ship was bound : (6.) The occasion of the distress of the ship : (6.) The services rendered : (7.) Such other matters or circumstances relating to such ship, or to the cargo on board the same, as the receiver or justice thinks neces- sary ; and such receiver or justice shall take the examination down in writing, and shall make two copies of the same, of which he shall send one to the board of trade, and the other to the secretary of the committee for managing the affairs of Lloyd's in London, and such last-mentioned copy shall be placed by the said secretary in some conspicuous situation for the inspection of persons desirous of examining the same; and for the purposes of such examination every such receiver or justice as aforesaid shall have all the powers given by the First Part of this Act to inspectors appointed by the board of trade. OCCCXLIX. Eepealed by 39 & 40 Vict. o. 80. GCCCL. The foUowing rules shall be observed by any person finding or Holes to be taking possession of wreck within the United Kingdom ; (that is to say,) observed by (1.) If the person so finding or taking possession of the same is the owner, '"'g^^ finding he shall as soon as possible give notice to the receiver of the district ^"^ within which such wreck is found, stating that he had so found or taken possession of the same ; and he shall describe in such notice the marks by which such wreck is distinguished : (2.) If any person not being the owner finds or takes possession of any wreck, he shall as soon as possible deliver the same to such receiver as aforesaid : and any person making default in obeying the provisions of this section shall incur the following penalties ; (that is to say,) ^ (3.) If he is the owner, and makes default in performing the several things the performance of which is hereby imposed on an owner, he shall incur a penalty not exceeding one hundred pounds : (4.) If he is not the owner, and makes default in performing the several things, the performance of which is hereby imposed on any person not being an owner, He shall forfeit all claim to salvage ; He shall pay to the owner of such wreck, if the same is claimed, but if the same is unclaimed then to the person entitled to such unclaimed wreck, double the value of such wreck (such value to be recovered in the same way as a penalty of like amount) ; and He shall incur a penalty not exceeding one hundred pounds. CCCCLI. If any receiver suspects or receives information that any wreck Power for re- is secreted, or in the possession of some person who is not the owner thereof, eeivers to seize or otherwise improperly dealt with, he may apply to any justice of the peace concealed wreck, for a warrant, and such justice shall have power to grant a warrant, by virtue whereof it shall be lawful for the receiver to enter into any house or other place wherever situate, and also into any ship or boat, and to search for, and to seize and detain any such wreck as aforesaid there found ; and if any such seizure is made in consequence of information that may have been given by any person to the receiver, the informer shall be entitled by way of salvage to such sum not exceeding in any case five pounds as the receiver may allow. CCCCLII. Every receiver shall within forty-eight hours after taking Notice of wreck possession of any wreck cause to be posted up in the custom-house of the to be girea by port nearest to the place where such wreck was found or seized a description receiver, of the same and of any marks by which it is distinguished, and shall also, if the value of such wreck exceeds twenty pounds, but not otherwise, transmit a similar description to the secretary of the committee of Lloyd's aforesaid ; and such secretary shall post up the description so sent, or a copy thereof, in some conspicuous place, for the inspection of aU persons desirous of examin- ing the same. 892 17 & 18 Vict. cap. 104. \ 1 1 1. Appoint- ment and Duties of Receivers, Goods deemed peiishaHe or of small value may be sold imme- diately. In cases ■where any lord of ttte manor or other person is entitled to unclaimed ■wreck, receiver to give notice to him. Payments to be maide to receiver. Disputes as to sums payable to receiver to he determined by board of trade. Application of fees. CCOCLIII. In oases -where any -wreck in the custody of any receiver is under the value of five pounds, or is of so perishable a nature or so much damaged that the same cannot, in his opinion, he advantageously kept, or if the value thereof is not sufficient to defray the charge of •warehousing, the receiver may sell the same before the expiration of the period hereinafter mentioned, and the money raised by such sale, after defraying the expenses thereof, shall be held by the receiver for the same purposes and subject to (he same claims for and to v/hioh the article sold ■would have been held and liable if it had remained unsold. CCOCLIV. In cases where any admiral, vice-admiral, lord of the manor or other person is entitled for his o-wn use to unclaimed ■wreck found on any place situate within a district for which a receiver is appointed, such admiral, vice-admiral, lord of the manor, or other person shall deliver to such receiver a statement containing the particulars of his title, and the address to which notices are to be sent ; and upon such statement being so delivered, and proof made to the satisfaction of the receiver of the validity of such title, it shall be his duty, whenever he takes possession of any wreck found at any such place, to send within forty-eight houi-s thereafter a description of the same and of any marks by whidi it is distinguished, directed to such address as aforesaid. CCCCLV. There shall be paid to all receivers appointed under this Act the expenses properly incurred by them in the performance of their duties, and also in respect of the several matters specified in the table marked (V) in the Schedule hereto, such fees, not exceeding the amounts therein mentioned, as may from time to time be directed by the board of trade ; and the receiver shall have the same lien, and be entitled to the same remedies for the recovery of such expenses and fees as a salvor has or is entitled to in respect of salvage due to him ; but, save as aforesaid, no receiver appointed under this Act shall, as such, be entitled to any remuneration whatsoever. CCCCLVI. Whenever any dispute arises in any part of the United King- dom as to the amount payable to any receiver in respect of expenses or fees, such dispute shall be determined by the board of trade, whose decision shall be final. CCCCLVII. All fees received by any receiver appointed under this Act, in respect of any services performed by him as receiver, shall be carried to and form part of the mercantile marine fund, and a separate account thereof shall be kept, and the moneys arising therefrom shall be applied in defraying any expenses duly incurred in carrying into effect the purposes of the Eighth Paxt of this Act, in such manner as the board of trade directs. Salvage in the United Kingdom. ^ 2 m re- spect of services rendered in the United Kingdom. Salvage for life may be paid by board of trade out of mercan- tile marine fund. Salvage in the United Kingdom (c). CCCCLVIII. In the followiug oases (that is to say,) Whenever any ship or boat is stranded or otherwise in distress on the shore of any sea or tidal water situate within the limits of the United King- dom, and services are rendered by any person, (1.) In assisting such ship or boat : (2.^ In saving the lives of the persons belonging to such ship or boat : (3.) In saving the cargo or apparel of such ahip or boat, or any portion thereof : And whenever any ■wreck is saved by any person other than a receiver within the United Kingdom ; There shall be payable by the owners of such ship or boat, cargo, apparel or ■wreck, to the person by whom such services or any of them are rendered or by whom such wreck is saved, a reasonable amount of salvage, together with all expenses properly incurred by him in the performance of such services or the saving of such wreck, the amount of such salvage and expense (which expenses are hereinafter included under the term salvage) to be determined in case of dispute in manner hereinafter mentioned. CCOCLIX. Salvage in respect of the preservation of the life or lives of any person or persons belonging to any such ship or boat as aforesaid shall be payable by the owners of Sie ship or boat in priority to all other claims for salvage ; and in cases where such ship or boat is destroyed, or where the value thereof is insufficient, after payment of the actual expenses incurred. (c) See 18 & 19 Viot. o. 91, b. 20, infra. Merchant Shipping Act. 895 to pay the amount of salvage due in respect of any life or lives, the board of VIII. Salvage in trade may in its discretion award to the salvors of such life or lives, out of "^. P"''«"* the mercantile marine fund, such sum or sums as it deems fit, in v^hole or kingdom. part satisfaction of any amount of salvage so left unpaid in respect of such life or lives. CCCCLX. Disputes with respect to salvage arising within the houndaries Disputes as to of the cinque ports shall be determined in the manner iu which the same salvage, how to have hitherto been determined ; but whenever any dispute arises elsewhere iu ^^ settled, the United Kingdom between the owners of any such ship, boat, cargo, apparel or wreck as aforesaid, and the salvors, as to the amount of salvage, and the parties to the dispute cannot agree as to the settlement thereof by arbitration or otherwise. Then, if the sum claimed does not exceed two hundred pounds {d), Such dispute shall be referred to the arbitration of any two justices of the peace resident as follows ; (that is to say,) In case of wreck, resident at or near the place where such wreck is found: In case of services rendered to any ship or boat, or to the persons, cargo or apparel belonging thereto, resident at or near the place where such ship or boat is lying, or at or near the first port or place in the United Kingdom into which such ship or boat is brought after the occurrence of the accident by reason whereof the claim to salvage arises : But if the sum claimed exceeds two hundred pounds {d), Such dispute may, with the consent of the parties, be referred to the arbitration of such justices as aforesaid, but if they do not consent shall iu England be decided by the high court of admiralty of Eng- land, in Ireland by the high court of admiralty of Ireland (e), and in Scotland by the court of session ; subject to this proviso, that if the claimants in such dispute do not recover in such court of admiralty or court of session a greater sum than two hundred pounds, they shall not, unless the court certifies that the case is a fit one to bo tried in a superior court, recover any costs, charges or expenses in- cuiTcd by them iu the prosecution of their claim (/) : And every dispute with respect to salvage may be heard and adjudicated upon on the application either of the salvor or of the owner of the property salved, or of their respective agents. COCCLXI. Whenever in pursuance of this Act any dispute as to salvage Manner in which is refetred to the arbitration of two justices, they may either themselves deter- J^tioes may de- mine the same, with power to call to their assistance any person conversant ° diflputes. with maritime affairs as assessor, or they may, if a difference of opinion arises between them, or without such difference if they think fit, appoint some person conversant with maritime affairs as umpire to decide the point in dispute ; and such justices or their umpire shall make an award as to the amount of salvage payable, within the following times, that is to say, the said justices within forty-eight hours after such dispute has been referred to them, and the said umpire within forty-eight hours after his appointment, with power nevertheless for such justice or umpire by writing under their or his hands or hand to extend the time within which they and he are hereby respectively directed to make their or his award. CCOOLXII. There shall be paid to every assessor and umpire who may Costs of be 80 appointed as aforesaid in respect of his services such sum not exceeding arbitration, five pounds as the board of trade may from time to time direct ; and all the costs of such arbitration, including any such payments as aforesaid, shall be paid by the parties to the dispute, in such manner and in such shares and pro- portions as the said justices or as the said umpire may direct by their or his award. OCOCLXIII. The said justices or their umpire may call for the produo- Justices may tion of any documents in the possession or power of either party, which they "^^^ {?'' ''5™! or ho may think necessary for determining the question in dispute, and may SSster'oaths. examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose. c ((«) But see now 25 & 26 Vict. (e) 30 & 31 Vict. c. 114, s. 27. 63, 8. 49, infra. (/) 31 & 32 Vict. c. 71, s. 3. 894 17 & 18 Vict. cap. 104. yni. Salvage in OCCCLXIV. If any person is aggrieved by the a-ward made by such x'tnodom justices or such umpire as aforesaid, he may in England appeal to the high ' ■ court of admiralty of England, in Ireland to the high court of admiralty of Appeal to Courts Ireland, and in Scotland to the court of session ; but no such appeal shall be of Admiralty. allowed unless the sum in dispute exceeds fifty pounds, nor unless within ten days after the date of the award the appellant gives notice to the justices to whom the matter was referred of his intention to appeal, nor unless the appellant proceeds to take out a monition or to take such other proceeding as according to the practice of the court of appeal is necessary for th6 institu- tion of an appeal, within twenty days from the date of the award. Justices to CCCCLXV. Whenever any appeal is made in manner hereinbefore pro- TO™SLraMid ■''i'^s'J' *^s justices shall transmit to the proper officer of the court of appeal certificate of ^ copy on unstamped paper certified under their hands to be a true copy of value to Court of the proceedings had before such justices or their umpire, if any, and of the Appeal. award so made by them or him, accompanied by their or his certificate in writing of the gross value of the article respecting which salvage is claimed ; and such copy and certificate shall be admitted in the court of appeal as evidence in the cause. Payment of CCCCLXVI. Whenever the aggregate amount of salvage payable in re- ealvage, to gpect of salvage services rendered in the United Kingdom has been finally made'sncase of ascertained either by agreement or by the award of such justices or their dispute as to umpire, but a dispute arises as to the apportionment thereof amongst several apportionment, claimants, then, if the amount does not exceed two hundred pounds, it shall be lawful for the party liable to pay the amount so due to apply to the receiver of the district for liberty to pay the amount so ascertained to him ; and he shall, if he thinks fit, receive the same accordingly, and grant a certificate under his hand, stating the fact of such payment and the services in respect of which it is maJJe ; and such certificate shall be a full discharge and indemnity to the person or persons to whom it is given and to their ship, boats, cargo, apparel and effects, against the claims of all persons whomsoever in respect of the services therein mentioned ; but if the amount exceeds two hundred pounds it shall be apportioned in manner hereinafter mentioned. Apportionment CCCCLXVII. Upon the receipt of any such amount as aforesaid the of salvage. receiver shall with all convenient speed proceed to distribute the same among the several persons entitled thereto, upon such evidence and in such shares and proportions as he thinks fit, with power to retain any moneys that may appear to him to be payable to any absent parties ; but any distribution made in pursuance of this section shall be final and conclusive against the rights of all persons claiming to be entitled to any portion of the moneys so distributed. Marnier of en- CCCCLXVIII. Whenever any salvage is due to any person under this foromg payment Act, the receiver shall act as follows ; (that is to say,) o s vage. ^ J ji j.]^g same is due in respect of services rendered in assisting any ship or boat, or in saving the lives of persons belonging to the same, or the cargo or apparel thereof, He shall detain such ship or boat and the cargo and apparel belonging thereto until payment is made, or process has been . issued by some competent court for the detention of such ship, boat, cargo or apparel : (2.) If the same is due in respect of the saving of any wreck, and such wreck is not sold as unclaimed in pursuance of the provisions hereinafter contained, He shall detain 'such wreck until payment is made, or process has been issued in manner aforesaid : But it shall be lawful for the receiver, if at any time previously to the issue of such process security is given to his satisfaction for the amount of salvage due, to release from his custody any ship, boat, cargo, apparel, or wreck so detained by him as aforesaid (^) : and in cases where the claim for salvage exceeds two hundred pounds, it shall bo lawful in England for the high court of admiralty of England, in Ireland for the high court of admiralty of Ireland, and in Scotland for the court of session (A), to determine any question that may arise concerning the amount of the security to be given or the sufficiency of the sureties ; and in all cases where bond or other security iff) 25 & 26 Vict. u. 63, s. 50, infra. (A) Id. s. 51, infra. Merchant Shipping Act. 895 is given to the receiver for an amount exceeding' two tundred pounds, it shall Vm. Salvage in be lawful for the salvor or for the owner of the property salved, or their '^. ^'"^"-^ respective agents, to ipstitute proceedings in such last-mentioned courts for ' "'^ " '"' the purpose of having the questions arising between them adjudicated upon, and the said courts may enforce payment of the said bond or other security, in the same manner as if bail had been given in the said courts. CCCCLXIX. Whenever any ship, boat, cargo, apparel or wreck is detained Power of by any receiver for non-pajTnent of any sums so due as aforesaid, and the receiver to sell parties liable to pay the same are aware of such detention, then, in the Kf'!?!™''„f*i,™ 4 1, • ,.1 i_ • L \ ' ' lii Lases oi Hon- folio wmg oases, (that is to say,) payment. (1.) In cases where the amount is not disputed, and payment thereof is not made Trithin twenty days after the same has become due : (2.) In cases where the amount is disputed, but no appeal lies from the first tribunal to which the dispute is referred, and payment thereof is not made within twenty days after the decision of such first tribunal : (3.) In cases where the amouht is disputed, and an appeal lies from the decision of the first tribunal to some other tribunal, and payment thereof is not made within such twenty days as last aforesaid, or such monition as hereinbefore mentioned is not taken out within such twenty days, or such other proceedings as are according to the practice of such other tribunal necessary for the prosecution of an appeal are not instituted within such twenty days : The receiver may forthwith sell such ship, boat, cargo, apparel or wreck, or a sufBcient part thereof, and out of the proceeds of the sale, after payment of all expenses thereof, defray all sums of money due in respect of expenses, fees and salvage, paying the surplus, if any, to the owners of the property sold, or other the parties entitled to receive the same. CCCCLXX. Subject to the payment of such expenses, fees and salvage as Subject to pay- aforesaid, the owner of any wreck who establishes his claim thereto to the "1™*°'^^- satisfaction of the receiver within one year from the date at which such salvage, owner wreck has come into the possession of the receiver, shall be entitled to have entitled to the same delivered up to him (i). wreck. Unclaimed Wreck in the XTnitcd Kingdom. Unclnimd Wreck in the CCCCLXXI. In the event of no owner {k) establishing a claim to a wreck United Kingdom. found in any place in the United Kingdom before the expiration of a. year . — 7 from the date at which the same has come into the possession of the receiver, aelivw^ppos- then, if any such admiral, vice-admiral, lord of any manor, or other person session of un- as aforesaid has given notice to and has proved to the satisfaction of the claimed wreck receiver, that he is entitled to wreck found at such place, the receiver shall, OTotl^r nS""" upon payment of all expenses, fees and salvage due in respect of such wreck, entitled, deliver up possession thereof to such admiral, vice-admiral, lord of the manor, or other person [1) ; and in ease of dispute as to the amount of the sums so payable, and also in case of default being made in payment thereof, such dispute shall be determined and payment enforced in the manner in which such amount and payment is hereby directed to be determined and enforced in cases where any owner establishes his claim to wreck. CCCCLXXII. If any dispute arises between the receiver and any such Disputed title to admiral, vice-admiral, lord of any manor, or other person as aforesaid, as to wreck, how to be the validity of his title to wreck, or if divers persons claim to be entitled to "s'^ided. wreck found at the same place, the matter in dispute may be decided by two justices in the same manner in which disputes as to salvage coming within the jurisdiction of justices are hereinbefore directed to be determined. CCCCLXXIII. If any party to such dispute is unwilling to refer the Appeal from de- same to two justices, or, having so referred the same, is dissatisfied with ?ision of their decision, he may within three months from the expiration of such year ■'"^ '^^' as aforesaid, or from the date of such decision as aforesaid, as the case may be, take such proceedings as he may be advised in any court of law, equity, or admiralty having jurisdiction in the matter, for establishing his title. CCCCLXXIV. The board of trade shall have power, with the consent of Power of the board of trade (i) See 18 & 19 Vict. 0. 91, s. 19, (A) 25 & 26 Viot. c. 63, s. 52, infra, infra. [^ Id. s. 53, infra. -8% 17 & 18 Vict. cap. 104. VIII- Unclaimed Wreck in the United Kingdom. on behalf of the Crown to pur- chase right to ■wreck. Undaiined "wreck to he sold [m). the Treasury, out of the revenue arisinpf under the Eighth Part of this Act, for and on. behalf of her Majesty, her heirs and suocessors, to purchase all such rights to wreck as may be possessed by any person or body corporate other than her Majesty ; and for the purpose pf facilitating such purposes the provisions of the Lands Clauses Consofidation Act, 1845, and the Lands Clauses Consolidation (Scotland) Act, 1845, relating to the purchase of lands by agreement, sbaU be incorporated with this Act ; and in the construction of this Act and the said incorporated Acts this Act shall be considered to be the " special Act ; " and any such rights to wreck as aforesaid shall be con- sidered as an interest in land authorized to be taken by the special Act, and her Majesty, her heirs and suocessors, shall be considered as the pro- moters of the undertaking. CCCCLXXV. If no owner establishes his claim to wreck found at any place before the expiration of such period of a year as aforesaid, and if no admiral, vice-admiral, lord of any manor, or person other than her Majesty, her heirs and successors, is proved to be entitled to such wreck, the receiver shall forthwith sell the same, and after payment of all expenses attending such sale, and deducting therefrom his fees and all expenses (if any) incurred by him, and paying to the salvors suoh amount of salvage as the board of trade may in each case or by any general rule determine, pay the same into the receipt of her Majesty's Exchequer in such manner as the Treasury may direct, and the same shall be carried to and form part of the consolidated fund of the United Kingdom. Jurisdiction of the Sigh Court of Admiralty. High court of admiralty may decide on all salvage cases, ■whether on sea or land. Offences in re- spect of Wreck. In case of ship ■wrecked being plundered by a tumultuous assemblage, the hundred to be liable for damages. Jurisdiction of the High, Court of Admiralty. CCCCLSXVI. Subject to the provisions of this Act, the High Court of Admiralty shall have jurisdiction to decide upon all claims whatsoever relating to salvage, whether the services in respect of which salvage is claimed were performed upon the high seas, or within the body of any county, or partly in one place and partly in the other, and whether the ■wreck is found at sea or oast upon the land, or partly in the sea and partly onland(»). Offences in respect of Wreck. CCCCLXXVII. "Whenever any ship or boat is stranded or otherwise in distress on or near the shore of any sea or tidal water in the United King- dom, and suoh ship or boat, or any part of the cargo or apparel thereof, is plundered, damaged or destroyed by any persons riotously and tumultuonsly assembled together, whether on shore or afloat, full compensation shall be made to the owner of such ship, boat, cargo, or apparel, as follows ; (that is to say,) In England, by the inhabitants of the htmdred, wapentake, ward, or dis- trict in the nature of a hundred, by whatever name denominated, in or nearest to which the said offence is committed, in manner pro- vided by an Act of the eighth year of the reign of King George the Fourth, chapter thirty-one, in case of the destruction of churches and other buildings by a riotous assemblage, or as near thereto as circumstances permit : In Ireland, by the inhabitants of the county, county of a city or town barony, town or towns, paxish or parishes, in or nearest to which suoh offence is committed, in manner provided by an Act of the fourth year of the reign of King William the Eourth, chapter thirty-seven, for the recovery of satisfaction and amends for the malicious demolition of or injury to churches, chapels and other buildings used for religious worship, according to the usage of the United Church of England, and Ireland, or as near thereto as circumstances permit. In Scotland, by the inhabitants of the county, city or borough in or nearest to which suoh offence is committed, in manner provided hy an Act of the first year of King Greorge the First, statute two, chapter five, with respeot to proseoutions for repairing the damages (m) See 26 & 26 Vict. o. 63, s. 53, infra. [n] Extended by 24 Vict. e. 10, s, 9, to claims for salvage of life. Merchant Shipping Act. 897 of any ohurohea and other buildings, or as near thereto as oiroum- Vm. Offences in stances permit. respect of Wreck. COCOLXXVIII. Erery person who does any of the following acts ; (that penaltrfor is to say, J ^ plundering in (1 .) Wrongfully carries away or removes any part of any ship or boat ca^es of ship- stranded or in danger of being stranded or otherwise in distress on '?£?''' ??'„ ,,^ or near the shore of any sea or tidal water, or any part of the cargo ^yi^Vf°Siip- or apparel thereof, or any wreck ; or wrecked pro- (2.) Endeayours in any way to impede or hinder the saving of such ship, pcrty, and for boat, cargo, apparel or wreck ; or same*™^ (3.) Secretes any wreck, or obliterates or defaces any marks thereon ; Shall, in addition to any other penalty or punishment he may be subject to , under this or any other act or law, for each such offence incur a penalty not exceeding fifty pounds ; and every person, not being a receiver or a person hereinbefore authorized to take the command in cases of ships being stranded or in distress, or not acting under the orders of such receiver or person, who without the leave of the master, endeavours to board any such ship or boat as aforesaid, shall for each offence incur a penalty not exceeding fifty pounds ; and it shaU be lawful for the master of such ship or boat to repel by force any such person so attempting to board the same (o). CCCCIiXXIX. If any person takes into any foreign port or place any ship Penalty for or boat stranded, derelict, or otherwise in distress on or near the shore of the selling wreck in sea or of any tidal water situate within the limits of the United Kingdom, or '°™'&° ports, any part of the cargo or apparel thereof, or anything belonging thereto, or any wreck found within such limits as aforesaid, and there sells the same, he shall be guilty of felony, and be subject to penal servitude for a term not exceeding four years. Dealers in Marine Stores and Manufacturers of Anchors. Dealers in COCCLXXX. Every person dealing in, buying and selling anchors, cables, 'and Manufac- sails or old junk, old iron, or marine stores of any description, shall conform lurerso/Anchors. to the following regulations ; (that is to say,) Eegul^tois to (1.) He shall have his name, together with the words "Dealer in Marine be observed by Stores, ' ' painted distinctly in letters of not less than six inches in dealers in length on every warehouse or other place of deposit belonging to ™ariie stores. him ; If he does not he shall incur a penalty not exceeding twenty pounds : (2.) He shall keep a book or books, fairly written, and shaU enter therein an account of all such marine stores as he may from time to time become possessed of, stating, in respect of each article, the time at which and the person from whom he purchased or received the same, adding, in the case of every such last-mentioned person, a descrip- tion of his business and place of abode : If he does not he shall incur for the first offence a penalty not exceeding twenty pounds, and for every subsequent offence a penalty not exceeding fifty pounds : (3.) He shall not, by himself or his agents, purchase marine stores of any description from any person apparently under the age of sixteen years ; If he does so he shall incur for the first offence a penalty not exceeding five pounds, and for every subsequent offence a penalty not exceeding twenty pounds : (4.) He shall not cut up any cable, or any similar article exceeding five fathoms in length, or unlay the same into twine or paper stuff, on any pretence whatever, without obtaining such permit and publishing such notice of his having so obtained the same as is hereinafter mentioned ; If he does so he shall incur for the first offence a penalty not exceeding twenty pounds, and for every subsequent offence a penalty not exceeding fifty pounds {p). (o) 24 & 25 Viot. c. 96, ss. 65, 66, (p) 38 & 39 Vict. o. 25. infra; 24 & 25 Viot. o. 100, ss. 17, 37. 898 17 & 18 Vict. cap. 104. Vnr. Dealers in Manne Stores and ManufaO' turera of Anchors. Manner of ob- taJDing permit to cut up cables. Permit to be advertised before dealer proceeds^ act thereon. Manuf«cturera to place marks on anchors. Salvage Tjy U. M. Ships. No claim for salvage services to be allowed in respect of loss or risk of her Majesty's ships or property. Claims for salvage by her Majesty's officers not to be determined ■without consent of admiralty. Steps to be taken when salvage services have been ren- dered by her CCCCLXXXI. In order to obtain such permit as aforesaid, a dealer in marine stores shall make a declaration before some ju.stioe of the peace, having jurisdiction over the place where such dealer resides, containing^ the following particulars ; (that is to say,) (1.) A statement of the quality and description of the cable or other like article about to be cut up or unlaid : (2.) A statement that he purchased or otherwise acquired the same boni fide and without fraud, and without any knowledge or suspicion that the same had been come by dishonestly : (3.) A statement of the name and description of the person from whom he purchased or received the same : And it shall be lawful for the justice before whom any such declaration is made, or for the receiver of the district in which such dealer in marine stores resides, upon the production of any such declaration as aforesaid, to grant a permit authorizing him to out up or unlay such cable or other like article. CCCCLXXXII. No dealer in marine stores who has obtained such permit as aforesaid shall proceed by virtue thereof to cut up or unlay any cable or other like article until he has for the space of one week at the least before doing any such act published in some newspaper published nearest to the place where he resides one or more advertisements notifying the fact of his having so obtained a permit, and specifying the nature of the cable or other article mentioned in ttie permit, and the place where the same is deposited, and the time at which the same-is intended to be so out up or unlaid ; and if any person suspects or believes that such cable or other article is his property, he may apply to any justice of the peace for a warrant ; and such justice of the peace may, on the applicant making oath, or, if a person entitled to make an affirmation, making an affirmation, in support of such his suspicion or belief, grant a warrant by virtue whereof the applicant shall be entitled to require the production by such dealer as aforesaid of the cable or other article mentioned in the permit, and also of the book of entries hereinbefore directed to be kept by every dealer in marine stores ; and upon such cable or other article and book of entries being produced, to inspect and examine the same ; and if any dealer in marine stores makes default in complying vrith any of the provisions of this section, he shall for the first offence incur a penalty not exceeding twenty pounds, and for every subsequent offence » penalty not exceeding fifty pounds. CCCCLXXXIII. Every manufacturer of anchors shall, in case of each anchor which he manufactures, mark in legible characters on the crown and also on the shank under the stock his name or initials, with the addition of a progressive number and the weight of such anchor ; and if he makes default in doing so he shall for each offence incur a penalty not exceeding five pounds. Salvage by ffer Ifajesty'a Ships. CCCCLXXXIV. In cases where salvage services are rendered by any ship belonging to her Majesty or by the commander or crew thereof, no claim shall be made or allowed for any loss, damage or risk thereby caused to such ship, or to the stores, tackle or furniture thereof, or for the use of any stores or other articles belonging to her Majesty supplied in order to effect such services, or for any other expense or loss sustained by her Majesty by reason of such services. CCCCLXXXV. No claim whatever on account of any salvage services rendered to any ship or cargo or to any appurtenances of any ship by the commander or crew or part of the crew of any of her Majesty's ships shaE be finally adjudicated upon unless the consent of the admiralty has been first obtained, such consent to be signified by writing under the hand of the secre- tary to the admiralty ; and if any person who has originated proceedings in respect of any such claim fails to prove such consent to the satisfaction of the court, his suit bhall stand dismissed and he shall pay all the costs of such pro- ceedings ; provided that any document purporting to give such consent and to be signed by the secretary to the admiralty shall be primS, facie evidence of such consent having been given. CCCCLXXXVI. Whenever services for which salvage is claimed are rendered to any ship or cargo, or to any part of any ship or cargo, or to any appurtenances of any ship, at any place out of tlie United Kingdom and the four seas adjoining thereto, by the commander or crew or part of the crew Merchant Shipping Act. 899 of any of her Majesty's ships, the property allej^ed to be salved shall, if the Tm. Salvage hy salvor is justified by the circumstances of the case in detaining it at all, be ^- ^- S*'i"- taken to some port where there is either a consular officer or a vice-admiralty Majesty's ships court ; and within twenty-four hours after arriving at such port the said abroad, salvor and the master or other person in charge of the property alleged to be salved shall each deliver to the consular officer or vice-admiralty judge there a statement verified on oath, specifying, so far as they respectively can, and so far as the particulars required apply to the case, (1.) The place, condition, and circumstances in which the said ship, cargo, or property was at the time when the services were rendered for which salvage is claimed : (2.) The nature and duration of the services rendered : And the salvor shall add to his statement, (3.) The proportion of the value of the said ship, cargo, and property, and of the freight which he claims for salvage, or the values at which he estimates the said ship, freight, cargo, and property respec- tively, and the several amounts that he claims for salvage in respect of the same : (4.) Any other circumstances he thinks relevant to the said claim : And the said master or other person in charge of the said ship, cargo, or property shall add to his statement, (3.) A copy of the certificate of registry of the said ship, and of the indorsements thereon, stating any change which (to his knowledge or belief) has occurred in the particulars contained in such certificate ; and stating also, to the best of his knowledge and belief, the state of the title to the ship for the time being, and of the incumbrances and certificates of mortgage or sale, if any, affecting the same, and the names and places of business of the owners and incum- brancers : (4.) The name and place of business or residence of the freighter (if any) of the said ship, and the freight to be paid for the voyage she is then on : (5.) A general account of the quantity and nature of the cargo at the time the salvage services were rendered : (6.) The name and place of business or residence of the owner of such cargo, and of me consignee thereof : (7.) The value at which the said master estimates the said ship, cargo, and property, and the freight respectively, or, if he thinks fit, in lieu of such estimated value of the cargo, a copy, of the ship's manifest : (8.) The amounts which the master thinks should be paid as salvage for the services rendered : (9.) An accurate list of the property saved, in cases where the ship is not saved: (10.) An account of the proceeds of the sale of the said ship, cargo, or property, in cases where the same or any of them are sold at such port as aforesaid: (11.) The number, capacities, and condition of the crew of the said ship at the time the said services were rendered : (12.) Any other circumstances he thinks relevant to the matters in question : (13.) A statement of his willingness to execute a bond, in the form in the table marked (W) in the Schedule hereto, in such amount as the said consular officer or vice-admiralty judge may fix. CCCCLXXXVII. The said consular officer or judge, as the case may be. Consular officer shall within four days aiter receiving the aforesaid statements, fix the amount <»• judge^to fix to be inserted in the said bond at such sum as he thinks sufficient to answer ^°™a bond is the demand for the salvage services rendered ; but such sum shall not exceed to be given, one-half of the value which m his estimation the said ship, freight, and cargo, or any parts thereof in respect of which salvage is claimed, are worth ; and the said consular officer or judge may, if either of the aforesaid state- ments is not delivered to him within the time hereby required, proceed ex parte, but he shall in no case under this Act require the cargo to be unladen ; and the said consular officer may in any proceeding imder this Act relating to salvage, take affidavits and receive affirmations. VOL. II. — s. 3 o 900 17 & 18 Vict. cap. 104. vm. , H. M. Ships. On master executing bond, the right of de- tention to cease. Provision for additional security in the case of ships owned by per- OCCOLXXXVIII. The said consular officer or judge shall send notice of the sum which he has so fixed as aforesaid to the said salvor and the said master ; and upon such master executing a bond in such form as aforesaid, with the said sum inserted therein, in the presence of the said officer or judge (who shall attest the same), and delivering the same to the said salvor, the right of the said salvor to detain or retain possession of the said ship, cargo, or property, or any of them, in respect of the said salvage claim, shall cease. CCCCLSXXIX. If the ship, cargo, or property in respect of which the claim for salvage is made is not owned by persons domiciled in her Majesty's dominions, the right of the salvor to detain or retain possession thereof shall not cease unless the master procures, in addition to the said Whom the bond shall bind. Court in which it is to be adju- dicated on. BOM recent OTit bond, such security for the due performance of the conditions thereof as the domSioiS^ * ^^^ officer or judge considers sufficient for the purpose, and places the same in the possession or custody of the said officer or judge, or, if the salvor so desires, in the possession or custody of the said officer or judge jointly with any other person whom the said salvor appoints for the purpose. Documents to be CCCCXC. The said consular officer or judge shall at the earliest oppor- senttolSngland. tunity transmit the said statements and documents so sent to him as raore- said, and a notice of the sum he has so fixed as aforesaid, to the high court of admiralty of England, or if the said salvor and the said master or other person in charge as aforesaid agree that the said bond shall be adjudicated upon by any vice-admiralty court, to such Court. CCCGXCI. The said bond shall bind the respective owners of the said ship, freight, and cargo, and their respective heirs, executors, and adminis- trators, for the salvage adjudged to be payable in respect of the said ship, freight, and cargo respectively. CCCCXCII. The said bond shall be adjudicated on and enforced by the high court of admiralty in England, or if the said salvor and master at the time of the execution of the said bond agree upon any vice-admiralty court, then by such vice- admiralty court ; and any such vice-admiralty court may in every proceeding under this Act have and exercise all powers and authorities whatsoever which the said high court of admiralty now has or at any time may have in any proceeding whatsoever before it ; and in cases where any security for the due performance of the conditions of the said bond has been placed in the possession or custody of the said consular officer or vioe-admiralty judge or of such officer or judge jointly with any other person, the person or persons having the custody of such seourily shaU respectively deal with the same in such manner as uie court that adjudicates on the bond directs. COCCXCIII. The said high court of admiralty shall have power to enforce any bond given in pursuance of this Act in any vice-admiralty court in any part of her Majesty's dominions ; and all courts in Scotland, Ireland, and the islands of Jersey, G-uernsey, Aldemey, Sark, and Man exercising admiralty jurisdiction shall, upon application, aid and assist the high court of admiralty in enforcing the said bonds. COCCXCIV. Any such salvor as aforesaid of any ship, cargo, or property who elects not to proceed under this Act shall have no power to detain the said ship, cargo, or property, but may proceed otherwise for the enforcement of his salvage claim as rf this Act had not been passed ; and nothing in this Act contained shall abridge or affect the rights of salvors, except in the cases by it provided for. CCCCXCV. AH bonds, statements, agreements and other documents made or executed in pursuance of the Eighth Part of this Act shall, if so made or executed out of the United Kingdom, be exempt from stamp duty. COCCXCVI. Every person who, in any proceeding under provisions forgery and false contained in the Eighth Part of this Act relating to salvage by her representations. Majesty's ships, forges, assists in forging, or procures to be forged, fraudulently alters, assists in fraudulently altering, or procures to be fraudulently altered, any document, and every person who in any such proceeding puts ofi or makes use of any such forged or altered document, knowing the same to be so forged or altered, or who in any such pro- ceeding gives or makes, or assists in giving or making, or procures to be given or made, any false evidence or representation, knowing the same to be false, shall be punishable with imprisonment, with or without hard labour, for any period not exceeding two years, or, ii summarily prosecuted Power of high court of admi- ralty- to enforce bonds. gaving clause. Documents free from duty. Punishment for Merchant Shipping Act. 901 and convicted, by imprisonment, -with or without hard labour, for any- period not exceedmg bIx months. SaVoageiQeneraV). THl. Salvagt COCOXCVII. Whenever services for which salvage is claimed are rendered Voluntary either by the commander or crew or part of the crew of any of her Majesty's If^^f^^,^ ships, or of any other ship, and the salvor voluntarily agrees to abandon his ghall have the lien upon the ship, cargo and property alleged to be salved, upon the master same effect as or other person in charge thereof entering into a written agreement attested ^^ ^""^ above by two witnesses to abide the decision of the said high court of admiralty ""^ ""^ ' or of any vice-admiralty court, and thereby giving security in that behalf to such amount as may ^e agreed on by the parties to the said agreement, such agreement shall bind the said ship and the said cargo and the freight pay- able therefor respectively, and the respective owners of the said ship, freight and cargo for the time being, and their respective heirs, executors and administrators, for the salvage which may be adjudged to be payable in respect of the said ship, cargo and freight respectively to the extent of the security so given as aforesaid, and may be adjudicated upon and enforced in the same manner as the bonds provided for by the Eighth Part of this Act, in the case of detention for salvage services rendered by her Majesty's ships ; and upon such agreement being made the salvor and the master or other person in charge as aforesaid shall respectively make such statements as are hereinbefore required to be made by them in case of a bond being given, except that suc^ statements need not be made upon oath ; and the salvor shall, as soon as practicable, transmit the said agreement and the said state- ments to the court in which the said agreement is to be adjudicated upon. CCOCXCVIII. Whenever the aggregate amovmt of salvage payable in Powers for respect of salvage services rendered in the United Kingdom has been finally 25"JjS^tv^^|iB. ascertained, and exceeds two hundred pounds, and whenever the aggregate diction to appor- amount of salvage payable in respect of salvage services rendered elsewhere tiou salvage, has been finally ascertained, whatever such amount may be, then if any delay or dispute arise as to the apportionment thereof, any court having admiralty jurisdiction may cause the same to be apportioned amongst the persons entitled thereto in such manner as it thinks just ; and may for that purpose, if it thinks fit, appoint any person to carry such apportionment into effect, and may compel any person in whose hands or under whose control such amount may be to distribute the same, or to bring the same into court, to be there dealt with as the court may direct, and may for the purpose aforesaid issue such monitions or other processes as it thinks fit. Miscellaneous. Miscellaneous. CCCCXCIX. All wreck, being foreign goods brought or coming into the Foreign goods United Kingdom or the Isle of Man, shall he subject to the same duties as if found derelict to the same were imported into the United Kingdom or the Isle of Man respec- ^^ dutieB°!i8 ° tively ; and if any question arises as to the origin of such goods, they shall on importation. be deemed to be the produce of such country as the commissioners of customs may upon investigation determine. D. The commissioners of customs and excise shall permit all goods, wares. Goods saved and merchandise saved from any ship stranded or wrecked on its homeward ftomsMps voyage to be forwarded to the port of its original destination, and all goods, J^^^^^^^ wares, and merchandise saved from any ship stranded or wrecked on its out- the ports of ward voyage to be returned to the port at which the same were shipped ; but their ori^al such commissioners are to take security for the due protection of the revenue destination, in respect of such goods, wares, and merchandise. DI. All matters and things that may in pursuance of the Eighth Part of Provision as to this Act be done by or to any justice, or any two justices, may in Scotland be certain terms in done also by or to the sheriff of the county, including the sheriff substitute ; °'^">"'"'"' and the expression "lord or lady of a manor " shall in the Eighth Part of this Act, so far as regards Scotland, include "heritable proprietor duly infeft." 3o2 902 17 & 18 Vict. cap. 104. IX. Application. PART IX. T.TA-BTT.wv TO ShEPOWKBES (j). Application. Application of DII. The Ninth Part of this Act shall apply to the whole of her Majesty's Part IX. of Act. dominions. Limitation of Liability, Owner not liable in respect of certain articles. Provision for separate losses (r). Limitation of Liability. Dili. No owner of any sea-going ship or share therein shall he liable to make good any loss or damage that may happen without his actual fault or privity of or to any of the following things ; (that is to say,) (1.) Of or to any goods, merchandise, or other things whatsoever taken in or put on board any suoh ship, by reason of any fire happening on board suoh ship : (2.) Of or to any gold, silver, diamonds, watches, jewels, or precious stones taken in or put on board any such ship, by reason of any robbery, embezzlement, making away with or secreting thereof, unless the owner or shipper thereof has, at the time of shipping the same, inserted in Ms bills of lading or otherwise declared in writing, to the master or owner of suoh ship the true nature and value of suoh articles. To any extent whatever. BIV. Repealed, 25 & 26 Vict. c. 63, s. 2, and see s. 54 of that statute, post. DV. Repealed, 25 & 26 Vict. c. 63, s. 2. DVI. The owner of every sea-going ship or share therein shall be liable in respect of every such loss of life (s), personal injury, loss of or damage to goods as aforesaid arising on distinct occasions to the same extent as if no other loss, injury or damage had arisen. JUode of Pro.' cedure. Incase of loss of life or personal injury, board of trade may direct pro- ceedings. Either party may require question to be tried by a special jury. Mode of Frocedure. DVII. Whenever any suoh liability as aforesaid has been or is alleged to have been incurred in respect of loss of life or personal injury, the board of trade may, in its discretion, after giving not less than three days' notice by post or otherwise to the party to be made defendant or defender, by warrant sealed with the seal of such board or signed by one of its secretaries or assistant secretaries, require the sheriff having jurisdiction over any place in the United Kingdom to summon a jury at a time and place to be specified in such warrant for the purpose of determining the following question ; (that is to say,) The number, names and descriptions of all persons killed or injured by reason of any wrongful act, neglect or default : And upon the receipt of such warrant the sheriff shaU summon a jury of twenty-four indifferent persons, duly qualified to act as common jurymen in the superior courts, to meet at suoh time and place as aforesaid. DVIII. If either party to the inquiry desire any such question as aforesaid to be tried before a special jury, suoh question shall be so tried, provided that notice of such desire, if coming from the other party, is given to the board of trade before it has issued its warrant to the sheriff ; and for that purpose the board of trade shall, by its warrant to the sheriff, require him to nominate a special jury for such trial ; and thereupon the sheriff shall, as soon as con- veniently may be after the receipt by him of such warrant, summon both the parties to appear before him by themselves or their attorneys or agents at some convenient time and place appointed by him for the purpose of nominating a special jury ; and at the place and time so appointed the sheriff shall proceed to nominate and strike a special jury in the manner in which suoh juries are required by the laws for the time being in force to be nominated or struck by the proper officers of the superior courts ; and the sheriff shall appoint a day and shall on the day so appointed proceed to (?) Amended by 26 & 26 Vict. 0. 63, s. 64, infra. (r) See 63 Geo. 3, o. 169, b. 53. (s) 25 & 26 Vict. 0. 63, s. 66, infra. Mekchant Shipping Act. 903 reduce the said special jury to the number of twenty, in the manner used IX. Hoit of and accustomed by the proper officers of the superior courts. Procedure. DIX. The folloiring provisions shall be applicable to the conduct of Provisions for proceedings by the board of trade ; (that is to say,) conduct of pro- (1.) The sheriff shall preside at such inquiry ; and the board of trade shall eeedings. be deemed in England and Ireland to be the plaintiff, and in Scotland the pursuer, both of which terms are hereinafter included in the term plaintiff, with power to appoint any agent to act on its behalf, and shall have all such rights and privileges as. the plaintiff is entitled to in actions at law ; and the owner or owners of the ship or ships by whom such liability as last aforesaid is alleged to have been incurred shall be deemed in England and Ireland to be the defendant, and in Scotland the defender, both of which terms are hereinafter included in the term defendant : (2.) Not less than ten days' notice of the time and place of the inquiry shall be served by the board of trade on the defendant : (3.) Service on the master of any ship shall be deemed good service on the owner thereof, and the master shall, in respect of the proceedings on such inquiry, be deemed the agent and representative of the owner, with power to appear for him on such inquiry, and to do all matters and things which he might himself have done : (4.) If the defendant does not appear at the time of such inquiry, the same shall be proceeded with as if he had appeared, upon due proof of service of notice having been made on him in pursuance of this Act : (5.) The empannelHng of the jury and the summoning and attendance of witnesses shall be conducted and enforced in England and Ireland in manner provided by the Lands Clauses Consolidation Act, 1845, in cases of disputed compensation as to land, and in Scotland in manner provided by the Lands Clauses Consolidation (Scotland) Act, 1 845, in like cases, or as near thereto as circumstances permit ; and all provisions in the said acts having reference to cases where any question of dispute and compensation requires to be determined by the verdict of a jury shall, with the requisite alterations, be considered as incorporated with this Act, and to have reference to cases where the question of the liability of any owner in respect of any such accident as aforesaid require to be determined by the verdict of a jury : (6.) In England and Ireland the sheriff shall, if the board of trade so requires, or if the defendant so requires and the board of trade consents thereto, appoint as assessor a barrister at law of competent knowledge and standing : (7.) The costs incurred by all parties in and incidental to any such inquiry as aforesaid shall in England and Ireland be taxed by the master of one of her Majesty's superior courts of common law as between attorney and client, and in Scotland by the auditor of the court of session as between agent and client ; and shaU, if the verdict in any inquiry is in favour of the plaintiff, be paid by the defendant, but if such verdict is in favour of the defendant, be paid by the board of trade out of the mercantile marine fund : (8.) The payment of all damages and costs in any such inquiry as afore- said shall, upon application made to such superior court as afore- said by the party entitled thereto, be enforced by the rule or order of such court or a judge thereof, or otherwise as such court or judge thinks fit : (9.) The hoard of trade may make any compromise it thinks fit as to the damages payable in respect of personal injury, or of the death of any person ; and any damages received in pursuance of such compromise shall, so far as the same extend, be applied in the same manner and be subject to the same rules as if the same were damages recovered on an inquiry instituted by the board of trade. DX. The following rules shall be observed as to the damages recovered in Eules as to any such inquiry, and the application thereof ; (that is to say,) aamages and (1.) The damages payable in each case of death or injury shall be assessed tSS. at thirty pounds : (2.) The damages found due on any such inquiry as aforesaid shall be the 904 17 & 18 Vict. cap. 104, rx. Uodeof l*roeedure. Any person wlio Tnth the amount of statutory damage may , brin^ an action on ms own account. If board of trade decline to institute proceedings individuals may bring actions. Proceedings by board of trade after refusal. Proceedings in case of several claims being made on owner of ship. first charge on the aggregate amount for whioh the owner is liable, and shall be paid thereout in priority to all other claims : (3.) All such damages as aforesaid shall be paid to her Majesty's paymaster general, and shall be distributed and dealt -with by him in such manner as the board of trade directs ; and in direoting such distribu- tion the board of trade shall have power in the first place to deduct and retain any costs incidental thereto ; and in the next place, as regards the sums paid in respect of injuries, shall direct payment to each person injured of such compensation, not exceeding in any case the statutory amount, as the said board thinks fit ; and as regards the sums paid in respect of deaths shall direct payment thereof for the benefit of the husband, ■wife, parent and child of the deceased, or any of them, in such shares, upon such evidence, and in such manner as the said board thinks fit : [i.) The board of trade shall refund to the owner any surplus remaining under its control after making such distribution as aforesaid, and the sum so refunded shall form part of the residue hereinafter men- tioned : (6.) The board of trade shall not, nor shall any person acting under it, be liable to any action, suit, account, claim or demand whatsoever for or in respect of any act or matter done, or omitted to be done, in the distribution of such damages as aforesaid : (6.) If the amount paid to her Majesty's paymaster general in manner aforesaid is insufficient to meet the demands upon it, the several claims thereon shall abate proportionally. DXI. After the completion of such inquiry as aforesaid, if any person injured estimates the damages payable in respect of such injury, or if the executor or administrator of any deceased person estimates the damages payable in respect of his death at a greater sum than such statutory amount, or, in case of a compromise having been made by the board of trade, than the amount accepted by such board by way of compensation for such injury or such death as aforesaid, the person so estimating the same shall, upon repaying or obtaining the repayment by the board of trade to the owner of the amount paid by him to the board of trade in respect of such injury or death, be at liberty to bring an action for the recovery of damages in the same manner as if no power of instituting an inq\iiry had hereinbefore been given to the board of frade, subject to the following proviso ; (that is to say, ) that any damages recoverable hj such person shall be payable only out of the residue, if any, of the aggregate amount for which the owner is liable, after deducting all sums paid to her Majesty's paymaster general in manner afore- said ; and if the damages recovered in such action do not exceed double the statutory amount, such person shall pay to the defendant in such action all the costs thereof, such costs to be taxed in England, and Ireland as between attorney and client, and in Scotland as between agent and client. DXII. In oases where loss of life or personal injury has occurred by any accident in respect of which the owner of any such ship as aforesaid is or is alleged to be liable in damages, no person shall be entitled to bring any action or institute any suit or other legal proceeding in the United Kingdom, until the completion of the inquiry (if any) instituted by the board of trade, or until the board of trade has refused to institute the same ; and the board of trade shall, for the purpose of entitling any person to bring an action or institute a suit or other legal proceeding, be deemed to have refused to institute such inquiry whenever notice has been served on it by any person of his desire to bring such action or institute such suit or other legal pro- ceeding, and no inquiry is instituted by tiie board of trade in respect of the subject-matter of such intended action, suit or proceeding for the space of one month after the service of such notice. DXIII. Whenever the board of trade, having refused in manner aforesaid to institute any inquiry, g,fterwards determines to institute the same, the damages and costs (if any) recovered on such inquiry shall be payable rateably with and not in priority to the costs and damages recovered in any other action, suit or legal proceeding. DXIV. In cases where any liability has been or is alleged to have been incurred by any owner in respect of loss of life, personal injury or loss of or damage to ships, boats or goods, and several claims are made or apprehended in respect of such liability, then subject to the right hereinbefore given to the Merchant Shipping Act. 905 board of trade of recorermg damages in the United Kingdom in respeot of loss IX. Made of of life or personal injnry, it shall be lawful in England {i) or Ireland {u) for -Pr ocedu re. the Hi^ Court of Chancery, and in Scotland for the Court of Session, and in any British possession for any competent court, to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability subject as aforesaid, and for the distribution of such amount rateably amongst the several claimants, with power for any such court to stop all actions and suits pending in any other court in relation to the same subject-matter ; and any proceeding entertained by such Court of Chancery or Court of Session, or other competent court, may be conducted in such manner and subject to such regulations as to making any persons interested parties to the same, and as to the exclusion of any claimants who do not come in within a certain time, and as to requiring security from the owner, and as to payment of costs, as the court thinks just. DXV. All sums of money paid for or on account of any loss or damage in Money paid fM respeot whereof the liability of the owners of any ship is limited by the Ninth be^^unted for Part of this Act, and all costs incurred in relation thereto, may be brought between part into account among part owners of the same ship in the same manner as owners, money disbursed for the use thereof. Saving Clause. Saving Clause. DXVI. Nothing in the Ninth Part of thia Act contained shall he eon- Saving clause, strued — To lessen or take away any liability to which any master or seaman, being also owner or part owner of the ship to which he belongs, is subject in his capacity of master or seaman ; or To extend to any British ship not being a recognized British ship within the meaning of this Act. PAETX. Leoaii Pbocedube (:;;). PART XI. MiSOELLAIIEOUS. Table V.— (See Section 465.) !Fee3 and Eeitoiieeaiion op EEOErraES. £ «. d. For every examination on oath instituted by a receiver with respect to any ship or boat which may be or may have been in distress, a fee not exceeding 10 But so that in no case shall a larger fee than two pounds be charged for examination taken in respect of the same ship and the same occurrence, whatever may be the number of the deponents. (t) See 24 Vict. o. 10, s. 13. {x) See 18 & 19 Vict. o. 91, s. 21, \u) 30 & 31 Viot. o. 114, 8. 36. infra. 906 18 & 19 Vict. cap. 91. For every report required to Ibe, sent by the receiver to the seore- £ taiy of the committee for managing the affairs of Lloyd's in London, the sum of . . . . ■ ■ • ■ .0 For wreck taken by the receiver into his custody, a percentage of five per cent, upon the value thereof, But so that in no case shall the whole amount of percentage so payable exceed twenty pounds. In cases where any services are rendered by a receiver, in respect of any ship or boat in distress, not being wreck, or ia respect of the cargo or other articles belonging thereto, the following fees instead of a percentage ; (that is to say,) If such ship or boat with her cargo equals or exceeds in value six hundred pounds, the sum of two pounds for the £rst, and the sum of one pound for every subsequent day during which the receiver is employed on such service ; but if such ship or boat vrith her cargo is less in value than six hundred pounds, one moiety of the above-mentioned sum. 10 Table W.— (See Section 486.) Salvaqe Bond. [N'.B. — Any of the Particulars not Mown, or not required, by reason of the Claim being only against the Cargo, $c., may be omitted.'] Whbbeab certain salvage services are alleged to have been rendered by the ship [insert names of ship and of commander!, commander, to the merchant ship [insert names of ship and master], master, belonging to [name of place of business or residence of owner of ship], freighted by [ s-n the relief of distressed seamen and apprentices, being subjects of her Majesty, which are contained in the said sections of the said Act, and in this section shall extend to such seamen and apprentices, not being subjects of her Majesty, as are reduced to distress in foreign parts by reason of their having been shipwrecked, discharged, or left behind from any British ship ; subject nevertheless to such modifications and directions concerning the cases in which relief is to be given to such foreigners, and the country to which they are to be sent, as the board of trade may, under the circumstances, think fit to make and issue. XVII. The enactment of the Merchant Shipping Act, 1854, relating to ^^5°'°°"' saving banks shall apply to all seamen, and to their wives and famSies, banks extended whether such seamen belong to the royal navy or to the merchant service, or to seamen in the to any other sea service. Si?^- 1^ * 18 ' Vict. 0. 104, (y) See 36 & 37 Vict. c. 85, s. 3, {2) See 35 & 36 Vict. 0. 73, s. 4, °' ^^' infra. infra. 908 18 & 19 Vict. cap. 111. Additional XVIII. Any naval court summoned, under tte prOTiBions of the Merchant comS^ 17°& W Shipping Act, 1864, to hear any complaint touching the conduct of the Vict. c. 104, master or any of the crew of any ship, shall, in addition to the powers given BB. 260 to 266. to it by the said Act, have power to try the said master or any of the said crew for any offences against the Merchant Shipping Act, 1854, in respect of which two justices would, if the case were tried in the United Kingdom, have power to convict summarily, and by order duly made to inflict the same punishments for such offences which two justices might in the case aforesaid inflict upon summary conviction ; provided, that in cases where an offender is sentenced to imprisonment the sentence shall be confirmed in writing by the senior naval or consular ofSoer present at the place where the court is held, and the place of imprisonment, whether on land or on board ship, shall be approved by him as a proper place for the purpose, and copies of all sentences made by any naval court summoned to hear any such com- plaint as aforesaid shall be sent to the commander-in-chief or senior naval CaZams' and °^'^ °* *^® station. Salvage. XIX. Whenever any articles belonging to or forming part of any foreign ship which has been wrecked on or near the coasts of the United Kingdom, ^ w'^ ^h^f °' °^ belonging to or forming part of the cargo thereof, are found on or near ShipphigAot ^""^ coasts, or are brought into any port in the United Kingdom, the consul 1864. ' general of the country to which such ship, or, in the case of cargo, to which Qie owners of such cargo, may have belonged, or any consular officer of such ^fordm Sob country, authorized in that behalf by any treaty or agreement with such consul ^eral to country, shall, in the absence of the owner of such ship or articles, and of be deemed agent the master or other agent of the owner, be deemed to be the agent of the of owner. owner, so far as relates to the custody and disposal of such articles. Kemuneration XX. In cases where services are rendered by officers or men of the coast for services by guard service in watching or protecting shipwrecked property, then, unless ^ B^ ■ it can be shown that such services have been declined by the owner of such property or his agent at the time they were tendered, or that salvage has been claimed' and awarded for such services, the owner of the shipwrecked property shall pay in respect of the said services remuneration according to a scale to be fixed by the board of trade, so, however, that such scale shall not exceed any scale by which payment to officers and men of the coast guard for extra duties in the ordinary service of the commissioners of customs is for the time being regulated ; and such remuneration shall be recoverable by the same means and shall be paid to the same persons and accounted for and applied in the same manner as fees received by receivers appointed under the Merchant Shipping Act, 1864. 18 & 19 Vict. c. 111. An Ad to amend the Law relating to Sills of Lading. [IKA August, 1855.] ■Webebas by the custom of merchants a bill of lading of goods being transferable by indorsement the property in the goods may thereby pass to the indorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expe- dient that such rights should pass with the property : and whereas it &e- quently happens that the goods in respect of which bills of lading purport to be signed have not been laden on board, and it is proper that such bills of lading in the hands of a bon^ fide holder for value should not be ques- tioned by the master or other person signing the same on the ground of the goods not having been laden as aforesaid : be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the autiiority of the same, as follows : Blglita under I. Every consignee of goods named in a bUl of lading, and every indorsee vefft ki coM^ee °* * '"^ lading to whom the property in the goods therein mentioned shall or indorsee. pass, upon or by reason of such consignment or indorsement, shall have Mercantile Law Amendment Act. 909 transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself. II. Nothing herein contained shall prejudice or affect any right of stop- Not to affect page in transitu, or any right to claim freight against the original shipper rigM of stop- or owner, or any liability of the consignee or indorsee by reason or in conse- orSms to^ guenoe of his being such consignee or indorsee, or of his receipt of the goods freight. by reason or in consequence of such consignment or indorsement. III. Every bill of lading in the hands of a consignee or indorsee for BUI of lading in valuable consideration representing goods to have been shipped on board a tands of con- vessel, shall be conclusive evidence of such shipment as against the master oomlusive evi- or other person signing the same, notwithstanding that such goods or some dence of the part thereof may not have been so shipped, unless such holder of the bill of shijiment as lading shall have had actual notice at the time of receiving the same that the ^*™®* ™°*'^> goods had not been in fact laden on board : Provided that the master or ' . other person so signing may exonerate himself in respect of such misrepre- ^°'"*">' sentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom iiie holder claims. 18 & 19 Vict. o. 119. An Act to amend the Law relating to carriage of Passengers hy Sea. [14 chant, their factors or servants, shall be commenced and sued within six Aoooimts." years after the cause of such actions or suits, or when such cause has already arisen, then within six years after the passing of this Act ; and no claim in respect of a matter which arose more than six years before the commence- ment of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit. X. No person or persons who shall be entitled to any action or suit with Absence beyond respect to which the period of limitation within which the same shall be sonmento?"" brought is fixed by the Act of the twenty-first year of the reign of King creditor not a James the First, chapter sixteen, section three, or by the Act of the fourth diaability. year of the reign of Queen Anne, chapter sixteen, section seventeen, or by the Act of the fifty-third year of the reign of King George the Third, chapter one hundred and twenty-seven, section five, or by the Acts of the third and fourth years of the reign of King WiUiam the Fourth, chapter twenty-seven, sections forty, forty-one and forty-two, and chapter forty-two, section three, or by the Act of the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, section twenty, shall be entitled to any time within which to commence and sue such action or suit beyond the period so fixed for the same by the enactments aforesaid, by reason only of such person or some one or more of such persons, being at the time of such cause of action or suit accrued beyond the seas, or in the cases in which by virtue of any of the aforesaid enactments imprisonment is now a dis- ability, by reason of such person or some one or more of such persons being imprisoned at the time of such cause of action or suit accrued. XI. Where such cause of action or suit with respect to which the period Period of limita- of limitation is fixed by the enactments aforesaid, or any of them, lies against ''°? !"J?"if " two or more joint debtors, the person or persons who shall be entitled to the jq thekingdom same shall not be entitled to any time within which to commence and sue though some any such action or suit against any one or more of such joint debtors who beyond seas, shall not be beyond the seas at the time such cause of action or suit accrued, by reason only that some other one or more of such joint debtors was or were at the time such cause of action accrued beyond the seas, and such person or Judgment re- persons so entitled as aforesaid shall not be barred from commencing and covered against suing any action or suit against the joint debtor or joint debtors who was or {,a'J'to^nro'"d-° were beyond seas at the time the cause of action or suit accrued after his ing against or their return from beyond seas, by reason only that judgment was already others beyond recovered against any one or more of such joint debtors who was not or were '^ "■"^^ "'^'r not beyond seas at the time aforesaid. "^^ """' XII. No part of the United Kingdom of Great Britain and Ireland, nor Definition of the Islands of Man, Guernsey, Jersey, Alderuey, and Sark, nor any islands "bejiondseas," adjacent to any of them, being part of the dominions of her Majesty, shaU T^*™ * ?L^ , be deemed to be beyond seas within the meaning of the Act of the fourth and this^Art. *" fifth years of the reign of Queen Anne, chapter sixteen, or of this Act. XIII. In reference to the provisions of the Acts of the ninth year of the Provisions of reign of King George the Fourth, chapter fourteen, sections one and eight, ^ '^?°- *i "• ^^k and the sixteenth and seventeenth years of the reign of her present Majesty, le' & i? ■Vict'!° chapter one hundred and thirteen, sections twenty-four and twenty-seven, c. 113, ss. 24 and an acknowledgment or promise made or contained by or in a writing signed 27, extended to by an agent of the party chargeable thereby, duly authorised to make such J^nts by agents, acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself. XIV. In reference to the provisions of the Acts of the twenty-first year of Part payment the reign of King James the First, chapter sixteen, section three, and of the py ™^ oontrao- Act of the third and fourth years of the reign of King WilHani the Fourth, ^VentbSb^ chapter forty-two, section three, and of the Act of the sixteenth and certain statutes seventeenth years of the reign of her present Majesty, chapter one hundred pf limitations and thirteen, section twenty, when there shall be two or more co- contractors anotheroon- or co-debtors, whether bound or liable jointly only or jointly and severally, tractor, &o.' or executors or administrators of any contractor, no such co-contractor or co-debtor, executor or administrator, shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of payment of any principal, interest, or other money, by any other or others of such co- contractors or co-debtors, executors or administrators. 912 24 & 25 Vict. cap. Eules and regulations may be made and writs and pro- ceedings framed for the purposes of this Act. Short title. Extent of Act. XV. In order to enable the superior courts of common law at Westminster and Dublin, and the judges thereof respectively, to make rules and regulations, and to frame writs and proceedings, for the purpose of giving efiect to this Act, the two hundred and twenty-third and two hundred and twenty-fourth sections of "The Common Law Procedure Act, 1862," shall, so far as this Act is to take effect in England, and the two hundred and thirty-third and two hundred and fortieth sections of "The Common Law Procedure Amend- ment Act (Ireland), 1853," shall, so far as this Act is to take effect in Ireland, be incorporated with this Act, as if those provisions had been severally herein repeated and made to apply to this Act (a) . XVI. In citing this Act it shall be sufficient to use the expression ' ' The Mercantile Law Amendment Act, 1866." XVII. Nothing in this Act shall extend to Scotland (J). 20 & 21 Vict. o. 54. An Act to make letter Provision for the Punishment of Frauds committed hy Trustees, Bankers, and other Persons intrusted with Property (c). [17«A August, 1857.] 24 ViOT. c. 10. An Act to extend the Jurisdiction and improve the Practice of the High Court of Admiralty. [17tt May, 1861.] Agent, banker, &c., embezzling money or selling securities, Sec, intrusted to or goods, &c., intrusted to him for safe custody. 24 & 25 ViOT. 0. 96. An Act to consolidate and amend the Statute Law of England and Ireland relating to Larceny and other similar Offences. [eth August, 1861.] As to frauds by agents, bankers or factors : 75. Whosoever, having been intrusted, either solely, or jointly with any other person, as a -banker, merchant, broker, attorney or other agent, wili any money or security for the payment of money, with any direction in writing to apply, pay or deliver such money or security or any part thereof respectively, or the proceeds or any part of the proceeds of such security, for any purpose, or to any person specified in such direction, shall, in violation of good faith, and contrary to the terms of such direction, in anywise con- vert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so intrusted, such money, security, or proceeds or any part thereof respectiTely ; and whosoever, having been in- trusted, either solely, or jointly with any other person, as a banker, merchant, broker, attorney or other agent, with any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of the. United Kingdom, or any part thereof, or of any foreign state, or in any stock or fund of any body corporate, com- pany or society, for safe custody or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, shall, in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been intrusted to him, sell, negotiate, trans- fer, pledge, or in any manner convert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so intrusted, such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of (a) See 42 & 43 Vict. o. 78, s. 29. (i) See 19 & 20 Vict. o. 60. (c) Repealed by 24 & 26 Vict. c. 95, s. 1. Larceny, etc. 913 attorney shall relate, or any part thereof, shall be guilty of a misdemeanor, Fumshment. aad being' convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years and not leas than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confine- ment ; but nothing in this section contained relating to agents shall affect Not to affect any trustee in or under any instrument whatsoever, or any mortgagee or any trustees or mort- property, real or personal, in respect of any act done by such trustee or B^^es; mortgagee in relation to the property comprised in or aflfected by any such trust or mortgage ; nor shall restrain any banker, merchant, broker, attorney nor bankers, &c. or other agent from receiving any money which shall be or become actually reS money due and payable upon or by virtue of any valuable security, according to the y"! ."'^ *™""" tenor and effect thereof, in such manner as he might have done if this Act had not been passed ; nor for selling, transferring or otherwise disposing of or disposing of any seonrities or effects in his possession upon which he shall have any Uen, securities on claim or demand entitlinjj him by law so to do, unless such sale, transfer or ^ Uen *''^^ ''*™ other disposal shall extend to a greater number or part of such securities or effects than shall be requisite for satisfying such Hen, claim or demand. 76. "Whosoever being a banker, merchant, broker, attorney or agent, and Bankers, See., being intrusted, either solely, or jointly with any other person, with the pro- frauduimtly perty of any other person for safe custody, shall, with intent to defraud, sell, pro™fty m- negotiate, transfer, pledge or in any manner convert or appropriate the same trusted to their or any part thereof to or for his own use or benefit, or the use or benefit of care. any person other than the person by whom he was so intrusted, shall be giulty of a, misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned. 77. Whosoever, being intrusted, either solely, or jointly with any other Persons under person, with any power of attorney for the sale or transfer of any property, powers of at- shall fraudulently sell or transfer or otherwise convert the same or any part lently'seSng'"" thereof to his own use or benefit, or the use or benefit of any person other property, than the person by whom he was so intrusted, shall be guilty of a misde- meanor and being convicted thereof shall be liable, at the discretion of the' court, to any of the punishments which the court may award as hereinbefore last mentioned. 78. Whosoever, being a factor or agent intrusted, either solely, or jointly Factors obtain- "writh any other person, for the purpose of sale or otherwise, with the posses- ing advances on sion of any goods, or of any document of title to goods, shall, contrary to or the property of without the authority of his principal in that behalf, for his own use or bene- ^"^ principals, fit, or the use or benefit of any person other than the person by whom be was so intrusted, and in violation of good faith, make any consignment, deposit, transfer or delivery of any goods or document of title so intrusted to him as in this section before mentioned, as and by way of a pledge, lien or security for any money or valuable security borrowed or received by such factor or agent at or before the time of makmg such consignment, deposit, transfer or delivery, or intended to be thereafter borrowed or received, or shall, contrary to or without such authority, for his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted, and in violation of good faith, accept any advance of any money or valuable secu- rity on the faith of any contract or agreement to consign, deposit, transfer or deliver any such goods or document of title, shall be guilty of a misde- meanor, and being convicted thereof shall he liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned ; and every clerk or other person who shall knowingly and Oerks wilfully wilfully act and assist in making any suoh consignment, deposit, transfer or assisting. delivery, or in accepting or procuring such advance as aforesaid, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the ttisoretion of the court, to any of the same punishments : Provided, that no Cases excepted such factor or agent shall be liable to any prosecution for consigning, de- where the pledge positing, transferring or deUvering any suoh goods or documents of title, in ^famoun1;°Sf case the same shall not be made a security for or subject to the payment of tjigir Uen. any greater sum of money than the amount which at the time of such con- signment, deposit, transfer or delivery was justly due and owing to such agent from his principal, together with the amount of any bUl of exchange dra-wn by or on account of such principal, and accepted by such factor or agent. 914 24 & 25 Vict. cap. 96. Definitions of terms: *• intrusted :" "pledge:" •advance:" " contract or agreement:" ** advance." Possession to be evidence of intrusting. Trustees, fraudulently dis- posing of pro- perty, guilty of a misdemeanor. No prosecutiozi shall be com- menced vnthoui tbe sanction of some judge or the attorney- general. Directors, &c. of any body cor- porate or public company fraudulently appropriating property ; or keeping fraudulent ac- counts; or "wilfully de- stroying books, &c.; 79. Any factor or agent intrusted as aforesaid, and possessed of any such document of title, whether derived immediately from the owner of such goods or obtained by reason of such factor or agent having been intrusted with the possession of the goods, or of any other document of title thereto, shall be deemed to have been intrusted with the possession of the goods represented by such document of title ; and every contract pledging or giving a lien upon such document of title as aforesaid shall be deemed to be a pledge of and lien upon the goods to which the same relates ; and such factor or agent shall he deemed to be possessed of such goods or document, whether the same shall be in his actual custody, or shall be held by any other person subject to his con- trol, or for him or on his behalf ; and where any loan or advance shall be bona fide made to any factor or agent intrusted with and in possession of any such goods or document of title, on the faith of any contract or agreement m writing to consign, deposit, transfer or deliver such goods or document of title, and such goods or document of title shall actually be received by the person making such loan or advance, without notice that such factor or agent was not authorised to make such pledge or security, every such loan or advance shall be deemed to be a loan or advance on the security of such goods or document of title within the meaning of the last preceding section, though such goods or document of title shall not actually be received by the person making such loan or advance till the period subsequent thereto ; and any contract or agreement, whether made direct with such factor or agent, or with any clerk or other person on his behalf, shall be deemed a contract or agreement with such factor or agent ; and any payment made, whether by money or bill of exchange or other negotiable security, shall he deemed to be an advance within the meaning of the last preceding section ; and a factor or agent in possession as aforesaid of such goods or document shall be taken, for the purposes of the last preceding section, to have been intrusted there- with by the owner thereof, unless the contrary be shown in evidence. 80. Whosoever, being a trustee of any property for the use or benefit, either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same or any part thereof to or for his own use or benefit, or the use or benefit of any person other than such person as aforesaid, or for any purpose other than such public or charitable purpose as aforesaid, or otherwise dispose of or destroy such property or any part thereof, shall be gruilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last men- tioned : Provided that no proceeding or prosecution for any offence included in this section shall be commenced without the sanction of her Majesty's attorney-general, or, in case that office be vacant, of her Majesty's sofloitor- general : Provided, also, that where any civil proceedings shall have been taken against any person to whom the provisions of this section may apply, no person who shall have taken such civil proceeding shall conmience any prosecution under this section without the sanction of the court or judge before whom such civil proceeding shall have been had or shall be pending. 81. Whosoever, being a, director, member or public officer of any body corporate or public company, shall fraudulently take or apply for his own use or benefit, or for any use or purposes other than the use or purposes of such body corporate or public company, anj- of the property of such body corporate or public company, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned. 82. Whosoever, being a director, public officer or manager of any body corporate or public company, shall as such receive or possess himself of any of the property of such body corporate or public company otherwise than in payment of a just debt or demand, and shall, with intent to defraud, omit to make or to cause or direct to be made a full and true entry thereof in the books and accounts of such body corporate or public company, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the punishments which the court may award as herein- before last mentioned. 83. Whosoever, being a director, manager, public officer or member of any body corporate or public company, shall, with intent to defraud, destroy, alter, mutilate or falsify any book, paper, writing or valuable security belonging to the body corporate or public company, or make or concur in the Merchant Shipping Amendment Act. 915 making of any false entry, or omit or concur in omitting any material particular, in any book of account or other document, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the punishments which the court may award, as hereinbefore last mentioned. 84. Whosoever, being a director, manager or public officer of any body or publishing corporate or public company, shall make, circulate or publish, or concur in SJJL*"^^^ making, circulating, or publishing, any written statement or account which '''™ ' he shall know to be false in any material partieiilar, with intent to deceive or defraud any member, shareholder or creditor of such body corporate or public company, or with intent to induce any person to become a shareholder or partner therein, or to intrust or advance any property to such body corpo- rate or public company, or to enter into any security for the benefit thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of 9ie punishments which the court may award, as hereinbefore last mentioned. 85. Nothing in any of the last ten preceding sections of this Act contained No person to be shall enable or entitle any person to refuse to make a full and complete dis- ^''^'"Pt f™™ . I T.M1 • "i i i- ^ . , answering ques- covery by answer to any bill m equity, or to answer any question or inter- tions in any rogatory in any civil proceeding in any court, or upon the hearing of any court, but no matter in bankruptcy or insolvency ; and no person shall be liable to be con- Person making a victed of any of the misdemeanors in any of the said sections mentioned by o^pSsmypTO- any evidence whatever in respect of any act done by him, if he shall at any ceeding to be time previously to his being charged with such offence have first disclosed liable to prose- such act on oath, in consequence of any compulsory process of any court of ™tion. law or equity, in any action, suit or proceeding which shall have been bon^ fide instituted by any party aggrieved, or if he shaU have first disclosed the same in any compidsory examination or deposition before any court upon the hearing of any matter in bankruptcy or insolvency. 86. Nothing in any of the last eleven preceding sections of this Act con- ^o remedy at tained, nor any proceeding, conviction or judgment to be had or taken thereon ^^be'a^SeS. against any person under any of the said sections, shall prevent, lessen or impeach any remedy at law or in equity which any party aggrieved by any offence against any of the said sections might have had if this Act had not been passed ; but no conviction of any such offender shall be received in evi- dence in any action at law or suit in equity against him ; and nothing in the Convictions said sections contained shall affect or prejudice any agreement entered into ^^|f ^ evi-^ or security given by any trustee, having for its object the restoration or dence in civil repayment of any trust property misappropriated. suits. 87. No misdemeanor against any of the last twelve preceding sections of Certain misde- this Act shall be prosecuted or tried at any court of general or quarter session moMiors not of the peace. SS^'.^'''^'" 25 & 26 Vict. c. 63. An Act to amend " The Merchant Shipping Act, 1854," " The Merchant Shipping Act Amendment Act, 1855," and " The Customs Consolida- tion Act, 1853." I29th July, 1862.] Wheebas it is expedient further to amend " The Merchant Shipping Act, 17 & 18 Tiot. 1854," "The Merchant Shipping Act Amendment Act, 1855," and "The c.l04. Customs Consolidation Act, 1853 : " Be it enacted by the Queen's most ex- ^^^ ^^ ^"''■ cellent Majesty, by and with the advice and consent of the lords spiritual jg ^'u yj^t and temporal, and commons in this present parliament assembled, and by the c. 107. authority of the same, as follows : 1. This Act may be cited as " The Merchant Shipping Act Amendment Short title. Act, 1862," and shall be construed with and as part of " The Merchant Shipping Act, 1854," hereinafter termed the principal Act. 2. The enactments described in table (A) in the schedule to this Act, shall Enactments in be repealed as therein mentioned, except as to any liabilities incurred before Table (A) re- such repeal. pealed. VOL. II. S. 3 P 916 25 & 26' Vict. CAP. 63. EcLuities not excluded by Herchant Shipping Act. Tonnage rate3 under local Ac1:s may be levied on the registered tonnage. Megistry and Measurement of Tonnage {Fart II. of Merchant Skipping Act, 1854). 3. It is hereby declared that the expression "beneficial interest," when- ever used in the Second Part of the principal Act, includes interests arising under contract and other equitable interests ; and the intention of the said Act is that, without prejudice to the provisions contained in the said Act for preventing notice of trusts from being entered in the register book or received by the registrar, and without prejudice to the powers of disposition and of giving receipts conferred by the said Act on registered owners and mort- gagees, and without prejudice to the provisions contained in the said Act relating to the exclusion of unqualified persons from the ownership of British ships, equities may be enforced against owners and mortgagees of ships in respect of their interest therein, in the same maimer as equities may be enforced against them in respect of any other personal property (a). 4. Any body corporate or persons having power to levy tonnage rates on ships may, if they think fit, with the consent of the board of trade, levy such tonnage rates upon the registered tonnage of the ships as determined by the rules for the measurement of tonnage for the time being in force under the principal Act, notwithstanding that the local Act or Acts under which such rates are levied provides for levying the same upon some different system of tonnage measurement. Steam shipB to carry certificated engmeers. Examinations for engineers' certificates of competency. Fees to be paid by applicants for examination. Certificates for Engineers [Tart III. of Merchant Shipping Act, 1854). 5. On and after the first day of June, one thousand eight hundred and sixty-three, every steam ship which is required by the principal Act to have a master possessing a certificate from the board of trade shall also have an engineer or engineers possessing a certificate or certificates from the board of trade as follows ; (that is to say,) (].) Engineers' certificates shall be of two grades, viz., "first-class engineers' certificates," and " second-dass engineers' certifioates : " (2.) Every foreign-going steam ship of one hundred nominal horse power or upwards shall have as its first and second engineers two certifi- cated engineers, the first possessing a " first-class engineers' certi- ficate," and the second possessing a "second-class engineers' certificate," or a certificate of the higher grade : (3.) Every foreign-going steam ship of less than one hundred nominal horse power shall have as ite only or first engineer an engineer possessing a " second-class-engineers' certificate," or a certificate of the higher grade : (4.) Every sea-going home-trade passenger steam ship shall have as its only or first engineer an engineer possessing a "second-class engineers' certificate" or a certificate of the higher grade: (6.) Every person who, having been engaged to serve in any of the above capacities in any such steam ship as aforesaid, goes to sea in that capacity without being at the time entitled to and possessed of such certificate as is required by this section, and every person who employs any person in any of the above capacities in such ship wi&out ascertaining that he is at the time entitled to and possessed of such certificate as is required by this section, shall for each such offence incur a penalty not exceeding fifty poimds. 6. The board of trade shall from time to time cause examinations to be held of persons who may be desirous of obtaining certificates of competency as engineers : for the purpose of such examinations the board of trade shall from time to time appoint and remove examiners, and award the remunera- tion to be paid to them ; lay down rules as to the qualification of applicants, and as to the times and places of examination, and generally do all such acts as it thinks expedient in order to carry into effect the examination of such engineers as aforesaid. 7. All applicants for examination shall pay such fees, not exceeding the sums specified in the table marked (B) in the schedule hereto, as the board of (a) The Innisfallen, L. E. 1 A. & E. 72 ; The Cathcart, L. R. 1 A. & E. 314. Merchant Shipping Amendment Act. 917 trade directs (S) ; and such feea shall be paid to such persons as the said board appoints for that purpose, and shall be carried to the account of the mercan- tile marine fund. 8. The board of trade shall deliver to every applicant who is duly reported Certiflcatea of to hive passed the examination satisfactorily, and to have given satisfactory competengr to evidence of his sobriety, experience and ability, a certificate of competency tho^who naas as firet-class engineer or as second-class engineer, as the case may be. 9. Certificates of service for engineers, differing in form from certificates Engineers' certi- of competency, shall be granted as follows : (that is to say,) tobe deUwrS'* (1.) Every person -who before the first day of April, one thousand eight on proof of hundred and sixty-two, has served as first engineer in any foreign- certain service, going steam-ship of one hundred nominal horse-power or upwards, or who has attained or attains the rank of engineer in the service of her Majesty or of the East India Company, shall be entitled to a " first-clase engineers' certificate " of service : (2.) Every person who before the first day of April, one thousand eight huntod and sixty-two, has served as second engineer in any foreign-going steam-ship of one hundred nominal horse power or upwards, or as first or only engineer in any other steam-ship, or who has attained or attains the rank of first-class assistant engineer in the service of her Majesty, shall be entitled to a " secoud-clasa engineers' certificate " of service : Each of such certificates of service shall contain particulars of the name, place and time of birth, and the length and nature of the previous service of the person to whom the same is delivered ; and the board of trade shall deliver such certificates of service to the various persons so respectively entitled thereto, upon their proving themselves to have attained such rank or to have served as aforesaid, and upon their giving a full and satisfactory account of the particulars aforesaid. 10. The provisions of the principal Act, with respect to the certificates of Certain pro- competency or service of masters and mates, contained in the 138th, 1 39th, visions of Mer- 140th, leist and 162nd sections of the said Act, shaU apply to certificates of chant Shipping: competency or service granted under this Act in the same manner as if certi- engin^S'^ce^- flcates of competency and service to be granted to engineers under this Act flcates. were specially mentioned and included in the said section. 11. The power by the 24.1st section of the principal Act given to the board Power of board of trade (c), or to any local marine board of instituting investigations into °' *r'"ic and the conduct of any master or mate whom it has reason to believe to be from boMd™o^£'Tosti- incompetency or misconduct unfit to discharge his duties, shall extend to any gate conduct of certificated engineer whom the board of trade or any local marine board has ocrtifioated reason to believe to be from incompetency or misconduct unfit to discharge engineers. his duties in the same manner as if in the said section the words " certificated engineer " had been inserted after " master " wherever " master " occurs in such section. 12. The declaration required to be given by the engineer surveyor under Declaration of section 309 of the principal Act shall, in the case of a ship by this Act engineer but- required to have a certificated engineer, contain, in addition to the statements JtateiMnt™''"'' in the said section mentioned, a statement that the certificate or certificates concerning of the engineer or engineers of such ship is or are such and in such condition engineers' as is required by this Act. certificate. Masters and Seamen {Part III. of Merchant Shipping Act, 1854). 18, The following vessels ; (that is to say,) Third Part of [(I.) Registered sea-going ships exclusively employed iu fishing on the Act to apply to coasts of the United Kingdom {d) :] fishing boats, (2.) Sea-going ships belonging to any of the three general lighthouse ^iii^onse ,„,„^°*"?^= , . , . , ,, pfl^me yachts, (i.) oea-gomg ships being pleasure yachts ; -with certain Shall be subject to the whole of the Third Part of the principal Act ; except exceptions, sections 136, 143, 145, 147, 149, 150, 161, 152, 163, 164, 155, 167, 158, 161, 162, 166, 170, 171, 231, 266, 279, 280, 281, 282, 283, 284, 286, 286 and 287. (") See 8. 4 of 43 & 44 Vict. o. 22. {d) Eepealed by 46 & 47 Vict, o, 41, See 39 & 40 Vict. c. 80, s. 29, s. 55. infra 3p2 918 25 & 26 Vict. cap. 63. Local marine ■board may determiiie number of quorum. Titles of shipping masters. Punishment for embezzlement in shipping offices. Examinations of masters and mates at ports where there are no local marine boards. Construction of sect. 182 of principal Act. Stipulations concerning ■Payment of wages to seamen abroad under sect. 209 of principal Act. 14. Whereas doubts have been entertained -whether local marine boards have the power of declaring a quomm : it is hereby declared, that the power by the 119th section of the principal Act given to every local marine board of regulating the mode in which its meetings are to be held and its business conducted includes the power of determining a quorum ; nevertheless, after the passing of this Act such quorum shall never consist of less than three members. 16. The offices termed shipping offices in the principal Act shall be termed mercantile marine offices, and the officers termed shipping masters and deputy shipping masters in the principal Act shall be termed superintendents and deputy superintendents of such offices ; but nothing in this section contained shall invalidate or affect any act which may be done at any such office under the title of a shipping office, or any act which may be done by, with or to any of the said officers under the title of shipping master or deputy shipping master. 16. Any person appointed to any office or service by or under any local marine board shall be deemed to be a clerk or servant within the meaning of the sixty-eighth section of the Act of the twenty-fifth year of the reign of her present Majesty, chapter ninety-six : If any such person fraudulently applies or disposes of any chattel, money or valuable security received by him whilst employed in such office or service for or on account of any such local marine board, or for or on account of any other public board or department, to his own use or any use or purpose other than ttiat for which the same was paid, entrusted to or received by him, or fraudulently withholds, retains or keeps back the same or any part thereof contrary to any lawful directions or instructions which he is required to obey in relation to such office or service, he shaU be deemed guilty of embezzle- ment within the meaning of the said Section : Any such person shall, on conviction of such offence as aforesaid, be liable to the same pains and penalties as are thereby imposed upon any clerk or servant for embezzlement : In any indictment against such person for such offence, it shall be sufficient to charge any such chattel, money, or valuable security as the property either of the board by which he was appointed, or of the board or depart- ment for or on account of which he may have received the same ; and no greater particularity in the description of the property shall be required in such indictment in order to sustain the same, or in proof of the offence alleged, than is required in respect of an indictment or the subject-matter thereof "by the seventy-first section of the said last-mentioned Act. 17. "Whereas it is expedient to make provision in certain cases for holding examinations of applicants for certificates of competency at places where there are no local marine boards : be it enacted, that the board of trade, if satisfied that serious inconvenience exists at any port in consequence of the distance which applicants for certificates have to travel in order to be examined, may with, the concurrence of any local marine board, send the examiner or examiners of that local marine board to the port where such in- convenience exists: and thereupon the said examiner or examiners shall proceed to such port, and shall there examine the applicants in the presence of such person or persons (if any) as the board of trade may appoint for the purpose ; and such examinations shall be conducted in the same manner and shall have the same effect as other examinations under the said Act. 18. It is hereby declared, that the 182nd section of the principal Act does not apply to the case of any stipulation made by the seamen belonging to any ship, which according to the terms of the agreement is to be employed on salvage service, with respect to the remuneration to be paid to them for salvage services to be rendered by such ship to any other ship or ships (e). 19. The payment of seamen's wages required by the 209(3i section of the principal Act shall, whenever it is practicable so to do, be made in money and not by bill ; and in cases where payment is made by bill drawn by the master, the owner of the ship shall be liable to pay the amount for which the same is drawn to the holder or indorsee thereof ; and it shall not be necessary in any proceeding against the owner upon such bill to prove that the master had authority to draw the same ; and any bill purporting to be drawn in pursuance of the said section, and to be indorsed as therein (c) The Ganges, L. E. 2 A. & E. 370. Merchant Shipping Amendment Act. 919 required, if produced out of the custody of the board of trade or of the registrar-general of seamen, or of any superintendent of any meroantOe marine office, shall be received in evidence ; and any indorsement on any such bill purporting to be made in pursuance of the said section, and to be signed by one of the functionaries therein mentioned, shall also be received in evidence, and shall be deemed to be prima facie evidence of the facts stated in such indorsement. 20. The 197th section of the principal Act shall extend to seamen or ap- Wages and prentices who within the six months immediately preceding their death have effects of belonged to a British ship ; and such section shall be construed as if there •^^'^'^^ were inserted in the first line thereof after the words " such seamen or °^''™™' apprentice as last aforesaid" the words "or if any seaman or apprentice who has within the six months immediately preceding his death belonged to a British ship." 21. The wages of seamen or apprentices who are lost with the ship to Eeooveryof which they belong shall be dealt with as follows ; (that is to say, ) wages, »c., of (1.) The board of trade may recover the same from the owner of the ship J^^X'™"''''' in the same manner in which seamen's wages are recoverable : (2.) In any proceedings for the recovery of such wages, if it is shown by some official return produced out of the custody of the registrar- general of seamen or by other evidence that the ship has twelve months or upwards before the institution of the proceedings left a port of departure, and if it is not shown that she has been heard of within twelve months after such departure, she shall be deemed to have been lost with all hands on board, either immediately after the time she was last heard of or at such later time as the court hearing the case may think probable : (3.) The production out of the custody of the registrar-general of seamen- or of the board of trade of any duplicate agreement or list of the crew made out at the time of the last departure of the ship from the United Kingdom, or of a certificate purporting to be a certifi- cate from a consular or other public officer at any port abroad, stating that certain seamen or apprentices were shipped in the ship from the said port, shall, in the absence of proof to the contrary, be sufficient proof that the seamen or apprentices therein named were on board at the time of the loss : (4.) The board of trade shall deal with such wages in the manner in which they deal with the wages of other deceased seamen and apprentices under the principal Act. 22. Whereas under the 211th and 212th sections of the principal Act, and Relief of dis- the 16th section of "The Merchant Shipping Act Amendment Act, 1855," tressed seamen provision is made for relieving and sending home seamen foimd in distress j^ boarlof abroad : and whereas doubts are entertained whether power exists under the trade. said sections of making regulations and imposing conditions which are necessary for the prevention of desertion and misconduct and the undue expenditure of public money : be it enacted, and it is hereby declared, that the claims of seamen to be relieved or sent home in pursuance of the said sections or any of them, shall be subject to such regulations and dependent on such conditions as the board of trade may from time to time make or impose ; and no seamen shall have any right to demand to be reKeved or sent home except in the oases and to the extent provided for by such regula- tions and conditions. 23. The following rules shall be observed with respect to the cancellation Power of can- and suspension of certificates ; (that is to say J : toSwtthtt'e^ (I.) The power of cancelling or suspending the certificate of a master or oourt which mate by the 242nd section of the principal Act conferred on ths hears the case, board of trade shall (except in the case provided for by the fourth paragraph of the said section) vest in and be exercised by the local marine board, magistrates, naval court, admiralty court, or other oourt or tribunal by which the case is investigated or tried, and shall not in future vest in or be exercised by the board of trade : (2.) Such power shall extend to cancelling or suspending the certificates of engineers in the same manner as if "certificated engineer" or "certificated engineers" were inserted throughout such section after ' ' master " or " masters : " (3.) Every such board, court or tribunal shall at the conclusion of the 920 25 & 26 Vict. cap. 63. Certificate to be delivered up. Extension and amendment of summary juris- diction in small salvage cases. case, or as soon afterwards as possible, state in open court the decision to which they may have come with respect to cancelling or suspending certificates, and shall in all cases send a full report upon the case with the evidence to the board of trade, and shall also, if they determine to cancel or suspend any certificate, forward such certificate to the board of trade wiib their report : , (4.) It shall be lawful for the board of trade, if they think the justice of the case required it, to re-iasue and return any certificate which has been cancelled or suspended, or shorten the time for which it is sus- pended, or grant a new certificate of the same or any lower grade in place of any certificate which has been cancelled or suspended : [(6.) The 434th and 437th sections of the principal Act shall be read as if for the word "nautical " were substituted the words "nautical or engineering, ' ' and as if for the word ' ' person ' ' and ' ' assessor " re- spectively were substituted the words "person or persons" and " assessor or assessors " respectively {/) :] (6.) No certificate shall be cancelled or suspended under this section unless a copy of the report or a statement of the case upon which the investigation is ordered has been furnished to the owner of the certificate before the commencement of the investigation, nor in the case of investigations conducted by justices or a stipendiary magistrate, unless one assessor at least expresses his concurrence in the report. 24. Every master or mate or engineer whose certificate is or is to be sus- pended or cancelled in pursuance of this Act shall, upon demand of the board, court or tribunal by which the case is investigated or tried, deliver his cer- tificate to them, or, if it is not demanded by such board, court or tribunal, ^haU, upon demand, deliver it to the board of trade, or as it directs; and in default shall for each ofience incur a penalty not exceeding fifty pounds. 25—38. ^Safety [Part IV. of Merchant Shipping Act, 1854).] 39—42. [Pihtage {Part V. of Merchant Shipping Act, 1864).] 43 — 48. [Lighthomes {Part VI. of MerchMit Shipping Act, 1854).] Wreck and, SaVoag'e {Part VIII. of Merchant Shipping Act, 1854). 49. The provisions contained in the Eighth Part of the principal Act for giving summary jurisdiction to two justices in salvage cases, and for pre- venting unnecessary appeals and litigation in such cases, shall be amended as follows : (that is to say,) (1 .) Such provision shall extend to all cases in which the value of the pro- perty saved does not exceed one thousand pounds, as well as to the cases provided for by the principal Act : (2.) Such provisions shall be held to apply whether the salvage service has been rendered within the limits of the United Kingdom or not : (3.) It shall he lawful for one of her Majesty's principal secretaries of state, or in Ireland for the lord lieutenant or other chief governor or governors to appoint out of the justices for any borough or county a rota of justices by whom jurisdiction in salvage cases shall be . exercised : (4.) When no such rota is appointed, it shall be lawful for the salvors, by writing addressed to the justice's clerk, to name one justice, and for the owner of the property saved in like manner to name the other: (5.) If either party fails to name a justice within a reasonable time, the case may be tried by two or more justices at petty sessions : (6.) It shall be competent for any stipendiary magistrate, and also in England for any county court judge, in Scotland for the sheriff or sheriff-substitute of any county, and in Ireland for the recorder of any borough in which there is a recorder, or for tlie chairmen of quarter sessions in any county, to exercise the same jurisdiction in salvage cases as is given to two justices : (/) Repealed by Statate Law Revision Act, 1878. B. 45, infra. See 39 & 40 Vict. c. 80, MeechaiJt Shipping Amendment Act. 921 (7.) It shall be lavrfnl for one of her Majesty's principal secretaries of state to determine a scale of costs to be awarded in salvage oases by any such justices or court as aforesaid (g) : (8.) All the provisions of the principal Act relating to summary proceed- ings in salvage oases, and to the prevention of unnecessary appeals in such cases, shall, except so far as the same are altered by this Act, extend and apply to all such proceedings, whether under the principal Act or this Act, or both of such Acts. 60. Whenever any salvage question arises the receiver of wreck for the Eeoeiver may district may, upon application from either of the parties, appoint a valuer to ?PP<'!j''t *.^i?^ value the property in respect of which the salvage claim is made, and shall, "" ^ ^°* when the valuation has been returned to him, give a copy of the valuation to both parties ; and any copy of such valuation, purporting to be signed by the valuer and to be attested by the receiver, shall be received in evidence in any subsequent proceeding ; and there shall be paid in respect of such valuation, by the party applying for the same, such fee as the board of trade may direct. 61. The words " court of session" in the four hundred and sixty-eighth Jurisdiotion of section of the principal Act shall be deemed to mean and include either ^"^vaM wSS division of the court of session or the lord ordinary officiating on the bills during vacation. 62. Upon delivery of wreck or of the proceeds of wreck by any receiver Delivery of to any person in pursuance of the provisions of the Eighth Part of the wreck ^y principal Act, such receiver shall be discharged from all liability in respect pjej'uiiJ.e title, thereof, but such delivery shall not be deemed to prejudice or afiect any ques- tion concerning the right or title to the said wreck which may be raised by third parties, nor shall any such delivery prejudice or affect any question con- cerning the title to the soil on which the wreck may have been found. 63. whereas by the principal Act it is provided that the proceeds of wreck. Crown rights to if the same is not claimed by the owner within a year, and if no person wreck. other than her Majesty, her heirs and successors, is proved to be entitled thereto, shall, subject to certain deductions, be paid into the receipt of her Majesty's exchequer in such manner as the commissioners of the treasury may direct, and timt the same shall be carried to and form part of the con- solidated fund of the United Kingdom (4) : And whereas doubts have been entertained whether the said last-reoited provision is consistent with the arrangements concerning the hereditary revenues of the crown effected by the Act of the first year of her present i Vict. c. 2. Majesty, chapter two : And whereas doubts have also been entertained whether due provision is made by the said Act for paying to the revenues of the duchies of Lancaster and Cornwall respectively such of the said proceeds as may belong to those duchies : It is hereby declared, that such of the said proceeds of wreck as belong to her Majesty in right of her crown shall, during the life of her present Majesty (whom God long preserve), be carried to and form part of the consolidated fund of the United Kingdom, and shall after the decease of her present Majesty (whom G-od long preserve) be payable and paid to her Majesty's heirs and successors : And it is hereby further declared, that such of the said proceeds of wreck as belong to her Majesty in right of her duchy of Lancaster shall be paid to the receiver-general of the said duchy, or his sufficient deputy or deputies, as part of the revenues of the said duchy, and be dealt with accordingly : And it is hereby further declared and enacted, that the provision in the principal Act contained regarding the sale of unclaimed vrreck to which no owner establishes his claim withm the period of one year, and to which no admiral, vice-admiral, lord of any manor, or person other than her Majesty, her heirs and successors, is proved to be entitled, is intended and shall be con- strued to apply to wreck of the sea belonging to her Majesty, her heirs and successors, in respect of the duchy of Cornwall, or to the Duke of Cornwall for the time being in respect of his duchy of Cornwall ; but that the proceeds of such wreck shall, subject to such deductions as are in the same Act men- tioned, form part of the revenues of the duchy of Cornwall, and be dealt with accordingly. (?) (A) See Maude & Pollock's Merchant Shipping, 4th ed., 2, ccccxxxvi. See 45 & 46 Viot. o. 55, s. 4. 922 25 & 26 Vict. cap. 63. Shipowners' liability limited. Limitation of invalidity of insuiances. Proof of pas- sengers on board lost ship. Liability of Shipowners {Part IX. of Merchant Shipping Act, 1854). 54. The owners of any ship, whether British or foreign, shall not, in cases where all or any of the following events occur without their actual fault or privity ; (that is to say,) (1.) Where any loss of life or personal injury is caused to any person being carried in such ship : (2.) Where any damage or loss is caused to any goods, merchandise or other things whatsoever on board any such ship : (3.) Where any loss of lite or personal injury is by reason of the improper navigation of such ship as aforesaid caused to any person carried in any other ship or boat : (4.) Where any loss or damage is by reason of the improper navigation of such ship as aforesaid caused to any other ship or boat, or to any goods, merchandise or other things whatsoever on board any other ship or boat : be answerable in damages in respect of loss of life or personal injury, either alone or together with loss or damage to ships, boats, goods, merchandise or other things, to an aggregate amount exceeding fifteen pounds for each ton of their ship's tonnage : nor in respect of loss or damage to ships, goods, mer- chandise or other things, whether there be in addition loss of life or personal injury or not to an aggregate amount exceeding eight pounds for each ton of the ship's tonnage ; such tonnage to be the registered tonnage in the case of sailing ships, and in the case of steam ships the gross tonnage without deduc- tion on account of engine-room : In the case of any foreign ship which has been or can be measured according to British law, the tonnage as ascertained by such measurement shall, for the purposes of this section, be deemed to be the tonnage of such ship ! In the case of any foreign ship which has not been and cannot be measured under British law, the surveyor-general of tonnage in the United Kingdom, and the chief measuring officer in any British possession abroad, shall, on receiving from or by direction of the court hearing the case such evidence concerning the dimensions of the ship as it maybe found practicable to furnish, give a certificate under his hand stating what would in his opinion have been the tonnage of such ship if she had been duly measured according to British law, and the tonnage so stated in such certificate shall, for the purposes of this section, be deemed to be the tonnage of such ship. 58. Insurances efifected against any or all of the events enumerated in the section last preceding, and occurring vpithout such actual fault or privity as therein mentioned, shall not be invsSid by reason of the nature of the risk («). 56. In any proceeding under the 506th section of the principal Act or any Act amending the same against the owner of any ship or share therein in respect of loss of life, the master's list or the duplicate list of passengers delivered to the proper officer of customs under the sixteenth section of ' ' The Passengers Act, 1855," shall, in the absence of proof to the contrary, be sufficient proof that the persons in respect of whose death any such prosecu- tion or proceeding is instituted were passengers on board such ship at the time of their deaths. Foreign ships in British jurisdio- tion to be sub- ject to regula/- tions in Table (C) in schedule. "Regulations, when adopted by a foreign Arrangements concerning Lights, Sailing Sules, Salvage and Measurement of. Tonnage in the case of Foreign Ships. 57. Whenever foreign ships are within British jurisdiction, the regulations for preventing collision contained in table (C) in the schedule to this Act, or such other regulations for preventing colusion as are for the time being in force imder this Act, and aU provisions of this Act relating to such regula- tions, or otherwise relating to collisions, shall apply to such foreign ships ; and in any cases arising in any British court of justice concerning matters happening within Britidi jurisiUction, foreign ships shall, so far as regards such regulations and provisions be treated as if they were British ships. 68. Whenever it is made to appear to her Majesty that the government of any foreign country is willing that the regulations for preventing collision {«) See 30 Vict. o. 23, s. 7. Merchant Shipping Amendment Act. 923 contained in table (C) in the schedule to this Act (i), or such other regula- coiintij, may bo tions for preventing collision as are for the time being in force under this applied to its Act, or any of the said regulations, or any provisions of this Act relating to hig^^sras. collisions, should apply to the ships of such country vrhen beyond the limits of British jurisdiction, her Majesty may, by order in council, direct that such regulations, and all provisions of this Act which relate to such regulations, and all such other provisions as aforesaid, shall apply to the ships of the said foreign country, whether within British i urisdiction or not. 69. Whenever it is made to appear to her Majesty that the government of Provisions con- any foreign country is willing that salvage shall be awarded by British courts "?'7?j°B salvage for services rendered in saving life from any ship belonging to such country ^th tlS to'h- when such ship is beyond the limits of British jurisdiction, her Majesty may, sent of any by order in council, direct that the provisions of the principal Act and of this foreign country. Act, with respect to salvage for services rendered in saving life from British sMna on^ttie' '** ships, shall in all British courts be held to apply to services rendered in high seas, saving life from the ships of such foreign country, whether such services are rendered within British jurisdiction or not. 60. Whenever it is made to appear to her Majesty that the rules concern- Ships of foreign ing the measurement of tonnage of merchant ships for the time being in i^^^^j^?''*" force under the principal Act have been adopted by the government of any measuTemmt°of foreign country, and are in force in that country, it shall be lawful for her tonnage need Majesty by order in council to direct that the ships of such foreign country ""* ^^ '^ . shall be deemed to be of the tonnage denoted in their certificates of registry S^sSmt^ or other national papers ; and thereupon it shall no longer be necessary for such ships to be remeasured in any port or place in her Majesty's dominions, but such ships shall be deemed to be of the tonnage denoted in their certifi- cates of registry or other papers, in the same manner, to the same extent and for the same purposes in, to and for which the tonnage denoted in the certificates of registry of British ships is deemed to be the tonnage of such ships. 61. Whenever an order in council has been issued under this Act, applying Effect of orde any provision of this Act or any regulation made by or in pursuance of this "" council. Act to the ships of any foreign country, such ships shall in all eases arising in any British court be deemed to be subject to such provision or regulation, and shall for the purpose of such provision or regulation be treated as if they were British ships. 62. In issuing any order in council under this Act her Majesty may limit Orders in couu- the time during which it is to remain in operation, and may make the same, ^^S *'®(^ subject to such conditions and qualifications, if any, as may be deemed time an^ expedient, and thereupon the operation of the said order shall be limited and qualified, modified accordingly. 63. Her Majesty may, by order in council, from time to time revoke or Orders in coun- alter any order previously made under this Act (1) . °''k°d^ ^d '^^ 64. Every order in council to be made under this Act shall be published in altered. the London Q-azette as soon as may be after the making thereof ; and the orders in coun- production of a copy of the London Gazette containing such order shall be oil to be pub- received in evidence, and shall he proof that the order therein published has lished in " Lon- been duly made and issued ; and it shall not be necessary to plead such order Gazette." specially. Legal Procedure. 66. Nothing in the third section of the Act passed in the twentieth and 20 & 21 Vict, twenty-first years of the reign of her present Majesty, chapter forty-three, "■ ^' s- 3. not to except so much thereof as provides for the payment of any fees that may be ^^Jjgg ^Ser due to the clerk of the justices, shall be deemed to apply to extend to any board of trade proceeding under the direction of the board of trade, or under or by virtue or this Act, &o. of the provisions of the principal Act or this Act, or any Act amending the same. Delivery of Goods and Lien for Freight. 66. The following terms used in the sections of this Act hereinafter con- Interpretation of terms. (i) Superseded by Order in Coun- lock, pp. 2, 173. oil, 14th AuguBt,1879. Maude&Pol- (0 39 & 40 Vict. c. 80, 8. 38, w/ra. 924 25 & 26 Vict. cap. "Eeport:" " Entry :" " Goods :" ""WTiari:" "Warehouse:" ""WTiarf OTmer:' " "Warehouse owner :" " ShipoTvuer :" " Owner of Power to ship- owner to enter and land goods in default of entry and land- ing by owner of goods. tained, shall have the reepeotive meanings hereby assigned to them, if not inconsistent with the context or subject-matter ; {that is to say,) The word ' ' report ' ' shall mean the report required by the customs laws to be made by the master of any importing ship : The word " entry " shall mean the entry required by the customs laws to be made for the landing or discharge of goods from an importing ship : The word "goods " shall include every description of wares and merchan- dise: The word " wharf " shall include all wharves, quays, docks and premises in or upon which any goods when landed from ships may be lawfully placed : The word ' ' warehouse ' ' shall include all warehouses, buildings and pre- mises in which goods when landed from ships may be lawfully placed : The expression ' ' wharf owner ' ' shall mean the occupier of any wharf, as hereinbefore defined : The expression "warehouse owner " shall mean the occupier of any ware- house as hereinbefore defined : The word "shipowner" shall include the master of the ship and every other person authorised to act as agent for the owner, or entitled to receive the freight, demurrage, or other charges payable in respect of such ship : The expression " owner of goods " shall include every person who is for the time being entitled, either as owner or agent for the owner, to the possession of the goods, subject in the case of a, lien, if any, to such lien: 67. Where the owner of any goods imported in any ships from foreign parts into the United Kingdom fails to make entry thereof, or having made entry thereof to land the same or take delivery thereof and to proceed there- with with all convenient speed, by the times severally hereinafter mentioned, the shipowner may make entry of and land or unship the said goods at the times, in the manner, and subject to the conditions following ; (that is to say,) (1 .) If a time for the delivery of the goods is expressed in the charter party, bill of lading, or agreement, then at any time after the time so ex- (2.) If no time for the delivery of the goods is expressed in the charter party, bill of lading, or agreement, then at any time after the ex- piration of seventy-two hours, exclusive of a Sunday or holiday, after the report of the ship : (3.) If any wharf or warehouse is named in the charter party, bill of lad- ing, or agreement, as the wharf or warehouse where the goods are to be placed, and if they can be conveniently there received, the shipowner in landing them by virtue of this enactment shall cause them to be placed on such wharf or in such warehouse : (4.) In other oases the shipowner in landing goods by virtue of this enact- ment shall place them in or on some wharf or warehouse on or in which goods of a like nature are usually placed ; such wharf or warehouse being, it the goods are dutiable, a wharf or warehouse duly approved by the commissioners of customs for the landing of dutiable goods : (5.) If at any time before the goods are landed or unshipped the owner of the goods is ready and offers to land or take delivery of the same, he shall be allowed so to do, and his entry shall in such case be preferred to any entry which may have been made by the shipowner : (6.) If any goods are, for the purpose of convenience in assorting the same, landed at the wharf wherethe ship is discharged, and the owner of the goods at the time of suish lan(fing has made entry and is ready and offers to take delivery thereof, and to convey the same to some other wharf or warehouse, such goods shall be assorted at landing, and shall if demanded, be delivered to the owner thereof vrithm twenty-four hours after assortment; and the expense of and conse- quent on sijoh landing amd assortment shall be borne by the ship- owner : (7.) If at any time before the goods are landed or unshipped the owner thereof has made entry for the landing and warehousing thereof at any particular wharf or warehouse other than that at jvhioh the ship Merchant Shipping Amendment Act. 925 is discharging, and has offered and been ready to take deliyery thereof, and the shipowner has failed to make such delivery, and has also failed at the time of such offer to giye the owner of the goods correct information of the time at which such goods can be delivered, then the shipowner shall, before landing or unshipping such goods under the power hereby given to him, give to the owner of the goods or of such wharf or warehouse as last aforesaid twenty-four hours' notice in writing of his readiness to deliver the goods, and shall, if he lands or unships the same without such notice, do so at his own risk and expense. 68. If, at the time when any goods are landed from any ship, and placed H, when |oods in the custody of any person as a wharf or warehouse owner, the shipowner *^ landed, the gives to the wharf or warehouse owner notice in writing that the goods are no^TtmSIi to remain subject to a lien for freight or other charges payable to the ship- piupose, the owner to an amount to be mentioned in such notice, the goods so landed shall, u™ '"^ freight in the hands of the wharf or warehouse owner, continue liable to the same ^ continue, lien, if any, for such charges as they were subject to before the landing thereof ; and the wharf or warehouse owner receiving such goods shall retain them untU the Uen is discharged as hereinafter mentioned, and shall, if he fail so to do, make good to the shipowner any loss thereby occasioned to him. 69. Upon the production to the wharf or warehouse owner of a receipt for Lien to be dis- the amount claimed as due, and delivery to the wharf or warehouse owner of charged on proof a copy thereof, or of a release of freight from the shipowner, the said lien " P^y™cut. shall be discharged. 70. The owner of the goods may deposit with the wharf or warehouse Lien to be dis- owner a sum of money equal in amount to the sum so claimed as aforesaid by S^^^ "ju the shipowner, and thereupon the Uen shall be discharged, but without pre- wMehouso judice to any other remedy which the shipowner may have for the recovery owner. of the freight. 71. If such deposit as aforesaid is made with the wharf or warehouse Warehouse owner, and the person making the same does not within fifteen days after owner may at making it give to the wharf or warehouse owner notice in writing to retain flfjeln ^a™ if it, stating in such notice the sum, if any, which he admits to be payable to no notice is' the shipowner, or, as the case may be, that he does not admit any sum to be given, pay so payable, the wharf or warehouse owner may, at the expiration of such ^^°J°* *" "^^ fifteen days, pay the sum so deposited over to the shipowner, and shall by such payment be discharged from all liability in respect thereof. 72. If such deposit as aforesaid is made with the wharf or warehouse Course to be owner, and the person making the same does within fifteen days after making taken if notice it give to the wharf or warehouse owner such notice in writing as afore- ^^^^ " said, the wharf or warehouse owner shall immediately apprise the shipowner of such notice, and shall pay or tender to him out of the sum deposited the sum, if any, admitted by such notice to be payable, and shall retain the remainder or balance, or, if no sum is admitted to be payable, the whole of the sum deposited for thirty days from the date of the said notice ; and at the expiration of such thirty days, unless legal proceedings have in the meantime been instituted by the shipowner against the owner of the goods to recover the said balance or sum or otherwise for the settlement of any dis- putes which may have arisen between them concerning such freight or other charges as aforesaid, and notice in writing of such proceedings has been served on him, the wharf or warehouse owner shall pay the said balance or sum over to the owner of the goods, and shall by such payment be discharged from all liability in respect thereof. 73. If the lien is not discharged, and no deposit is made, as hereinbefore After ninety mentioned, the wharf or warehouse owner may, and, if required by the ship- J^^e7may°seU owner, shall, at the expiration of ninety days from the time when the goods goods by pubUo were placed in his custody, or if the goods axe of a perishable nature, at such auction, earlier period as he in his discretion thinks fit, sell by public auction, either for home use or exportation, the said goods, or so muc5i thereof as may be necessary to satisfy the charges hereinafter mentioned. 74. Before making such sale the wharf or warehouse owner shall give Notice of sale to notice thereof by advertisment in two newspapers circulating in the neigh- "^ given, bourhood, or in one daily newspaper published in London and in one local newspaper, and also, if the address of the owner of the goods has been stated on the manifest of the cargo, or on any of the documents which have come into the possession of the wharf or warehouse owner, or is otherwise known 926 25 & 26 Vict. cap. 63. Moneys arising from sale, how to be applied. "Warehouse owner's rent and expenses. "Waiebouse owner's pro- SaTingr powers under local Acts. (2.) (3.) to him, give notice of tlie sale to the owBer of the goods by letter sent by the post ; but the title of a bona fide purchaser of such goods shall not be invali- dated by reason of the omission to send notice as hereinbefore mentioned, nor shall any such purchaser be bound to enquire whether such notice has been sent. 76. In every case of any such sale as aforesaid the wharf or warehouse owner shall apply the moneys received from the sale as follows, and in the following order : (1.) If the goods are sold for home use in payment of any customs or ex- cise duties owing in respect thereof : In payment of the expenses of the sale : In the absence of any agreement between the wharf or warehouse owner and the shipowner concerning the priority of their respective charges, in payment of the rent, rates and other charges due to the wharf or warehouse owner in respect of the said goods : (4.) In payment of the amount claimed by the shipowner as due for freight or other charges in respect of the said goods : (3.) But in case of any agreement between the wharf or warehouse owner and the shipowner concerning the priority of their respective charges then such charges shall have priority according to the terms of such agreement : and the surplus, if any, shall be paid to the owner of the goods. 76. Whenever goods are placed in the custody of a wharf or warehouse owner under the authority of this Act, the said wharf or warehouse owner shall be entitled to rent in respect of the same, and shaU also have power from time to time at the expense of the owner of the goods, to do all such reasonable acts as in the judgment of the said wharf or warehouse owner are necessary for the proper custody and preservation of the said goods, and shall have a lien on the said goods for the said rent and expenses. 77. Nothing in this Act contained, shall .compel any wharf or warehouse owner to take charge of any goods which he would not be liable to take charge of if this Act had not passed ; nor shall he be bound to see to the validity of any lien claimed by any shipowner under this Act. 78. Nothing in this Act contained shall take away or abridge any powers given by any local Act to any harbour trust, body corporate or persons whereby they are enabled to expedite the discharge of ships or the landing or delivery of goods ; nor shall anything in this Act contained take away or diminish any rights or remedies given to any shipowner or wharf or ware- house owner by any local Act. The SCHEDULE referred to in this Act. TA3LE (A). See Sect. 2 (m). Table (B). See Sect. 6 («). Fees to he charged on Examination of Engineers. For a first-class engineer's certificate For a second-class engineer's certificate £2 1 (m) Repealed by Statute Law Re- Mercantile Marine Offices on exami- vision Act, 1875. nation for certificate, see Maude & («) For table of fees payable at PoUock, 4th ed. p. cccxciii. Joint Stock Companies. 927 25 & 26 ViOT. 0. 89, An Act for the Incorporation, Regulation, and Winding-ttp of Trading Companies and other Associations (o). [7th August, 1862.] Whbbeas it is expedient that the laws relating to the incorporation, regu- lation, and winding-up of trading companies and other associations should he consolidated and amended : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and hy the authority of the same, as follows : Freliminary. Preliminary. 1. This Act may he cited for aU purposes as "The Companies Act, 1862." Shorttitle. 2. This Act, with the exception of such temporary enactment as is here- Comniencemont inafter declared to come into operation immediately, shall not come into of Act. operation until the second day of November, one thousand eight hundred and sixty-two, and the time at which it so comes into operation is herein- after referred to as the commencement of this Act. 3. For the purposes of this Act a company that carries on the business Deflnition of of insurance in common with any other business or businesses shall be 'n»u™i>ce com- deemed to be an insurance company (p). ^ ^' 4. No company, association, or partnership consisting of more than ten Prohibition of persons shall be formed, after the commencement of this Act, for the purpose J^^jip'"''' of carrying on the business of banking, unless it is registered as a company tain nuji§)err under this Act, or is formed in pursuance of some other Act of ParUament, or of letters patent ; and no company, association, or partnership consisting of more than twenty persons shall be formed after the commencement of this Act, for the purpose of carrying on any other business that has for its object the acquisition of gain by the company, association, or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of some other Act of Parliament, or of letters patent, or is a company engaged in working mines vrithin and subject to the jurisdiction of the Stannaries. 6. This Act is divided into nine parts, relating to the following subject- Division of Act. matters : The first part, — to the constitution and incorporation of companies and associations under this Act : The second part, — to the distribution of the capital and liability of members of companies and associations under this Act : The third part, — to the management and administration of companies and associations under this Act : The fourth part, — to the winding-up of companies and associations under this Act : The fifth part, — to the registration office : The sixth part, — to application of this Act to companies registered under the Joint Stock Companies Act : The seventh part, — to companies authorized to register under this Act: The eighth part, — to application of this Act to unregistered companies : The ninth part,— to repeal of Acts, and temporary provisions. PART I. CoNSTITtTTION AUD InCOBPOEATION OF COMPANIES AND ASSOCIATIONS UNDEB THIS Act. Memorandum of Association. Memorandum of Association. 6. Any seven or more persons associated for any lawful purpose may, by subscribing their names to a memorandum of association (j), and otherwise Mode of forming complying with the requisitions of this Act in respect to registration, form "^omp^ny- an incorporated company, with or without limited liability. (o) See 30 Vict. c. ^9, and 30 & 31 (p) See sect. 44. Vict. c. 131, infra. (?) See Schedule II. 928 25 & 26.Vie!R cab. I. Memorandum of Association. Mode of limitmg liability of members. Memorandum of association of a company limited by ahaxes. Memorandum of association of a company limited by gnarantee. Memorandum of association of an unlimited com- pany. Stamp, signa- ture, and effect of memorandum of association. 7. The liability of tlie members of a company formed under this Act may, according to the memorandum of association, he limited either to the amount, if any, unpaid on the shares respectively held by them, or to such amount as the members may respectively undertake by the memorandum of asso- ciation to contribute to the assets of the company in the event of its being wound up (r) . 8. Where a company is formed on the principle of having the liability of its members limited to the amount unpaid on their shares, hereinafter referred to as a company limited by shares, the memorandum of association shall contain the following things ; (that is to say,) (1.) The name of the proposed company, with the addition of the word ' ' limited ' ' as the last word in such name («) : (2.) The part of the United Kingdom, whether England, Scotland, or Ireland, in which the registered office of the company is proposed to be situate : (3.) The objects for which the proposed company is to be established : (4.) A declaration that the liability of the members is limited : (5.) The amount of capital with which the company proposes to be registered divided into shares of a certain fixed amount : Subject to the following regulations : (1.) That no subscriber shall take less than one share : (2.) That each subscriber of the memorandum of association shall write opposite to his name the number of shares he takes. 9. Where a company is formed on the principle of having the liability of its members limited to such amount as the members respectively undertake to contribute to the assets of the company in the event of the same being wound up, hereinafter referred to as a company limited by guarantee, the memorandum of association shall contain the foUowing things ; (that is to say,) (1.) The name of the proposed company, with the addition of the word ' ' limited "as the last word in such name : (2.) The part of the United Kingdom, whether England, Scotland, or Ireland, in which the registered office of the company is proposed to be situate : (3.) The objects for which the proposed company is to be established : (4.) A declaration that each member undertakes to contribute to the assets of the company, in the event of the same being wound up during the time that he is a member, or within one yeai afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceases to be a member, and of the costs, charges, and expenses of winding-up the company, and for the ad- justment of the rights of the contributbries amongst themselves, such amount as may be required, not exceeding a specified amount. 10. Where a company is formed on the principle of having no limit placed on the liability of its members, hereinafter referred to as an unlimited company, the memorandum of association shall contain tho following things ; (that is to say), (1 .) The name of the proposed company : (2.) The part of the United Kingdom, whether England, Scotland, or Ireland, in which the registered office of the company is proposed to be situate : (3.) The objects for which the proposed company is to be established. 11. The memorandum of association shall bear the same stamp as if it were a deed, and shall be signed by each subscriber in the presence of, and be attested by, one witness at the least, and that attestation shall be a suffi- cient attestation in Scotland as well as in England and Ireland : it shall, when registered, bind the company and the members thereof to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were in the memorandum contained, on the part of himself, his heirs, executors, and administrators, a covenant to observe all the conditions of such memorandum, subject to the provisions of this Act. (r) By sect. 4 of 30 & 31 Vict. (s) See sect. 0. 131, infra, companies may have o, 131, infra, directors with unlimited liability, 23 of 30 & 31 Vict. Joint Stock Companies. 929 12. Any company limited by shares may so far modify the conditions I. Memorandum contained in its memorandum of association, if authorized to do so by its of Association. regulations as originally framed, or as altered by special resolution in manner power of certain hereinafter mentioned, as to increase its capital, by the issue of new shares companies to of such amount as it thinks expedient, or to consolidate and divide its capital alter memoran- into shares of larger amount than its existing shares, or to oonTert its paid- J™" °* associa- up shares into stock, bnt, save as aforesaid, and save as is hereinafter provided in the case of a change of name, no alteration shall be made by any company in the conditions contained in its memorandum of association [t). 13. Any company under this Act, with the sanction of a special resolution Power of oom- of the company passed in manner hereinafter mentioned, and with the panics to change approval of the Board of Trade, testified in writing under the hand of one ""■•a^- of its secretaries or assistant secretaries, may change its name, and upon such change being made the registrar shall enter the new name on the register in the place of the former name, and shall issue a certificate of in- corporation 3.1tered to meet the circumstances of the case ; but no such alteration of name shall afBeot any rights or obligations of the company, or render defective any legal proceedings instituted or to be instituted by or against the company, and any legal proceedings may be continued or com- menced against the company by its new name that might have been continued or commenced against the company by its former name. Articles of Articles of Association. Association. 14. The memorandum of association may, in the case of a company limited Regulations to by shares, and shall, in the case of a company limited by guarantee or un- be presoribea by limited, be accompanied, when registered, by articles of association signed articles of asso- by the subscribers to the memorandum of association, and prescribing such ""^ '" ' regulations for the company as the subscribers to the memorandum of associa- tion deem expedient : the articles shall be expressed in. separate paragraphs, numbered arithmetically : they may adopt all or any of the provisions con- tained in the Table marked A in the first schedule hereto ; they shall, in the case of a company, whether limited by guarantee or unlimited, that has a capital divided into shares, state the amount of capital with which the com- pany proposes to be registered ; and in the case of a company, whether limited by guarantee or unlimited, that has not a capital divided into shares, state the number of members with which the company proposes to be registered, for the purpose of enabling the registrar to determine the fees payable on registration : in a company limited by guarantee or unlimited, and having a capital divided into shares, each subscriber shall take one share at the least, and shall write opposite to his name in the memorandum of association the number of shares he takes. 16. In the case of a company limited by shares, if the memorandum of Application of association is not accompanied by articles of association, or in so far as the Table A. articles do not exclude or moduy the regulations contained in the Table marked A in the first schedule hereto, the last-mentioned regulations shaJl, so far as the same are applicable, be deemed to be the regulations of the company, in the same manner and to tie same extent as if they had been inserted in articles of association, and the articles had been duly registered. 16. The articles of association shall be printed, they shall bear the same stamp, signa- Btamp as if they were contained in a deed, and shall be signed by each sub- *™'«>?^'i ^^s"' scriber in the presence of, and be attested by, one witness at the least, and ^^^!^„° such attestation shall be a siifScient attestation in Scotland as well as in England and Ireland ; when registered, they shall bind the company and the members thereof to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were in such articles contained a covenant on the part of himself, his heirs, executors, and adniinistrators, to conform to all the regulations contained in such articles, subject to the provisions of this Act ; and all moneys payable by any member of the company, in pursuance of the conditions and regulations of the company, or any of such conditions or regulations, shall be deemed to be a debt due from suol/member to the company, and in England and Ireland to be in the nature of a specialty debt. (if) See 30 & 31 Vict. c. 131, ss. 8—20; 40 & 41 Viot. o. 26, s. 4; 43 Vict. c. 19, s. 4, infra. 930 25 & 26 Vict. cap. 89. I. General Provisions, Hegistratxon of memorandum of association and articles of asso- ciation, \pitli fees as in Table B. Effect of regis- tration. Copies of memo- randum and articles to be fiven to mem- ers. Prohibition against identity of names in companies. Prohibition against certain companies hold- ing land. General Provisions. 17. The memorandum of association and the articles of association, if any, shall be delivered to the registrar of joint stock companies hereinafter men- tioned («), who shall retain and register the same : there shall be paid to the registrar by a company having a capital divided into shares, in respect of the several matters mentioned in the table marked B in the first schedule hereto, the several fees therein specified, or such smaller fees as the Board of Trade may from time to time direct {x) ; and by a company not having a capital divided into shares, in respect of the several matters mentioned in the table marked C in the first schedule hereto, the several fees therein speci- fied, or such smaller fees as the Board of Trade may from time to time direct : all fees paid to the said registrar in pursuance of this Act shall be paid into the receipt of her Majesty's Exchequer, ajid be carried to the account of the Consolidated Fund of the United Kingdom of Great Britain and Ireland. 18. Upon the registration of the memorandum of association, and of the articles of association in cases where articles of association are recLuired by this Act or by the desire of the parties to be registered, the registrar shall certify, under his hand, that the company is incorporated, and in the case of a limited company that the company is limited : the subscribers of the memo- randum of association, together with such other persons as may from time to time become members of the company, shall thereiipon be a body corporate by the name contained in the memorandum of association, capable forthwith of exercising aU the functions of an incorporated company, and having perpetual succession and a common seal, with power to hold lands, but with such liability on the part of the members to contribute to the assets of the company in the event of the same being wound up as herein- after mentioned {y) : a certificate of the incorporation of any company given by the registrar, shall be conclusive evidence that all the requisitions of this Act in respect of registration have been complied with. 19. A copy of the memorandum of association, having annexed thereto the articles of association, if any, shall be forwarded to every member, at his request, on payment of the sum of one shilling, or such less sum as may be prescribed by the company for each copy ; and if any company makes default in forwarding a copy of the memorandum of association and articles of association, if any, to a member, in pursuance of tiiis section, the com- pany BO making default shall, for each offence, incur a penalty not exceed- ing one pound. 20. No company shall be registered under a name identical with that by which a subsisting company is already registered, or so nearly resembling the same as to be calculated to deceive, except in a case where such subsist- ing company is in the course of being dissolved, and testifies its consent in such manner as the registrar requires ; and if any company, through inad- vertence or otherwise, is, without such consent as aforesaid, registered by a name identical with that by which a subsisting company is registered, or so nearly resembling the same as to be calculated to deceive, such first-men- tioned company may, with the sanction of the registrar, change its name, and upon such change being made, the registrar 5iall enter the new name on the register in the place of the former name, and shall issue a certificate of incorporation, altered to meet the circumstances of the case ; but no such alteration of name shall affect any rights or obligations of the company, or render defective any legal proceedings instituted, or to be instituted, by or against the company, and any legal proceedings may be continued or com- menced against the company by its new name that might have been con- tinued or commenced against the company by its former name. 21. No company formed for the purpose of promoting art, science, religion, charity, or any other liKe object, not involving the acquisition of gain by the company or by the individual members thereof, shall, without the sanction of the Board of Trade, hold more than two acres of land ; but the Board of Trade may, by licence (2) under the hand of one of their principal secretaries or assistant secretaries, empower any such company to hold lands in such quantity and subject to such conditions as they think fit. («) Sect. 174. (y) Sect. 38. {x) Sect. 71 ; Schedule I., Table (B). (a) Sohed. II., Form F. Joint Stock Companies. 931 ■DA-DT TT H.Dwtrihutionof irAJii 11. Capital. DXSTEIBXJTION OF OaPITAIi AND LlABILiry OP MEMJBEEa OP COMPANIES AND Associations undee this Act. Distribution of Capital. 22. The shares or other interest of any member in a company under this Nature of Act shall be personal estate, capable of being transferred in manner provided interest in corn- by the regrulations of the company, and shall not be of the nature of real ^™''' estate, and each share shall, in the case of a company having a capital divided into shares be distinguished by its appropriate number. 23. The subscribers of the memorandum of association of any company Definition of under this act shall be deemed to have agreed to become members of the "member." company whose memorandum they have subscribed, and upon the registra- tion of the company shall be entered as members on the register of members hereinafter mentioned ; and every other person who has agreed to become a member of a company under this Act, and whose name is entered on the register of members, shall be deemed to be a member of the company (a) . 24. Any transfer of the share or other interest of a deceased member of a Transfer by company under this Act, made by his personal representative, shaU, notwith- personal repre- standing such personal representative may not himself be a member, be of tentative. the same validity as if he had been a member at the time of the execution of the instrument of transfer. 25. Every company tmder this Act shall cause to be kept in one or more Eegister of books a register of its members (4), and there shall be entered therein the membei-s. following particulars : — (1.) The names and addresses, and the occupations, if any, of the members of the company, with the addition, in the case of a company having a capital divided into shares, of a statement of the shares held by each member, distinguishing each share by its number ; and of the amount paid or agreed to be considered as paid on the shares of each member : (2.) The date at which the name of any person was entered in the register as a member : (3.) The date at which any person ceased to be a member : '^ And any company acting in contravention of this section shall incur a penalty not exceeding five pounds for every day during which its default in com- plying with the provisions of this section continues, and every director or manager of the company who shall knowingly and wilfully authorize or permit such contravention shall incur the like penalty. 26. Every company under this Act, and having a capital divided into Annual list of shares (c), shall make, once at least ia every year, a list of all persons who, members. on the fourteenth day succeeding the day on which the ordinary general meeting, or if there is more than one ordinary meeting in each year, the first of such ordinary general meetings is held, are members of the company ; and such list shall state the names, addresses, and occupations of all the members therein mentioned, and the number of shares held by each of them, and shall contain a summary specifying the following particulars : — {].) The amount of the capital of the company, and the number of shares into which it is divided : (2.) The number of shares taken from the commencement of the company up to the date of the summary : (3.) The amount of calls made on each share : (i.) The total amount of calls received : (5.) The total amount of calls unpaid : (6.) The total amount of shares forfeited : (7.) The names, addresses, and occupations of the persons who have ceased to be members since the last list was made, and the number of shares held by each of them. The above list and summary shall be contained in a separate part of the register, and shall be completed within seven days after such fourteenth day la) Sect. 37. Vict. c. 131, infra. (b) Compare sect. 31 of 30 & 31 (c) See sect. 12 of this Act. VOL. II. — S. 3 Q 932 25 & 26 Vict. cap. 89. n. Distj-iJmHon of Capital. Penalty on company, &c., not keeping a proper register. Company to give notice of consoli- dation or of eon- version of capital into stock. Effect of oonvei> aion of shares into stock. Entry of trusts on register. Certificate of shares or stock. Inspection of register. Power to close register. Notice of in- crease of capital and of members to be given to registi-ar. as is mentioned in tMs section, and a copy shall forthwith be forwarded to the registrar of joint stock oompanies (<^. 27. If any company under this Act, and having a capital divided into shares, makes default in complying with the provisions of this Act with respect to forwarding such list of members or summary as is hereinbefore mentioned to the registrar, such company shall incur a penalty not exceeding five pounds for every day during which such default continues, and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall incur the like penalty. 28. Every company under this Act, and having a capital divided into shares that has consolidated and divided its capital into shares of larger amount than its existing shares, or converted any portion of its capital into stock, shall give notice to the registrar of joint stock companies of such con- solidation, division, or conversion, specifying the shares so consolidated, di- vided, or converted. 29. Where any company under this Act, and having a capital divided into shares, has converted any portion of its capital into stock, and given notice of such conversion to the registrar, all the provisions of this Act which are ap- plicable to shares only shall cease as to so much of the capital as is converted into stock ; and the register of members hereby required to be kept by the company, and the list of members to be forwarded to the registrar, diall show the amount of stock held by each member in the list instead of the amount of shares and the particulars relating to shares hereinbefore required. 30. No notice of any trust, expressed, implied, or constructive, shall he entered on the register, or be receivable by the registrar, in the case of companies under this Act, and registered in England or Ireland. 31. A certificate, under the common seal of the company, specifying any share or shares or stock held by any member of a company, shall be pnrnd facie evidence of the title of the member to the share or shares or stock therein specified. 32. The register of members, commencing from the date of the registra- tion of the company, shall be kept at the registered ofSce of the company hereinafter mentioned («) ; except when closed, as hereinafter mentioned (/), it shall during business hours, but subject to such reasonable restrictions as the company in general meeting may impose, so that not less than two hours in each day be appointed for inspection, be open to the inspection of any member gratis, and to the inspection of any other person on the payment of one shilling, or such less sum as the company may prescribe, for each in- spection ; and every such member or other person may require a copy of such register, or of any part thereof, or of such list or summary of meiubers as is hereinbefore mentioned, on payment of sixpence for every hundred words required to be copied ; if such inspection or copy is refused, the company shall incur for each refusal a penalty not exceeding two pounds, and a further penalty not exceeding two pounds for every day during which such refusal continues, and every director and manager of the company who shall know- ingly authorize or permit such refusal shall incur the like penalty ; and in addition to the above penalty, as respects companies registered in England and Ireland, any judge sitting in chambers, or the vice-warden of the stan- naries, in the case of companies subject to his jurisdiction, may by order compel an immediate inspection of the register. 33. Any company under this Act may, upon giving notice by advertise- ment in some newspaper circulating in the district in which the registered office of the company is situa.ted, close the register of members for any time or times not exceeding in the whole thirty days in each year. 34. Where a company has a capital divided into shares, whether such shares may or may not have been converted into stock, notice of any increase in such capital beyond the registered capital, and where a company has not a capital divided into shares, notice of any increase in the nilmber of mem- bers beyond the registered number, shall be given to the regUjrar in the case of an increase of capital, within fifteen days from the date ofthe passing of the resolution by which such increase has been authorized ; and in the case of an increase of members, within fifteen days from the time at which {d) See 43 Vict. o. 19, s. 6, infra. («) Sect. 39. (/) Sect. 33. Joint Stock Companies. 933 Buoh increase of members hag been resolved on or has taken place, and the n. Distribution registrar shall forthwith record the amount of such increase of capital or '-^ Capit al. members : if such notice is not given within the period aforesaid, the com- pany in default shall incur a penalty not exceeding five pounds for every day during which such neglect to give notice continues, and every director and manager of the company who shall knowingly and wilfully authorize or per- mit such default shall incur the like penalty. 35. If the name of any person is, without sufficient cause, entered in or Remedy for im- omitted from the register of members of any company under this Act, or if P^P^T ^^^ <" default is made, or unnecessary delay takes place in entering on the register entry in register, the fact of any person having ceased to be a member of the company, the person or member aggrieved, or any member of the company, or the com- pany itself, may, as respects companies registered in England or Ireland, by motion in any of her Majesty's superior courts of law or equity, or by ap- pUoation to a judge sitting in chambers, or to the vice-warden of the stan- naries in the case of companies subject to his jurisdiction, and as respects companies registered in Scotland by summary petition to the court of session, or in such other manner as the said courts may direct, apply for an order of the court that the register may be rectified ; and the court may either re- fuse such application, with or without cost, to be paid by the applicant, or it may, if satisfied of the justice of the ease, make an order for the rectification of the register, and may direct the company to pay all the costs of such motion, application, or petition, and any damages the party aggrieved may have sustained : the court may, in any proceeding under this section, decide on any question relating to the title of any person who is a. party to such proceeding to have his name entered in or omitted from the register, whether such question arises between two or more members or alleged members, or between any members or alleged members and the company, and generally the court may in any such proceeding decide any question that it may be necessary or expedient to decide for the rectification of the register ; pro- vided that the court [if a court of common law, may direct an issue to be tried, in which any question of law may be raised, and a writ of error or appeal, in the manner directed by "The Common Law Procedure Act, 1834," shaUlie](i7). 86. Whenever any order has been made rectifying the register, in the case Notice to regis- of a company hereby required to send a list of its members to the registrar, *T'"^ "' ™° ^2™- the court shaU, by its order, direct that due notice of such rectification be °^ ° "^^Sistfar. given to the registrar. 37. The register of members shall be primA facie evidence of any matters Ee?istertobo by this Act directed or authorized to be inserted therein (A). evidence. Liability of Members. LiahHity of Members. 38. In the event of a company formed under this Act being wound up, _ , ; — every present and past member (») of such company shall be liable to contri- ^^'''^j^ °\ ^ bute to the assets of the company to an amount sufiicient for payment of the members of corn- debts and Kabilities of the company, and the costs, charges, and expenses of pany. the winding-up, and for the payment of such sums as may be required for the adjustment of the rights of the contributories amongst themselves, with the qualifications following ; (that is to say) (A), (I.) No past member shall be liable to contribute to the assets of the com- pany if he has ceased to be a member for a period of one year or upwards prior to the commencement (^ of the winding-up : (2.) No past member shall be liable to contribute in respect of any debt or liability of the company contracted after the time at which he ceased to be a member : (3.) No past member shall be liable to contribute to the assets of the com- pany unless it appears to the Court that the existing members are unable to satisfy the contributions required to be made by them in pursvfimce of this Act : (4.) In the case of a company limited by shares, no contribution shall be (y) Words within brackets repealed ing in the name of a married woman, by a & 45 Vict. c. 59. see 45 & 46 Vict. o. 75, ss. 6 — 9. (A) See sect. 25. {*) Sect. 109. (i) Sect. 23. As to shares stand- (l) Sects. 84, 130. 3q2 934 25 & 26 Vict. cap. 89, , H. LiaMUty of Manhars, required from any member exceeding the amount, if any, unpaid on the shares in respect of ■which he is liable as a present or past member : (5.) In the case of a company limited by guarantee, no contribution shall be required from any member exceeding the amount of the under- taking entered into on bis behalf by the memorandum of associa- tion [m) : (6.) Nothing in this Act contained shall invalidate any provision con- tained in any policy of insurance or other contract whereby the liability of individual members upon any such policy or contract iff restricted, or -whereby the funds of the company are alone made liable in respect of such policy or contract : (7.) No sum due to any member of a company, in his character of a member, by way of dividends, profits, or otherwise, shall be deemed to be a debt of the company, payable to such member in a case of competition between himself and any other creditor not being a member of the company ; but any such sum may be taken into account, for the purposes of the final adjustment of the rights of the contributories amongst themselves («). PART III. Provisionafor Protection of Creditors, Kegistered office of company. Notice of situa^ tion of regis- tered office. Publication of name by a limited com- pany. Penalties on non-publication of name. MAUAGEMEira AUD AuMmlSTEATION OP CoMPAHIEa AUD ASSOCIATIONS TINDEB THIS Act. Provisions for Frotection of Creditors. 89. Every company under this Act shall have a registered office to which all communications and notices may be addressed (o) . If any company under this Act carries on business without having such an office, it shall incur a penalty not exceeding five pounds for every day during which business is so carried on. 40. Notice of the situation of such registered office, and of any change therein, shall be given to the registrar, and recorded by him : until such notice is given the company shall not be deemed to have complied with the provisions of this Act with respect to having a registered office. 41. Every limited company under this Act, whether limited by shares or by guarantee, shall paint or affix, and shall keep painted or affixed, its name on the outside of every office or place in which the business of the company is carried on, in a conspicuous position, in letters easily legible, and shall have its name engraven in legible characters on its seal, and shall have its name mentioned in legible characters in all notices, advertisements, and other official publications of such company, and in all bills of exchange, promissory notes, indorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of such company, and in all bills of parcels, invoices, receipts, and letters of credit of the company. 42. If any limited company under this Act does not paint or afSx, and keep painted or affixed, its name in manner directed by this Act, it shall be liable to a penalty not exceeding five pounds for not so painting or affixing its name, and for every day during which such name is not so kept painted or affixed, and every director and manager of the company who shall know- ingly and wilfully authorize or permit such default shall be liable to the like penalty ; and if any director, manager, or officer of such company, or any person on its behalf, uses or authorizes the use of any seal purporting to be a seal of the company whereon its name is not so engraven as aforesaid, or issues or authorizes the issue of any notice, advertisement, or other official publication of such company, or signs or authorizes to be signed on behalf of such company any bill of exchange, promissory note, indorsement, cheque, order for money or goods, or issues or authorizes to be issued any bill of parcels, invoice, receipt, or letter of credit of the company, wherein its (m) Sect. 9 (4). («) Sect. 101. (o) Sect. 62. Joint Stock. Companies. 935 name is not mentioned in manner aforesaid, ho shall be liable to a penalty HI- Frovmms of fifty pounds, and shall further be personally liable to the holder of any ^'"' q^S^T °^ Buoh bill of exchange, promissory note, cheque, or order for money or goods, 1_ for the amount thereof, unless the same is duly paid by the company. 43. Every limited company under this Act shall keep a register of all Eegisterof mortgages and charges specifically affecting property of the company, and mortgages. shall enter in such register in respect of each mortgage or charge a short description of the property mortgaged or charged, the amount of charge created, and the names of the mortgagees or persons entitled to such charge : if any property of the company is mortgaged or charged -without such entry as aforesaid being made, every director, manager, or other oflicer of the company who knowingly and wilfully authorises or permits the omission of such entry, shall incur a penalty not exceeding fifty pounds : the register of mortgages required by this section shall be open to inspection by any creditor or member of the company at all reasonable times ; and if such inspection is refused, any ofScer of the company refusing the same, and every director and manager of the company authorizing or knowingly and wilfully permitting such refusal, shall incur a penalty not exceeding five pounds, and a further penalty not exceeding two pounds for every day during which such refusal continues ; and in addition to the above penalty, as respects companies registered in England and Ireland, any judge sitting in chambers, or the Vice -Warden of the Stannaries, in the case of companies subject to his jurisdiction (p), may by order compel an immediate inspection of the register. 44. Eyery limited banking company, and every insurance company, and Certain com- deposit, provident, or benefit society under this Act shall, before it commences ''^^^^'"l'^'''^'' business, and also on the first Monday in February and the first Monday in entered in August in every year during which it carries on but^iness, make a statement Schedule. in the Form marked D. in the first schedule hereto, or as near thereto as circumstances will admit, and a copy of such statement shall bo put up in a conspicuous place in the registered office of the company, and in every branch office or place where the business of the company is carried on, and if default is made in compliance with the provisions of this section, the com- pany shall be liable to a penalty not exceeding five pounds for every day during which such default continues, and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall incur the like penalty. _ . _ Every member and every creditor of any company mentioned in this section shall be entitled to a copy of the above-mentioned statement on payment of a sum not exceeding sixpence. 46. Every company under this Act, and not having a capital divided into List of directors shares, shall keep at its registered office a register containing the names and *eiSt^' '° addresses and the occupations of its directors or managers, and shall send to the Registrar of Joint Stock Companies a copy of such register, and shall from lime to time notify to the registrar any change that takes place in such directors or managers. 46. If any company under this Act, and not having a capital divided into Penalty on corn- shares, makes default in keeping a register of its directors or managers, f™J™\er'^?" or in sending a copy of such register to the registrar in compliance with the ^etors.""^ ° foregoing rules, or in notifying to the registrar any change that takes place In such directors or managers, such delinquent company shall incur a penalty not exceeding five pounds for every day during which such default continues, and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall incur the like penalty. 47. A promissory note or bill of exchange shaU be deemed to have been Promissory made, accepted, or indorsed on behalf of any company under this Act, if notes and bills made, accepted, or indorsed in the name of the company by any person ° excnange. acting under the authority of the company, or if made, accepted or indorsed by or on behalf or on account of the company, by any person acting under the authority of the company (?). 48. If any company under this Act carries on business when the number Prohibition of its members is less than seven (r), for a period of six months after the ^f^*;^™^! number has been so reduced, every person who is a member of such company jesa thaS^ven during the time that it so carries on business after such period of six members. (p) Sect. 35. (?) Sect. 95 (3). (r) Sect. C. 936 25 & 26 Vict. cap. 89. m. ProviBions for Protection of Creditors^ FrovisioriB for Protection of General meeting of company. Power to alter regulations by special resolu- tion. Definition of special resolu- tion. Provision where no n^gulations as to meetings. Registry of special resolu- tions. months, and is cognisant of the fact that it is so carrying on business with fewer than seven members, shall be severally liable for the payment of the whole debts of the company contracted during such time, and may be sued for the same, without the joinder in the action or suit of any other member. Provisions for Protection of Members. 49. A general meeting of every company under this Act shall be held once at the least in every year (»•), 60. Subject to the provisions of this Act, and to the conditions contained in the memorandum of association (s), any company formed under this Act may, in general meeting, from time to time, by passing a special resolution in manner hereinafter mentioned, alter all or any of the regulations of the company contained in the articles of association or in the Table marked A in the first schedule, where such table is applicable to the company, or make new regulations to the exclusion of or in addition to all or any of the regulations of the company; and any regulations so made by special resolution shall be deemed to be regulations of the company of the same validity as if they had been originally contained in the articles of association, and shall be subject in like manner to be altered or modified by any subsequent special resolution. 61. A resolution passed by a company under this Act shall be deemed to be special whenever a resolution has been passed by a majority of not less than three-fourths of such members of the company for the time being entitled, according to the regulations of the company, to vote as may be present, in person or by proxy (in cases where by the regulations of the company proxies are allowed), at any general meeting of which notice specifying the intention to propose such resolution has been duly given, and such resolution has been confirmed by a majority of such members for the time being entitled, according to the regulations of the company, to vote as may be present, in person or by proxy, at a subsequent general meeting, of which notice has been duly given, and held at an interval of not less than fourteen days, nor more than one month from the date of the meeting at which such resolution was first passed ; at any meeting mentioned in this section, unless a poll is demanded by at least five members, a declaration of the chairman that the resolution has been carried shall be deemed conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against the same : notice of any meeting shall, for the purposes of this section, be deemed to be duly given and the meeting to be duly held, whenever such notice is given and meeting held in manner prescribed by the regulations of the company : in computing the majority under this section, when a poU is demanded, reference shall be had to the number of votes to which each member is entitled by the regulations of the company. 63. In default of any regulations as to voting every member shall have one yote(i), and in default of any regulations as to summoning general meetings a meeting shall be held to be duly summoned of which seven days' notice in writing has been served on every member in manner in which notices are required to be served by the table marked A in the first schedule hereto, and in default of any regulations as to the persons to summon meetings five members shall be competent to summon the same, and in default of any regulations as to who is to be chairman of such meeting, it shall be com- petent for any person elected by the members present to preside. 53. A copy of any special resolution that is passed by any company under thisAot, shall be priated and forwarded to the registrar of joint stock com- panies, and be recorded by him : if such copy is not so forwarded within fifteen days from the date of the confirmation of the resolution, the company shall incur a penalty not exceeding two pounds for every day after the expiration of such fifteen days during which such copy is omitted to be forwarded, and every director and manager of the company who shall know- ingly and wilfully authorize or permit such default shall incur the like penalty. {»■) See Krst Schedule, Tabic A. (29), and sect, 39 of 30 & 31 Vict. 0. 131, infra. («) Sect. 6. \t) Sohed, I, Table A, (44), Joint Stock Companies. 937 84. Where articles of association have been registered, a copy of every ni. Pmviswm special resolution for the time being in force shall be annexed to or embodied for Prouction of in every copy of the articles of association that may be issued after the "' ' passing of such resolution ; where no articles of association have been re- Copies of special gistered, a copy of any special resolution shall be forwarded in print to any resolutions, member requesting the same on payment of one shilling or such less sum as the company may direct ; and if any company makes default in complying with the provisions of this section it shall incur a penalty not exceeding one pound for each copy in respect of which such default is made ; and every director and manager of the company who shall knowingly and wilfully authorize or pennit such default shall incur the like penalty. fiS. Any company under this Act may, by instrument in writing under Execution of its common seal, empower any person, either generally or in respect of any flecds abroad, specified matter, as its attorney, to execute deeds on its behalf in any place not situate in the United Kingdom («() ; and every deed signed by such attorney, on behalf of the company, and under his seal, shall be binding on the company, and have the same effect as if it were under the common seal of the company. 56. The boai'd of trade may appoint one or more competent inspectors to Examination of examine into the affairs of any company under this Act, and to report affau-s of com- thereon, in such manner as the board may direct, upon the appUoations ^raT ^"^^^°" following ; (that is to say,) (1.) In the case of a banking company that has a capital divided into shares, upon the application of members holding not less than one-third part of the whole shares of the company for the time being issued : (2.) In the case of any other company that has a capital divided into shares, upon the application of members holding not less than one-fifth part of the whole shares of the company for the time being issued : (3.) In the case of any company not having a capital divided into shares, upon the application of members being in number not less than one-fifth of the whole number of persons for the time being entered on the register of the company as members. 67. The application shall be supported by such evidence as the board of Application for trade may require for the purpose of showing that the applicants have good inspection to be reason for requiring such investigation to be made, and that they are not ev^Me ^ '''' actuated by malicious motives in instituting the same ; the board of trade may also require the applicants to give security for payment of the costs of the inquiry before appointing any inspector or inspectors. 58. It shall be the duty of all officers and agents of the company to Inspection of produce for the examination of the inspectors all books and documents '^°^^- in their custody or power: any inspector may examine upon oath the officers and agents of the company in relation to its business, and may administer such oath accordingly : if any officer or agent refuses to produce any book or document hereby directed to be produced, or to answer any question relating to the affairs of the , company, he shall incur a penalty not exceeding five pounds in respect of each offence (x). 69. Upon the conclusion of the examination the inspectors shall report Result of exami- their opinion to the board of trade ; such report shall be written or printed, ?^™' .5?'"' as the board of trade directs ; a copy shall be forwarded by the board of ™ trade to the registered office of the company, and a further copy shall, at the request of the members upon whose application the inspection was made, be delivered to them or to any one or more of them : all expenses of and incidental to any such examination as aforesaid shall be defrayed by the members upon whose applications the inspectors were appointed, unless the board of trade shall direct the same to be paid out of the assets of the company, which it is hereby authorized to do. 60. Any company under this Act may by special resolution appoint Power of corn- inspectors for the purpose of examining into the affairs of the company: pany to appoint the inspectors so appointed shall have the same powers and perform the {«) See 27 Vict. o. 19, " An Act Countries to have Official Seals to to enable joint Stock Companies be used for such Countries." carrying on Business in Poreign {x) Schedule I., Table A. (78). 938 25 & 26 Vict. cap. 89. HI. Provisions for Protection of Eeport of in- Bpectors to be evidence. l^otices. Service of notices on company. Rules as to notices by letter. Authentication of notices of company. Legal Proceedings. Becovery of penalties. Application of penalties. Evidence of proceedings at meetings. same duties as inspectors appointed ty the board of trade, with this exception, that, instead of maiing their report to the hoard of trade, they shall make the same in such manner and to such persons as the company in general meeting directs ; and the officers and agents of the company shall incur the same penalties, in case of any refusal to produce any book or document hereby required to be produced to such inspectors, or to answer any question, as they would have incurred if such inspector had been appointed by the board of trade. 61. A copy of the report of any inspectors appointed under this Act, authenticated by the seal of the company into whose affairs they have made inspection, shall be admissible in any legal proceeding, as evidence of the opinion of the inspectors in. relation to any matter contained in such report. Notices. 62. Any summons, notice, order, or other document required to be served upon the company may be served by leaving the same, or sending it through the post in a prepaid letter addressed to the company, at their registered office [y). 63. Any document to be served by post on the company shaJl be posted in such time as to admit of its being delivered in the due course of delivery within the period (if any) prescribed for the service thereof ; and in proving service of such document it shall be sufficient to prove that such document was properly directed, and that it was put as a prepaid letter into the post office. 64. Any summons, notice, order or proceeding requiring authentication by the company, may be signed by any director, secretary, or other autho- rized officer of the company, and need not be under the common seal of the company, and the same may be in writing or in print, or partly in writing and partly in print. 65. AU offences under this Act made punishable by any penalty may be prosecuted summarily before two or more justices, as to England, in manner directed by an Act passed in the session holden in the eleventh and twelfth years of the reign of her Majesty Queen Victoria, chapter forty-three, in- tituled " An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions within England and Wales with respect to Sum- mary Convictions and Orders," or any Act amending the same ; and as to Scotland, before two or more justices or the sheriff of the county, in manner directed by the Act passed in the session of Parliament holden in the seven- teenth and eighteenth years of the reign of Her Majesty Queen Victoria, chapter one hundred and four, intituled " An Act to amend and consolidate the Acts relating to Merchant Shipping," or any Act amending the same, as regards offences in Scotland against that Act, not being offences by that Act described as felonies or misdemeanors ; and as to Ireland, in manner directed by the Act passed in the session holden in the fourteenth and fifteenth years of the reign of her Majesty Queen Victoria, chapter ninety-three, intituled " An Act to consolidate and amend the Acts regulating tiie Pro- ceedings of Petty Sessions and the Duties of Justices of the Peace out of Quarter Sessions in Ireland," or any Act amending the same. 66. The justices or sheriff imposing any penalty under this Act may direct the whole or any part thereof to be applied in or towards payment of the costs of the proceedings, or in or towards the rewarding the person upon whose information or at whose suit such penalty has been recovered ; and subject to such direction, all penalties shall be paid into the receipt of her Majesty's Exchequer in such manner as the Treasury may direct, and shall be carried to and form part of the consolidated fund of the United Ejngdom. 67. Every company under this Act shall cause minutes of aU resolutions and proceedings of general meetings of the company, and of the directors or managers of the company in cases where there are directors or managers, to be duly entered in books to be from time to time provided for the purpose, and any such minute as aforesaid, if purporting to be signed by the chairman of the meeting at which such resolutions were passed or proceedings had, or (y) Sect. 39. Joint Stock Companies. 939 by the chairman of the next succeeding meeting, shall be received as evidence ni. Legal in all legal proceedings [z) ; and until the contrary is proved, every general Pro ceedm ga. meeting of the company or meeting of directors or managers in respect of the proceedings of which minutes have been so made shall be deemed to have been duly held and convened, and all resolutions passed thereat or proceed- ings had to have been duly passed and had, and all appointments of directors, managers or liquidators shall be deemed to be valid, and all acts done by such directors, managers or liquidators shall bo valid, notwithstanding any defect that may afterwards be discovered in their appointments or quaUiica- tions. 68. In the case of companies under this Act, and engaged in working Jurisdiotion of mines within and subject to the jurisdiction of the stannaries, the court of vieu-warden of the vice- warden of the stannaries shall have and exercise the like jurisdiction «''""i'"'"^i. and powers, as well on the common law as the equity side thereof, which it now possesses by custom, usages or statute in the case of unincorporated companies, but only so far as such jurisdiction or powers are consistent with the provisions of this Act and with the constitution of companies as pre- scribed or required by this Act ; and for the purpose of giving fuller effect to such jurisdiction in all actions, suits or legal proceedings instituted in tho said court in causes or matters whereof the court has cognizance, all process issuing out of the same, and all orders, rules, demands, notices, warrants and summons required or authorized by the practice of the court to be served on any company, whether registered or not registered, or any member or con- tributory thereof, or any officer, agent, director, manager or servant thereof, may be served in any part of England without any special order of the vice- warden for that purpose, or by such special order may be served in any part of the United Kingdom of G-reat Britain and Ireland, or in the adjacent islands, parcel of the dominions of the crown, on such terms and conditions as the court shall think fit ; and all decrees, orders and judgments of the said court made or pronounced in such causes or matters may be enforced in the same manner in which degrees, orders and judgments of the court may now by law be enforced, whether within or beyond the local limits of the stannaries ; and the "seal of tho said court, and the signature of the registrar thereof, shall be judicially noticed by all other courts and judges in England, and shall require no other proof than the production thereof ; the registrar of the said court, or the assistant registrar, in making sales under any decrees or order of the court shall be entitled to the same privilege of selling by auction or competition without a licence, and without being liable to duty, as a judge of the court of chancery is entitled to in. pursuance of the Acts in tliat behalf. 69. Where a limited company is plaintiff or pursuer in any action, suit, or Provision as to other legal proceeding, any judge having jurisdiction in the matter may, if broucht by'c"r- it appears by any credible testimony that there is reason to believe that if the tain Emitod defendant be successful in his defence tho assets of the company will be companieii. iusuffioient to pay his costs, require sufficient security to be given for such costs, and may stay all proceedings until such security is given . 70. In any action or suit brought by the company against any member to Declaration in recover any call or other moneys due from such member in his character of action against member, it shall not be necessary to set forth the special matter, but it shall bo sufficient to allege that the defendant is a member of the company, and is indebted to the company in respect of a call made or other moneys due whereby an action or suit hath accrued to the company. Alteration of Alteration of Forms. ^'"'"''- 71. The forms set forth in the second schedule hereto, or forms as near Board of Trade thereto as circumstances admit, shall be used in all matters to which such ?"gJ!:'*|L'°™"* forms refer ; the board of trade may from time to time make such alterations iu the tables and forms contained in the first schedule hereto, so that it does not increase the amount of foes payable to the registrar iu the said schedule mentioned, and in the forms in the second schedule, or make such additions to tho last-mentioned foi-ms as it deems requisite : any such table or form, when altered, shall be published in the London Gazette, and upon such publication being made such table or form shall have the same force as if it (z) Sect. 154. 940 25 & 26 Vict. cap. 89. m. AUnration were included in the sotedule to this Act, but no alteration made by the of Form s. ijoard of trade in the table marked A. contained in the first schedule shall affect any company registered prior to the date of such alteration, or repeal, as respects such company, any portion of such table. ArbitTalMyni, Power for com- panies to refer matters to arbi- tration. Provisions of 22 & 23 Vict. 0. 59, to apply. Ariitrations, , 73. Any company under this Act may from time to time, by ■writing under its common seal, agree to refer and may refer to arbitration, in accordance with "The Kail way Companies Arbitration Act, 1859," any existing or future difference, question, or other matter whatsoever in dispute between itself and any other company or person, and the companies parties to the arbitration may delegate to the person or persons to whom the reference is made power to settle any terms or to determine any matter capable of being lawfully settled or determined by the companies themselres, or by the directors or other managing body of such companies. 73. AU the provisions of "The Railway Companies Arbitrations Act, 1859," shall be deemed to apply to arbitrations between companies and persons in pursuance of this Act ; and in the construction of such provi- sions "the companies" shall be deemed to include companies authorized by this Act to refer disputes to arbitration. Preliminary, Meaning of con- tributory. Nature of lia^ biHty of contri- butory. Contributories in case of death. Contributories in case of bank- ruptcy. Contributories in case of mai> riage. PAET IV. WiKDiNQ UP OF Companies akd Associations tjneee this Act. Trelimmary. 74. The term " contributory ' | shall mean every person liable to contribute to the assets of a company under this Act, in the event of the same being wound up (a) : it shall also, in all proceedings for determining the persons who are to be deemed contributories, and in all proceedings prior to the final determination of such persons, include any person alleged to be a con- tributory. 75. The liability of any person to contribute to the assets of a company under this Act in the event of the same being wound up, shall be deemed to create a debt (in England and Ireland of the nature of a specialty) accruing due from such person at the time when his liability commenced (J), but payable at the time or respective times when calls are made as hereinafter mentioned for enforcing such liability ; and it shall be lawful in the case of the bankruptcy of any contributory to prove against his estate the estimated value of his liability to future calls, as well as calls already made. 76. If any contributory dies either before or after he has been placed on the list of contributories hereinafter mentioned, his personal representatives, heirs, and devisees shall be liable in a due course of administration to contii- bute to the assets of the company in discharge of the liability of such deceased contributory, and such personal representative, heirs, and devisees shall be deemed to be contributories accordingly. 77. If any contributory becomes bankrupt, either before or after he has been placed on the list of contributories, his assignees shall be deemed to represent such bankrupt for all the purposes of the winding-up, and shall be deemed to be contributories accordingly, and may be called upon to admit toi proof against the estate of such bankrupt, or otherwise to allow to be paid out of his assets in due course of law, any moneys due from such bankrupt in respect of his liability to contribute to the assets of the company being wound up ; and for the purposes of this section any person who may have taken the benefit of any Act for the relief of insolvent debtors before the eleventh day of October one thousand eight hundred and sixty-one shall be deemed to have become bankrupt. 78. If any female coitributory marries, either before or aft?r she has been placed on the list of contributories, her husband shall during the continuance (a) Sect. 38. As to shares standing in the name of a married woman, see 46 & 46 Vict. c. 75, ss. 6—9. (*) Sect. 38. Joint Stock Companies. 941 of the marriage be liable to contribute to the assets of the company the same IV. Preliminary. sum as she would have been liable to contribute if she had not married, and he shall be deemed to be a contributory accordingly (c) . Winding up iy Winding up by Cowt. Voun. 79. A company under this Act may be wound up by the court as here- Circumstanoes inafter defined {d), under the following circumstances ; (that is to say,) under which (I.) Whenever the company has passed a special resolution (e) requiring wouSduphT ^ the company to be wound up by the court : court. (2.) Whenever the company does not commence its business within a year from its incorporation, or suspends its business for the space of a whole year : (3.) Whenever the members are reduced in number to less than seven (/) : (4.) Whenever the company is unable to pay its debts ; (6.; Whenever the court is of opinion that it is just and equitable that the company should be wound up. 80. A company under this Act shall be deemed to be unable to pay its Company when jg^jtg^ deemedunable (I.) Whenever a creditor, by assignment or otherwise, to whom the com- "P")" "^ • pany is indebted, at law or in equity, in a sum exceeding fifty pounds then due, has served on the company, by leaving the same at their registered office, a demand under his hand requiring the company to pay the sum so due, and the company has for the space of three weeks succeeding the service of such demand neglected to pay such sum, or to secure or compound for the same to the reason- able satisfaction of the creditor : (2.) Whenever, in England and Ireland, execution or other process issued on a judgment, decree or order obtained in any court in favour of any creditor, at law or in equity, in any proceeding instituted by such creditor against the company, is returned unsatisfied in whole or in part : (3.) Whenever, in Scotland, the induoise of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest have expired without payment being made : (4.) Whenever it is proved to the satisfaction of the court that the com- pany is unable to pay its debts. 81. The expression "the court," as used in this part of this Act, shall J?^^'*'""",? mean the following authorities ; (that is to say,) ^™ In the case of a company engaged in working any mine within and sub- ject to the jurisdiction of the stannaries, — the court of the vice- warden of the stannaries, unless the vice-warden certifies that in his opinion the company would be more advantageously wound up in the high court of chancery, in which case "the court" shall mean the high court of chancery : In the case of a company registered in England, that is not engaged in working any such mine as aforesaid, — the high court of chancery : In the case of a company registered in Ireland, — the court of chancery in Ireland : In all cases of companies registered in Scotland, — the court of session in either division thereof : Provided that where the court of chancery in England or Ireland makes an order for winding up a company imder this Act, it may, if it thinks fit, direct all subsequent proceedings for winding up (?) the same to be had in the court of bankruptcy having jurisdiction in the place in which the registered office of tlie company is situate ; and thereupon such last-mentioned court of bankruptcy shall, for the purposes of winding up the company, be deemed to be " the court " within the meaning of the Act, and shall have for the pur- poses of such winding up all the powers of the high ecnart of chancery, or of the court of chancery in Ireland, as the case may require. 82. Any application to the court for the winding up of a company under Application for this Act shaU be by petition; it may be presented by the company, or by J2^|^P*° (c) See 45 & 46 Vict. c. 75, ss. 6—9. (/) Sects. 6 and 48. ^^ ' '°°' (rf) Sect. 81. (?) Sect. 12 of 30 & 31 Vict. c. 131, \e) Sect. 51. ««/'■«• 942 25 & 26 Vict. cap. 89. rV. Winding up hy Court. Power of court. Commencement of "winding np by coxirt. Court may grant injunction. Course to be pursued by court on hearing petition. Actions atid suits to be stayed after order for ■winding up. Copy of order to be forwarded to registrar. . Power of court to stay proceed- ings. Effect of order on share capital of company limited by guai-antee. Court may havb regard to wishes of creditors or contributoriea. any one or more creditor or creditors (A), contributory or contributoriea (i), of the company, or by all or any of the above parties, together or separately ; and every order which may be made on any such petition shall operate in favour of aU the creditors and aU the oontributories of the company in the same manner as if it had been made upon the joint petition of a creditor and a contributory. 83. Any judge of the high court of chancery may do in chambers any act ■which the court is hereby authorized to do ; and the ■yice-^warden of the stannaries may direct that a petition for winding up a company be heard by him at such time and at such place within the jurisdiction of the stannaries, or within or near to the pla/3e where the registered office of the company is situated, as he may deem to be convenient to the parties concei-ned, or (with the consent of the parties concerned) at any place in England ; and all orders made thereiipon shall have the same force and effect as if they had been made by the vice-warden sitting at Truro or elsewhere ■within the jurisdiction of the court, and all parties and persons summoned to attend at the hearing of any such petition shall be compellable to give their attendance before the vice-warden by like process, and in like manner as at the hearing of any cause or matter at the usual sitting of the said court ; and the registrar of the court may, subject to exception or appeal to the vice-warden as hereto- fore used, do and exercise such and the like acts and powers in the matter of winding up (j) as he is now used to do and exercise in a suit on the equity side of the said court. 84. A winding up of a company by the co^urt shall be deemed to commence at the time of the presentation of the petition for the winding up (k). ' 85. The court may at any time after the presentation of a petition for winding up a company imder this Act, and before making an order for winding up the company, upon the application of the company, or of any creditor or contributory of the company, restrain further proceedings in any action, suit, or proceeding against the company, upon such terms as the court thinks fit ; the court may also at any time after the presentation of such petition, and before the first appointment of liquidators, appoint provisionally an official liquidator of the estate and effects of the comipany. 86. Upon hearing the petition the court may dismiss the same -with or without costs, may adjourn the hearing conditionally or unconditionally, and may make any interim order, or any other order that it deems jiist. 87. When an order has been made for winding up a company under this Act, no suit, action, or other proceeding shall be proceeded with or commenced against the company, except "with the leave of the court, and subject to such terms as the court may impose [I). 88. When an order has been made for ■winding up a company under this Act, a copy of such order shall forthwith be forwarded by the company to the registrar of joint stock companies, who shall make a minute thereof in his books relating to the company. 89. The court may at any time after an order has been made for ■winding up a company, upon the application by motion of any creditor or contributory of the company, and upon proof to the satisfaction of the court that aU pro- ceedings in relation to such winding up ought to be stayed, make an order staying the same, either altogether or for a limited time, on such terms and subject to such conditions as it deems fit. 90. When an order has been made for winding up a company limited by guarantee and having a capital divided into shares, any share capital that may not have been called up shall be deemed to be assets of the company, and to be a debt (in England and Ireland of the nature of a specialty (m) ) due to the company from each member to the extent of any sums that may be unpaid on any shares held by him, and payable at such time as may be appointed by the court. 91. The court may, as to all matters relating to the winding up, have regard to the wishes of the creditors or contributoriea, as proved to it by any sufficient evidence, and may, if it thinks it expedient, direct meetings of the (A) See33&34Vict.c. 61,ss. 2, 21. (i) But see s. 40 of 30 & 31 Vict. 0. 131, infra. U) Sect. 12 of 30 & 31 Vict. c. 131, infra. (k) See sect. 130. (l) See sect. 160. ()k) Sects. 75, 134. Joint Stock Companies. 943 creditors or contributories to be summoned, held and conducted in such IV- Winding up manner as the court directs, for the purpose of ascertaining their wishes, and ** Cour t. may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the court ; in the case of creditors, regard is to be had to the value of the debts due to each creditor, and in the case of contributories to the number of votes conferred on each contributory by the regulations of the company. O/Jlcial Official Liquidators. Liquidators. 92. For the purpose of conducting the proceedings in winding up a company Appointment of and assisting the court therein, there may be appointed a person or persons to official liqui- be called an official liquidator or ofSoial liquidators ; and the court having '^^^■ jurisdiction may appoint such person or persons, either provisionally or otherwise, as it thinks iit, to the office of official liquidator or official liqui- dators («) ; in all oases if more persons than one are appointed to the office of official liquidator, the court shall declare whether any act hereby required or authorized to be done by the official liquidator is to be done by all or any one or more of such persons. The court may also determine whether any a:id what security is to be given by any official liquidator on his appointment ; if no official liquidator is appointed, or during any vacancy in such appoint- ment, all the property of the company shall be deemed to be in the custody of the court. 98. Any official liquidator may resign or be removed by the court on due Rcaignations, cause shown : and any vacancy in the office of an official liquidator appointed removals, filling by the court shall be fiUed by the court (o) : there shaU be paid to the official aK^Mntn,- liquidator such salary or remuneration, by way of per centage or otherwise, tion. as the court may direct ; and if more liquidators than one are appointed, such remuneration shall be distributed amongst them in such proportions aa the court directs. 94. The official liquidator or liquidators shall be described by the style of Style and duties the official liquidator or official hquidators of the particular company in of official liqui- respect of which he is or they are appointed, and not by his or their indi- '"'■"'^' vidual name or names ; he or they shall take into his or their custody, or under his or their control, all the property, effects, and things in actions to which the company is or appears to be entitled, and shall perform such duties in reference to the winding up of the company as may be imposed by the court [p). 96. The official liquidator shall have power, with the sanction of the court, Powers of oiBcial to do the following things (q) : liquidator. To bring or defend any action, suit, or prosecution, or other legal proceed- ing, civil or criminal, in the name and on behalf of the company : To carry on the business of the company, so far as may be necessary, for the beneficial winding-up of the same {r) : To sell the real and personal and heritable and moveable property, effects, and things in action of the company by public auction or private con- tract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels : To do all acts, and to execute, in the name and on behalf of the company, all deeds, receipts, and other documents, and for that purpose to use, when necessary, the company's seal : To prove, rank, claim, and draw a dividend, in the matter of the bank- ruptcy or insolvency or sequestration of any contributory, for any balance against the estate of such contributory, and to take and receive dividends in respect of such balance, in the matter of bankruptcy or insolvency, or sequestration, as a separate debt due from such bankrupt or insolvent, and rateably with the other separate creditors : To draw, accept, make, and indorse any bill of exchange or promissory note in the name and on behalf of the company, also to raise upon the security of the assets of the company from time to time any requisite sum or sums of money (s) ; and the drawing, accepting, making, or indorsing of every such bill of exchange or promissory note as aforesaid («) Sect. 85. (?) Sect. 96. (o) Sect. 133(3). (»•) Sects. 131, 153. Ip) Sect. 203. (s) Sect. 47. 944 25 & 26 Vict. cap. 89. rV. Official Liquidators. Discretion of official liqiii- dator. Appointment of solicitor to offi- cial liquidator. Ordinary Powers of Court. Collection and application of Provision as to representative contributories. Power of court to require deU-"" very of property. PoTver of court to order pay- ment of debts by contributory. on behalf of tKe company shall have the same effect with respect to the liability of such company as if such bill or note had been drawn, accepted, made, or endorsed by or on behalf of such company in the course of carrying on the business thereof : To take out, if necessary, in his official name, letters of administration to any deceased contributory, and to do in his official name any other act that may be necessary for obtaining payment of any moneys due from a contributory or from his estate, and -which act cannot be conveniently done in the name of the company ; and in all cases where he takes out letters of administration, or otherwise uses his official name for obtaining payment of any moneys due from a contributory, such moneys shall for the purpose of enabling him to take out such letters or recover such moneys, be deemed to be due to the official liquidator himself : To do and execute all such other things as may be necessary for vrinding up the affairs of the company and distributing its assets (<). 96. The court may provide by any order that the official liquidator may exercise- any of the above powers without the sanction or intervention of the court, and where an official liquidator is provisionally appointed («), may limit and restrict his powers by the order appointing him («). 97. The official liquidator may, with the sanction of the court, appoint a solicitor or law agent to assist him in the performance of his duties. Ordinary Powers of Court. 98. As soon as may he after making an order for winding up the company, the court shall settle a list of contributories (j/), with power to rectify the register of members in all oases where such rectification is required in pur- . suance of this Act (z), and shall cause the assets of the company to be collected and applied in discharge of its liabilities (a). 99. In settling the list of contributories, the court shall distinguish between persons who are contributories in their own right and persons who are con- tributories as being representatives of or being liable to the debts of others (i) ; it shall not be necessary, where the personal representative of any deceased contributory is placed on the list, to add the heirs or devisees of such contributory, nevertheless such heirs or devisees may be added as and when the court thinks fit. 100. The court may, at any time after making an order for winding up a company, require any contributory for the time being settled on the list of contributories, trustee, receiver, banker, or agent, or officer of the company, to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the court directs, to or into the hands of the official liquidator (c), any sum or balance, books, papers, estate or effects which happen to be in his hands for the time being, and to which the company is primS. facie entitled. 101. The court may, at any time after making an order for winding up the company, make an order on any contributory for the time being settled on the list of contributories, directing payment to be made, in manner in the said order mentioned, of any moneys due from him or from the estate of the person whom he represents to the company, exclusive of any moneys which he or the estate of ■flie person whom he represents may be liable to contribute by virtue of any call made or to be made by the court in pursuance of this part of this Act [cC) ; and it may, in making such order when the company is not limited, allow to such contributory by way of set-off any moneys due to him or the estate which he represents from the company on any independent dealing or contract with the company, but not any moneys due to hun as a member of the company in respect of any dividend or profit.(e). Provided, tliat when all the creditors of any company, whether limited or unlimited, are paid in full, any moneys due on any account whatever to any contributory from the company may be allowed to liim by way of set-off against any subsequent call or calls (/). {t) Sects. 169, 160, 161. {its Sect. 8S. m Sect. 151, (y) Sect, 38, s) Sect. 35. (a) Sect. 133, Sects. 76, 106. Sect. 103. [d) Sect. 102. (e) Sect. 6 of 30 & 31 Vict. o. infra. (/) Sect. 38 (7). 131, Joint Stock Companies. 945 102. The court may, at any time after making an order for winding' up a rV- Ordinary company, and either before or after it has ascertained the sufficiency of the -'''""'" "-'' ^''"'''• assets of the company, make calls on and order payment thereof by all or any Power^fcourt of the contributoricB for the time being settled on the list of contributories, to to make calls, the extent of their liability, for payment of all or any sums it deems necessary to satisfy the debts and liabilities of the company, and the oo.sts, charges and expenses of winding it up, and for the adjustment of the rights of the con- tributories amongst themselves, and it may, in making a call, take into consideration the probability that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the 8ame(()'). 103. The court may order any contributory, purchaser or other person from Power of court whom money is due to the company to pay the same into the Bank of England *° °^^?^ P^y- or any branch thereof to the account of the official liquidator instead of to the ™™' ™'° **™''' official liquidator, and such order may be enforced, in the same manner as if it had directed payment to the official liquidator [h). 104. All moneys, bills, notes and other securities paid and delivered into Regulation of the Bank of England or any branch thereof, in the event of a company being 'i™ount with wound up by the court, shall be subject to such order and regulation for the '^ ' keeping of the account of such moneys and other effects, and for the payment and delivery in, or investment and payment and delivery out of the same as the court may direct. 106. If any person made a contributory as personal representative of a Provision in caso deceased contributory makes default in paying any sum ordered to be paid by of representative him, proceedings may betaken for adrainistering the personal and real estates paS^S^ys"* of such deceased contributory, or either of such estates, and of compelling ordered, -payment thereout of the moneys due (i). 106. Any order made by the court in pursuance of this Act upon any con- Order oonoluaive tributory shaU, subject to the provisions herein contained for appealing evidence, against such order {k), be conclusive evidence that the moneys, if any, thereby appearing to be due or ordered to be paid are due, and all other pertinent matters stated in such order are to be taken to be truly stated as against all persons and in all proceedings whatsoever, with the exception of proceedings taken against the real estate of such deceased contributory, in which case such order shaU only be primS facie evidence for the purpose of charging his real estate, unless his heirs or devisees were on the list of contributories at the time of the order being made (J,) . 107. The court may fix a certain day or certain days on or within which Court may ex- creditors of the Qompany are to prove their debts or claims, or to be excluded "H"^" creditors from the benefit of any distribution made before such debts are proved. ^tlun°eeS^in 108. If in the course of proving the debts and claims of creditors in the timo. court of the vice- warden of the stannaries any debt or claim is disputed by Proceedings in the official liquidator or by any creditor or contributory, or appears to tie *'?e court of tho court to be open to question, the court shall have power, subject to appeal as Sc^^Sries hereinafter provided (m), to adjudicate upon it, and for that purpose the said on proof of court shall have and exercise all needful powers of inquiry touching the debts, same by affidavit or by oral examination of witnesses or of parties, whether voluntarily offering themselves for examination or summoned to attend by compulsory process of the court, or to produce documents before the court : and the court shall also have power, incidentally, to decide on the validity and extent of any lien or charge claimed by any creditor on any property of the company in respect of such debt, and to make declarations of right binding on all persons interested ; and for the more satisfactory determi- nation of any question of fact, or mixed question of law and fact arising on such inquiry, the vice-warden shall have power, if he thinks fit, to direct and settle any action or issue to be tried either on the common law side of his court, or by a common or special jury, before the justices of assize in and for the counties of Cornwall or Devon, or at any sitting of one of the superior courts in London or Middlesex, which action or issue shall accord- ingly be tried in due course of law, and without other or further consent of parties ; and the finding of the jury in such action or issue shall be con- ig) Seot. 133 (9). (k) Sect. 124. \h) Seot. 100. [1] Seot. 99. (») Sects. 76, 95, 106. (m) Sect. 124. 946 25 & 26 Vict. cap. rV. Ordinary Towers of Court. Court to adjust rights of contri- butories. Court to order costs. Dissolution of company. Eegistrar to make minute of dissolution of company. Penalty on not reporting disso- lution of com- pany. Extraordinary Powers of Court, Power of court to summon per- sons before it suspected of having property of company. Special provi- sions as to court of vice-warden of the Stan- Examination of parties by court. Power to arrest conti-ibutory about to elusive of the facts foumd, unless the judge who tried it makes kno-wn to the vice-warden, that he was not satisfied with the finding, or unless it appears to the vice- warden that, in consequence of miscarriage, accident, or the suhsequent discovery of fresh material evidence, such finding ought not to be conclusive. 109. The court shall adjust the rights of the oontributories amongst them- selves, and distribute any surplus that may remain amongst the parties entitled thereto. 110. The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the estate of the com- pany of the costs, charges and expenses incurred in winding up any company in such order of priority as the court thinks just («). 111. When the affairs of the company have been completely wound up, the court shall make an order that the company be dissolved from the date of such order, and the company shall be dissolved accordingly (o). 112. Any order so made shall be reported by the official liquidator to the registrar, who shall make a minute accordingly in his hooks of the dissolution of such company. 113. If the official liquidator makes default in reporting to the registrar, in the case of a company being wound up by the court, the order that the company be dissolved, he shall be liable to a penalty not exceeding five pounds for every day during which he is so in default. 114. Repealed, 30 & 31 Vict. u. 47, s. 2. Extraordinary Towers of Court. 115. The court may, after it has made an order for winding up the com- pany, summon before it any officer of the company or person known or sus- pected to have in his possession any of the estate or effects of the company, or supposed to be indebted to the company, or amy person whom the court may deem capable of giving information concei'ning the trade, dealings, estate or effects of the company {p) ; and the court may require any such ofSoer or person to produce any books, papers, deeds, writings or other docu- ments in his custody or power relating to the company ; and if any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the court at the time appointed, having no lawful impediments (made known to the court at the time of its sitting, and allowed by it), the court may cause such person to be apprehended, and brought before the court for examination ; nevertheless, in oases where any person claims any lien on papers, deeds or writings or documents produced by him, such production shall be without prejudice to such lien, and the court shall have jurisdiction in the winding up to determine all questions relating to such lien. 116. If, after an order for winding up in the court of the vice- warden of the stannaries, it appears that any person claims property in, or any lien, legal or equitable, upon any of the machinery, materials, ores or effects on the mine, or on premises occupied by the company in connexion with the mine, or to which the company was at the time of the order prim S, facie entitled, it shall be lawful for the vice- warden or the registrar to adjudicate upon such claim on interpleader in the manner provided by section eleven of the Act passed in the eighteenth year of the reign of her present Majesty, chapter thirty- two ; and any action or issue directed upon such interpleader may, if the vice- warden think fit, be tried in his court or at the assizes or the sittings in London or Middlesex, before a judge of one of the superior courts, in the manner and on the terms and conditions hereinbefore provided in the case of disputed debts and claims of creditors (g) . 117. The court may examine upon oath, either by word of mouth or upon written interrogatories, any person appearing or brought before them in manner aforesaid (r) concerning the affairs, dealings, estate or effects of the company, and may reduce into writing the answers of every such person, and require him to subscribe the same. 118. The court may at any time before or after it has made an order for winding up a company, upon proof being given that there is probable cause (re) Sect. 144. (o) Sect. 143. (i?) Sects. 117, 127. (?) Sect. 108. (»•) Sect. 115. Joint Stock Companies. 947 for believing that any contributory to such company is about to quit the IV. Extraordi- United Kingdom, or otherwise abscond, or to remove or conceal any of his vary Powers of goods or chattels, for the purpose of evading payment of calls, or for avoiding ''' • examination in respect of the affairs of the company, cause such contributory abscond, or to to be arrested, and his books, papers, moneys, securities for moneys, goods remove or con- and chattels to be seized, and hun and them to be safely kept until such time "^^"^ ^^°^ ^"^ as the court may order. property. 119. Any powers by this Act conferred on the court shall be deemed to be Powers of court in addition to and not in restriction of any other powers subsisting either at cumulative, law or in equity, of instituting proceedings against any contributory, or the estate of any contributory, or against any debtor of the company for the re- covery of any caU or other sums due from such contributory or debtor, or his estate, and such proceedings may be instituted accordingly. Enforcement of < '^ ° ^ S J „„^ Appeal from Enforcement of "* lawfully sworn or made in Great Britain or Ireland, or in any colony, island, land, oi' the plantation or place under the dominion of her Majesty in foreign parts, before colonies, any court, judge or person lawfully authorized to take and receive affidavits before any oom- affirmations or declarations, or before any of hor Majesty's consuls or vice- pcilon.™"^ °^ consuls, in any foreign parts out of her Majesty's dominions, and all courts, judges, justices, commissioners and persons acting judicially shall take judicial notice of the seal or stamp or signature (as the case may be) of any such court, judge, person, consul or vice-consul attached, appended, or sub- scribed to any such affidavit, affirmation or declaration, or to any other document to be used for the purposes of this part of this Act. ^ ^ ^ Voluntary Winding up of Voluntary Winding up of Company. Company. 129. A company under this Act {li) may be wound up voluntarily, Circumstances (1 .) "Whenever the period, if any, fixed for the duration of the company by "^der whicli the articles of association expires, or whenever the event, if any, ^p'SSd'up"^'' ^ occurs, upon the occuiTenoe of which it is provided by the articles voluntarily, of association that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up voluntarily : (2.) Whenever the company has passed a special resolution {x) requiring the company to be wound up voluntarily : (3.) Whenever the company has passed an extraordinary resolution to the effect that it has been proved to their satisfaction that the company cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same : For the purposes of this Act any resolution shall be deemed to be extraordi- naiy which is passed in such manner as would, if it had been confirmed by a subsequent meeting, have constituted a special resolution as hereinbefore de- fined. 130. A voluntary winding up (i/) shall be deemed to commence at the time Commencement of the passing of the resolution authorizing such winding up. wi^S^^ 131. Whenever a company is wound up voluntarily the company shall, ^ ^• from the date of the commencement of such winding up, cease to carry on its ^^^^ grinding up business, except in so far as may be required for the beneficial winding up on status of thereof («), and all transfers of shares, except transfers made to or with the company, sanction of the liquidators, or alteration in the status of the members of the company, taking place after the commencement of such winding up shall be («) See sect. 199 (2). iy) See sect. 84. (i) Sect. 51. W Sect. 95. 3 R 2 950 , 25 & 26 Vict. cap. 89. rV. Voluntary Winding up of Company, Notice of reso- lution to wind up Toluntarily. Consequences of voluntarily winding up. Effect of wind- ing up on share capital of com- pany limited by guarantee. Power of com- pany to delegate authority to appoint liquidators. void (ffl), but its corporate Btate and all its corporate powers shall, notwith- standing it is otherwise provided by its regulations, continue until the affairs of the company are wound up. 132. Notice of any special resolution or extraordinary resolution passed for winding up a company voluntarily shall be given by advertisment as respects companies registered in England in the London Gazette, as respects com- panies registered in Scotland in the Edinburgh Gazette, and as respects companies registered in Ireland in the Dublin Gazette. ' 133. The following consequences shaU ensue upon the voluntary winding up of a company : — (1.) The property of the company shall be applied in satisfaction of its lia- bilities pari passu (4), and subject thereto shall, unless it be other- wise provided by the regulations of the company, be distributed amongst the members according to their rights and interests in the company : (2.) Liquidators shall be appointed for the purpose of winding up the affairs of the company and distributing the property (c): (3.) The company in general meeting shall appoint such persons or person as it thinks fit to be liquidators or a liquidator, and may fix the re- muneration to be paid to them or biin : (4.) If one person only is appointed, all the provisions herein contained in reference to several liquidators shall apply to him : (5.) Upon the appointment of liquidators all the power of the directors shall cease, except in so far as the company in general meeting or the liquidators may sanction the continuance of such powers : (6.) When several liquidators are appointed, every power hereby given may be exercised by such one or more of them as may be determined at the time of their appointment, or in default of such determination by any number not less than two : (7.) The liquidators may, without the sanction of the court, exercise all powers by this Act given to the official liquidator (d!) : (8.) The Jiquidators may exercise the powers hereinbefore given to the court of settling the list of oontributories of the company (e), and any list so settled shall be primS, facie evidence of the liability of the persons named therein to be oontributories : (9.) The liquidators may at any time after the passing of the resolution for winding up the company, and before they have ascertained the sufficiency of the assets of the company, call on all or any of the Contributories for the time being settled on the list of contributories to the extent of their liability to pay all or any sums they deem necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of winding it up, and for the adjustment of the rights of the contributories amongst themselves, and the liquidators may in making a call take into consideration the proba- bility that some of the oontributories upon whom the same is made may partly or wholly fail to pay their respective portions of the same (/) : (10.) The liquidators shall pay the debts of the company, and adjust the rights of the oontributories amongst themselves \g). 134. Where a company limited by guarantee, and having.a capital divided into shares, is being wound up voluntarily, any share capital -ftat may not have been called up shall be deemed to be assets of the company, and to be a specialty debt (A) due from each member to the company to the extent of any sums that may be unpaid on any shares held by him, and payable at such time as may be appointed by the liquidators. 135. A company about to be wound up voluntarily, or in the course of being wound up voluntarily, may, by an extraordinary resolution (t), delegate to its creditors, or to any committee of its creditors, the power of appointing liquidators, or any of them, and supplying any vacancies in the appointment (a) Sect. 163. \b) Sect. 169. (c) Sect. 92. (d) Sects. 96, 96, 97. (e) Sect. 98. (/) Sect. 102. (s) Sects. 38, 101, 109, 168. (A) Sects. 76, 90. (i) Sect. 129. Joint Stock Companies. 951 of liquidators, or may by a like resolution enter into any arrangement -with IV. Voluntart/ respect to the powers to be exercised by the liquidators, and the manner Winding-up of in which they are to be exercised ; and any act done by the creditors in pur- Oampmy. suance of sach delegated power shall have the same effect as if it had been done by the company (y). 136. Any arrangement entered into between a company about to be wound Arrangement, up voluntarily, or in the course of being wound up voluntarily, and its 'when Emding creditors (A) shall be binding on the ootopany it sanctioned by an extraor- ™ creditors, dinary resolution, and on the creditors if acceded to by three-fourths in number and value of the creditors, subject to such right of appeal as is hereinafter mentioned. 137. Any creditor or contributory of a company that has in manner afore- Powers of oredi- said entered into any arrangement with its creditors may, within three weeks tor "r contribu- from the date of the completion of such arrangement, appeal to the court ^'^ *° appeal, against such arrangement, and the court may Uierenpon, as it thinks just, amend, vary or confirm the same. 138. Where a company is being wound up voluntarily the liquidators or Powor of any contributory of the company may apply to the court in England, Ire- liquidators or land or Scotland, or to the lord ordinary on the bills in Scotland in time of contributories in vacation, to determine any question arising in the matter of such winding up, wTp^aSy or to exercise, as respects the enforcing of calls, or in respect of any other to court, matter, all or any of the powers which the court might exercise if the com- pany were being wound up by the court ; and the court or lord ordinary, in the case aforesaid, if satisfied that the determination of such question, or the required exercise of power, will be just and beneficial, may accede wholly or partially to such application on such terms and subject to such conditions as the court thinks nt, or it may make such other order, interlocutor or decree on such application as the court thinks just. 129. Where a company is being wound up voluntarily the liquidators Power of may from time to time, during the continuance of such winding up, summon liquidators to general meetings of the company for the purpose of obtaining the sanction ^eeinK^™^ of the company by special resolution (i) or extraordinary resolution (m), or for any other purposes they think fit ; and in the event of the winding up continuing for more than one year the liquidators shall summon a general meeting of the company at the end of the first year, and of each succeeding year from the commencement of the winding up, or as soon thereafter as may be convenient, and shall lay before such meeting an account showing their acts and dealings, and the manner in which the winding up has been conducted during the preceding year. 140. If any vacancy occurs in the ofiice of liquidators appointed by the Power to fill up company, by death, resignation or otherwise, the company in general meet- J*"'-5''L™ ing may, subject to any arrangement they may have entered into with "'^ "' their creditors («), fill up such vacancy, and a general meeting for the purpose of filling up such vacancy may be convened by the continuing liquidators, if any, or by any contributory of the company, and shall be deemed to have been duly held if held in manner prescribed by the regulations of the company, or in such other manner as may, on application by the continuing liquidators, if any, or by any contributory of the company, be determined by the court. 141. If from any cause whatever there is no liquidator acting in the case Power of court of a voluntary winding up, the court may, on the application of a contribu- to appoint tory, appoint a liquidator or liquidators ; the court may also, on due cause liquidators, shown (o}, remove any liquidator, and appoint another liquidator to act in the matter of a voluntary winding up [ji] . 142. As soon as the affairs of the company are fully wound up, the Uqui- Liquidators on dators shall make up an account showing the manner in which such winding condusion of up has been conducted, and the property of the company disposed of ; and ^^^f, an'° thereupon they shall call a general meeting of the company for the purpose account. of having the account laid before them, and hearing any explanation that may be given by the liquidators : the meeting shall be called by advertise- ment, specifying the time, place, and object of such meeting ; and such (i) Sect. 133. ()m) Sect. 129. (A) Sect. 159, and sect. 2 of Joint (h) Sect. 135. Stock Companies Arrangement Act, (o) Sect. 93. 1870 {33 & 34 Vict. c. 104). i,p) Sect. 162. (0 Sect. 51. 952 25 & 26 Vicx. CAP. 89. TV. Yoluntary Win^ng-up of Company, Liquidators to report meeting to re^strar. Costs of volun- tary liquidation. Saving of rights of creditors. Power of court to adopt pro- ceedings of voluntaiy winding up. Winding up subject to the Supervision of the Court. Power of court on application to direct wind- ing up subject to supervision. Petition for winding up, subject to supervision. Court may have regard to wishes of creditors. Power to court to appoint addi- tional liq_uida- tors in winding up subject to supervision. Effect of order of court for wind- ing up subject to supervision. advertisement shall te published one month at least previously to the meet- ing, as respects companies registered in England in the London Gazette, and as respects companies registered in Scotland in the Edinburgh Gazette, and as respects companies registered in Ireland in the Dublin Gazette. 143. The liquidators shall make a return to the registrar of such meeting having been held, and of the date at -which the same was held, and on the expiration of three months from the date of the registration of such return the company shall be deemed to be dissolved ; if the liquidators make default in making such return to the registrar, they shall incur a penalty not ex- ceeding five pounds for every day during which such default continues. 144. All costs, charges and expenses properly incurred in the voluntary- winding up of a company, including the remuneration of the liquidators, shall be payable out of the assets of the company in priority to aU other claims. 145. The voluntary winding up of a company shall not be a bar to the right of any creditor of such company to have the same wound up by the court, if the court is of opinion that the rights of such creditor will be pre- judiced by a Tolimtary winding up. 146. Where a company is in course of being wound up voluntarily, and proceedings are taken for the purpose of having the same wound up by the court (?), the court may, if it thinks fit, notwithstanding that it makes an order directing the company to be wound up by the court, provide in such order or in any other order for the adoption of aU or any of the proceedings taken in the course of the voluntary winding up. Wmiing up subject to the Supervision of the Court. 147. When a resolution has been passed by a company to wind up volun- tarily ()■), the court may make an order directing that the voluntary winding up should continue, but subject to such supervision of the court, and with such liberty for creditors, oontributories, or others, to apply to the court, and generally upon such terms and subject to such conditions as the court thinks just. 148. A petition, praying wholly or in part that a voluntary winding up should continue, but subject to the supervision of the court, and which winding up is hereinafter referred to as a winding up subject to the super- ■vision of the court, shall, for the purpose of giving jurisdiction to the court over suits and actions, be deemed to be a petition for winding up the com- pany by the Court (s). 149. The court may, in determining whether a company is to be wound up altogether by the court or subject to the supervision of the court, in the ap- pointment of liquidator or liquidators, and in all other matters relating to the winding up subject to supervision, have regard to the -wishes of thecredi- toi s or oontributories as proved to it by any sufficient evidence, and may direct meetings of the creditors or oontributories to be summoned, held and regulated in such manner as the court directs for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meet- ing, and to report the result of such meeting to the court : in the case of creditors, regard shall be had to the value of the debts due to each creditor, and in the ease of oontributories to the number of votes conferred ou each contributory by the regulations of the company (t). 150. Where any order is made by the court for a winding up subject to the supervision of the court [tt), the court may, in such order or in any subsequent order, appoint any additional liquidator or liquidators ; and any liquidators so appointed by the court shall have the same powers, be subject to the same obligations, and in all respects stand in the same position as if they had been appointed by the company («) : the Court may from time to time remove any liquidators so appointed by the court, and fill up any vacancy occasioned by such removal, or by death or resignation (y). 151. Where an order is made for a winding up subject to the supervision of the court (z), the liquidators appointed to conduct such winding up may, (?) Sects. 79, 145. (>■) Sect. 129. («) Sects. 8.5, 87. (t) Sects. 91, 147. [u) Sect. 147. (x) Sect. 133. {y) Sects. 147, 152. (2) Sect. 147. Joint Stock Companies. 953 subject to any restrictions imposed by the court (a), exercise all their powers, IV. Windinf! up •without the sanction or intervention of the court, in the same manner as if euhiect to the company -were being -wound up altogether voluntarily (i) ; but save as o/f^^ouH. aforesaid, any order made by the court for a winding up, subject to the super- vision of the court shall for all purposes, including the staying of actions, suits and other proceedings, be deemed to be an order of the court for wind- iag up the company by the court, and shall confer fuU authority on the court to make oaUs {«), or to enforce calls made by the liquidators, and to exercise all other powers which it might have exercised if an order had been made for winding up the company altogether by the court, and in the con- struction of the provisions whereby the court is empowered to direct any act or thing to be done to or in favour of the official liquidators, the expression official liquidators shall be deemed to mean the liquidators conducting the winding up, subject to the supervision of the ooi;irt. 152. Where an order has been made for the winding up of a company Appointment in subject to the supervision of the court, and such order is afterwards super- "s^i? cases of seded by an order directing the company to be wound up compulsorily {d) , aatoratoofflce^of the court may in such last-mentioned order, or in any subsequent order, official liqmda- appoint the voluntary liquidators or any of them, either provisionally (e) or tors- permanently, and either with or without the addition of any other persons, to be official liquidators. Supplemental Supplemental Provisions. Promswna. 153. Where any company is being wound up by the court or subject to Dispositions the supervision of the court, all dispositions of the property, effects and "^^^ '^^ "'J°-Z ., . ^ ,. n ,, ' T^ i J! J! 1. li !_• mencement of thmgs m action oi the company, and every transfer oi shares, or alteration tj^e winding up in the status of the members of the company made between the commence- avoided. ment of the winding up (/) and the order for winding up, shall, unless the court otherwise orders, be void (g). 154. Where any company is being wound up, all books, accounts, and The books of the documents of the company and of the liquidators shall, as between the con- company to be tributories of the company, be prima facie evidence of the truth of aU ^" ™°''' matters purporting to be therein recorded. 166. Where any company has been wound up under this Act, and is about As to disposal of to be dissolved (A), the books, accounts, and documents of the company and and documento^ of the liquidators may be disposed of in the following way ; that is to say, of the company. where the company has been wound up by or subject to the supervision of the court, in such way as the court directs, and where the company has been wound up voluntarily, in such way as the company by an extraordi- nary resolution (i) directs ; but after the lapse of five years from the date of such dissolution, no responsibility shall rest on the company, or the liqui- dators, or any one to whom the custody of such books, accounts, and documents has been committed, by reason that the same, or any of them, cannot be made forthcoming to any party or parties claiming to be interested therein. 166. Where an order has been made for winding up a company by the Inspection of court, or subject to the supervision of the court, the court may make such liooks. order for the inspection by the creditors and contributories of the company of its books and papers as the court thinks just, and any books and papers in the possession of the company may be inspected by creditors or contribu- tories, in conformity with the order of the court, but not further or other- wise (i). 167. Any person to whom anything in action belonging to the company Power of is assigned, in pursuance of this Act, may bring or defend any action or assignee to sue. suit relating to such thing in action in his own name [t). 168. In the event of any company being wound up under this Act, all Debts of all debts payable on a contingency, and all claims against the company, present ^f ™^e|™*° or future, certain or contingent, ascertained or sounding only in damages, (a^ Sect. 96. {g) Sects. 131, 163, 164. \b) Sect. 133. W Sect. 143. (e) Sect. 102. (t) Sect. 129. [il Sect. 79. (A) Sched. I. Table A. (79). (e) Sects. 85, 92. (?) Judicature Act, 1873, s. 25 (6). (/) Sects. 84, 130. 954 25 & 26 Vict. cap. rV. Supplemental JProvisions. General scheme of liguidatioii may be sanc- tioned. Power to com- promise. Power for liqui- dators to accept shares, &c., as a consideration for sale of property of company. Mode of deter- mining price. shall be admissible to proof against the company, a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value. 169. The liquidators may, with the sanction of the court, where the com- pany is being wound up by the court, or subject to the supervision of the court, and with the sanction of an extraordinary resolution of the company where the company is being wound up altogether voluntarily, pay any classes of creditors in full, or make such compromise or other arrangement as the liquidators may deem expedient with creditors, or persons claiming to be creditors, or persons having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable (m). 160. The liquidators may, with the sanction of the court, where the com- pany is being wound up by the court, or subject to the supervision of the court, and with the sanction of an extraordinary resolution of the company where the company is being wound up altogether voluntarily, compromise all calls and liabilities to calls, debts, and liabilities capable of resulting in debts, and all claims, whether present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and any contributory or alleged contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets of the company or the winding up of tho company, upon the receipt of such sums, payable at such times, and generally upon such terms as may be agreed upon, with power for the liquidators to take any security for the discharge of such debts or liabilities, and to give complete discharges in respect of all or any such calls, debts, or KabHities. 161. Where any company is proposed to be or is in the course of being wound up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liqui- dators of the first-mentioned company may, with the sanction of a special resolution of the company by whom they were appointed, conferring either a general authority on the liquidators or an authority in respect of any parti- cular arrangement„receive in compensation or part compensation for such transfer or sale, shares, policies or other like interests in such other company for the purpose of distribution amongst the members of the company being wound up, or may enter into any other arrangement whereby the members of the company being wound-up, may, in lieu of receiving cash, shares, policies or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing company : and any sale made or arrangement entered into by the liquidators in pursuance of this section shall be binding on the members of the company being wound up ; subject to this proviso, that if any member of the company being wound up who has not voted in favour of the special resolution passed by tiie company of which he is a member at either of the meetings held for passing the same expresses his dissent from any such special resolution in writing addressed to the liquidators or one of them, and left at the registered office of the company not later than seven days after the date of the meeting at which such special resolution was passed, such dissentient member may require the liquidators to do one of the following things as the liquidators may prefer ; that is to say, either to abstain from carrying such resolution into effect, or to purchase the interest held by such dissentient member at a price to be determined in manner hereinafter mentioned, such purchase-money to be paid before the company is dissolved, and to be raised bj the liquidators in such manner as may be determined by special resolution : no special resolution shall be deemed invalid for the purposes of this section by reason that it is passed antecedently to or concurrently with any resolution for winding up the com- pany, or for appointing liquidators ; but if an order be made within a year for winding up the company by or subject to the supervision of the court, such resolution shall not be of any validity unless it is sanctioned by the court. 162. The price to be paid for the purchase of the interest of any dissen- tient member may be determined by agreement, but if the parties dispute about the same, such dispute shall be settled by arbitration, and for the pur- Cm) Sect. 136 and 33 & 34 Viot. o. 104, s. 2. Joint Stock Companies. 955 poses of such arbitration the provisions of " The Companies Clauses Consoli- IV. Supplemental dation Act, 1845," with respect to the settlement of disputes by arbitration {«) Frommom. shall be incorporated with this Act ; and in the construction of such provisions this Act shall be deemed to be the special Act, and "the company" shall mean the company that is being wound up, and any appointment by the said incorporated provisions directed to be made under the hand of the secretary, or any two oi the directors, may be made under the hand of the liquidator, if only one, or any two or more of the liquidators if more than one. 168. Where any company is being wound up by the court, or subject to Certain attach- the supervision of the court, any attachment, sequestration, distress, or exe- J^^S'^' ^^l"?^ oution put in force against the estate or effects of the company after the executions to be commencement of the winding up shall be void to all intents. void. 164. Any such conveyance, mortgage, delivery of goods, payment, exe- Fraudulent oution, or other act relating to property as would, if made or done by or preference, against any individual trader, be deemed, in the event of his bankruptcy, to have been made or done by way of undue or fraudulent preference of the creditors of such trader (o), shall, if made or done by or against any company, be deemed, in the event of such company being wound up under this Act, to have been made or done by way of undue or fraudulent preference of the creditors of such company, and shall be invalid accordingly ; and for the purposes of this section the presentation of a petition for winding up a com- pany shall, in the case of a company being wound up by the coiu:t, or sub- ject to the supervision of the court, and a resolution for winding up the company shall, in the case of a voluntary winding up, be deemed to cor- respond with the act of bankruptcy in the case of an individual trader ; and any conveyance or assignment made by any company formed under this Act of all its estate and effects to trustees for the benefit of all its creditors shall be void to all intents. 166. Where, in the course of the winding-up of any company under this Power of court Act, it appears that any past or present director, manager, ofScial_or other to assess liquidator, or any officer of such company, has misapplied or retained in his aeSiJSnt^^™^ own hands or become liable or accountable for any moneys of the company, directors and or been guilty of any misfeasance or breach of trust in relation to the com- officers, pany, the court may, on the application of any liquidator, or of any creditor or contributory of the company, notwithstandiing that the offence is one for which the offender is criminally responsible, examine into the conduct of such director, manager, or other officer, and compel him to repay any moneys so misapplied or retained, or for which he has become liable or accountable, together with interest after such rate as the court thinks just, or to con- tribute such sums of money to the assets of the company by way of com- pensation in respect of such misapplication, retainer, misfeasance, or breach of trust, as the court thinks just. 166. If any director, officer, or contributory of any company wound up Penalty on under this Act destroys, mutilates, alters, or falsifies any books, papers, ^^^°°'*^°° "' writings, or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account, or other document belong- ing to the company with intent to defraud or deceive any person, every person so offending shall be deemed to be guilty of a misdemeanor, and upon being convicted shall be liable to imprisonment for any term not exceeding two years, with or without hard labour {p). 167. Where any order is made for winding up a company by the court or Prosecution of subject to the supervision of the court, if it appear in the course of such 1^^°;^ jjjg winding up that any past or present director, manager, officer, or member of ,^g ^f winding such company has been guilty of any offence in relation to the company for up by coiut. which he is criminally responsible, the court may, on the application of any person interested in such winding up, or of its own motion, direct the official liquidators, or the liquidators (as the case may be), to institute and conduct a prosecution or prosecutions for such offence, and may order the costs and expenses to be paid out of the assets of the company. 168. Where a company is being wound up altogether voluntarily, if it Prosecution of appear to the liquidators conducting such winding up that any past or "e™4uent in) 8 & 9 Vict. 0. 16, sects. 128— 1883, infra. 134. [p) See 24 & 25 Vict. o. 96, s. 83, (o) Seesect. 48 of Bankruptcy Act, mpra. 956 25 & 26 Vict. cap. jy. Supplemental present director, manager, ofBoer, or member of such company has been J^ ovisio na, guilty of any offence in relation to the company for which he is criminally - aireotors, &c., in responsible, it shall be lawful for the liquidators, with the previous sanction case of voluntary of the court, to prosecute such offender, and all expenses properly incurred winding up. \,j them in such prosecution shall be payable out of the assets of the company in priority to all other liabilities. Penalty of 169. If any person, upon any examination upon oath or afSrmation autho- perjury. rized under this Act, or in any affidavit, deposition, or solemn affirmation in or about the winding up of any company under this Act, or otherwise in or about any matter ansing under this Act, wilfully and corruptly gives false evidence, he shall, upon conviction, be liable to the penalties of wilful perjury. Power of Courts to make Mules. Power of court of session in Scotland to make rules. Po'ffer to make rules in stan- naries court. Power of lord cliaBcellor of Ireland to make rules. Tower of Courts to make Bules. 170. [Kepealed by ii & 45 Vict. c. 59.] 171. In Scotland the court of session may make such rules concerning the mode of winding up as may be necessary by Act of Sederunt ; but, until such rules are made, the general practice of the court of session in suits pending in such court shall, so far as the same is applicable, and not incon- sistent with this Act, apply to all proceedings for winding up a company, and official liquidators shall in all respects be considered as possessing the same powers as any trustee on a bankrupt estate (•) . Constitution of reffiatration omce. PART V. REGIBTBiTION OlTIOE. 174. The registration of companies under this Act shall be conducted as follows : (that is to say,) (1.) The board of trade may from time to time appoint such registrars, assistant registrars, clerks, and servants as fiiey may think neces- (?) Sect. 20 of 30 & 31 Vict. c. 131. (»•) Ibid. Joint Stock Companies. 957 sary for the registration of oompauiea under this Act, and remove V. EegistraHon them at pleasure : OJlce. (2.) The board of trade may make such regiilations as they think fit with respect to the duties to be performed by any such registrars, as- sistant registrars, clerks, and servants as aforesaid : (3.) The board of trade may from time to time determine the places at which offices for the registration of companies are to be established, so that there be at all times maintained in each of the three parts of the United Kingdom at least one such office, and that no company shall be registered except at an office within that part of the United Kingdom in which by the memorandum of association the registered office of the company is declared to be established ; and the board may require that the registrar's office of the court of the vice- warden of the stannaries shall be one of the offices for the registra- tion of companies formed for working mines within the jurisdiction of the court : (4.) The board of trade may from time to time direct a seal or seals to be prepared for the authentication of any documents required for or connected with the registration of companies : (5.) Every person may inspect the documents kept by the registrar of joint stock companies ; and there shall be paid for such inspection such fees as may be appointed by the board of trade, not exceeding one shilling for each inspection ; and any person may require a certificate of the incorporation of any company, or a copy or extract of any other document or any part of any other document, to be certified by the registrar ; and there shall be paid for such certificate of incorporation, certified copy or extract, such fees as the board of trade may appoint, not exceeding five shillings for the certificate of incorporation, and not exceeding sixpence for each folio of such copy or extract, or in Scotland for each sheet of two hundred words : (6.) The existing registrar, assistant registrars, clerks, and other officers and servants in the offioe for the registration of joint stock companies shall, during the pleasure of the board of trade, hold the offices and receive the salaries hitherto held and received by them, but they shall in the execution of their duties conform to any regulations that may be issued by the board of trade : (7.) There shall be paid to any registrar, assistant-registrar, clerk or ser- vant that may hereafter be employed in the registration of joint stock companies such salary as the board of trade may, with the sanction of the commissioners of the treasury, direct : (8.) Whenever any act is herein directed to be doae to or by the registrar of joint stock companies, such act shall, until the board of trade otherwise directs, be done in England to or by the existing registrar of joint stock companies, or in his absence to or by such person as the board of trade may for the time being authorize ; in Scotland to or by the existing registrar of joint stock companies in Scotland ; and in Ireland to or by the existing assistant-registrar of joint stock companies for Ireland, or by such person as the board of trade may for the time being authorize in Scotland or Ireland in the ab- sence of the registrar ; but in the eveat of the board of trade alter- ing the constitution of the existing registry office, such act shall be done to or by such officer or officers and at such place or places with reference to the local situation of the registered offices of the com- panies to be registered as the board of trade may appoint. PART VI. AjPLioATioisr OF Act to Companies eboistebed xraroEB the Joint Stock Companies Acts. 175. The expression "Joint Stock Companies Acts," as used in this Act Definition of shall mean "The Joint Stock Companies Act, 1856," "The Joint Stock Com- J™' ^^'^ panies Acts, 1856, 1857," " The Joint Stock Banking Companies Act, 1857. and " The Act to enable Joint Stock Banking Companies to be formed on the Companies Acts. 958 25 & 26 Vict. cap. 89. VI. Application oj Act to Gom-' panics registered under the Joint Stock Companies Act. Application of Act to companies formed under Joint Stock Companies Acts. Application of Act to com- panies registered under Jomt Stock Companies Acts. Mode of trans- f eiTing sliares. Principle of Limited Liability, ' ' or any one or more of such Acts, as the case may require ; but shall not include the Act passed in the eighth year of the reign of her present Majesty, chapter one hundred and ten, and intituled "An Act for the Registration, Incorporation and Regulation of Joint Stock Com- panies." 176. Subject as hereinafter mentioned, this Act, with the exception of table (A) in the first schedule, shall apply to companies formed and registered under the said Joint Stock Companies Acts, or any of them, in the same manner in the case of a limited company as if such company had been formed and registered under this Act as a company limited by shares, and in the case of a company other than a limited company as if such company had been formed and registered as an unlimited company under this Act with tEis quali- fication, that whenever reference is made expressly or impliedly to the date of registration, such date shall be deemed to refer to the date at which such companies were respectively registered under the said Joint Stock Companies Acts or any of them, and the power of altering regulations by special resolu- tion given by this Act shall, in the case of any company formed and regis- tered under the said Joint Stock Companies Acts, or any of them, extend to altering any provisions contained in the table marked (B) annexed to " The Joint Stock Companies Act, 1856," and shall also in the case of an unlimited company formed and registered as last aforesaid extend to altering any regulations relating to the amount of capital or its distribution into shares, notwithstanding such regulations are contained in the memorandum of association. 177. This Act shall apply to companies registered but not formed under the said Joint Stock Companies Acts or any of them in the same manner as it is hereinafter declared to apply to companies registered but not formed under this Act, with this qualification, that wherever reference is made expressly or impliedly to the date of registration, such date shall be deemed to refer to the date at which such companies were respectively registered under the said Joint Stock Companies Acts or any of them. 178. Any company registered under the said Joint Stock Companies Acts or any of them may cause its shares to be transferred in manner hitherto in use, or in such other manner as the company may direct. Begulations as to re^stration of existing companies. PART VII. COMPAHIES AUTHOEIZED TO EEQISTEE tTUDEE THIS AoT. 179. The following regulations shall be observed with respect to the registration of companies under this part of this Act ; (that is to say,) (1.) No company having the liability of its members limited by Act of Parliament or letters patent, and not being a joint stock company as hereinafter defined, shall register under this Act in pursuance of this part thereof : (2.) No company having the liability of its members limited by Act of Parliament or by letters patent, shall register under this Act in pur- suance of this part thereof as an unlimited company, or as a company limited by guarantee : (3.) No company that is not a joint stock company as hereinafter de- fined (m) shall in pursuance of this part of this Act register under this Act as a company limited by shares : (4.) No compfiny shall register under this Act in pursuance of this part thereof unless an assent to its so registering is given by a majority of such of its members as may be present, personally or by proxy, in cases where proxies are allowed by the regulations of the com- pany, at some general meeting summoned for the purpose : (5.) Where a company not having the liability of its members limited by Act of Parliament or letters patent is aoout to register as a limited company, the majority required to assent as aforesaid shall consist (») Sect. 181. Joint Stock Companies. 959 of not less than three-fourths of the members present, personally or vn. Companies by proxy, at such last-mentioned general meeting : authorized to (6.) Where a company is about to register as a company limited by '^'"mu'I^'' guarantee, the assent to its being so registered shall be accompanied by a resolution declaring that each member undertakes to con- tribute to the assets of the company, in the event of the same being wound up, daring the time that he is a member, or within one year afterwards, for payment of the debts and liabOities of the company contracted before the time at which he ceased to be a member, and of the costs, charges and expenses of winding up the company, and for the adjustment of the rights of the contributories amongst themselTes, such amount as may be required, not exceed- ing a specified amount [x) . In computing any majority under this section when a poll is demanded regard shall be had to the number of votes to which each member is entitled according to the regulations of the company of which he is a member. 180. With the above exceptions, and subject to the foregoing regulations, Companies every company existing at the time of the commencement of this Act {y), capable of being including any company registered under the said Joint Stock Companies ■'"S'stered. Acts, consisting of seven or more members, and any company hereafter formed in pursuance of any Act of Parliament other than this Act, or of letters patent, or being a company engaged in working mines within and subject to the jurisdiction of the stannaries, or being otherwise duly constituted by law, and consisting of seven or more members, may at any time hereafter register itself under this Act as an unlimited company, or a company limited by shares, or a company limited by guarantee ; and no such registration shall be invalid by reason that it has taken place with a, view to the company being wound up. 181. For the purposes of this part of this Act, so far as the same relates to Definition of the description of companies empowered to register as companies limited by joint stock shares, a joint stock company shall be deemed to be a company having a company, permanent paid-up or nominal capital of fixed amount, divided into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in one way and partly in the other, and formed on the principle of having for its members the holders of shares in such capital, or the holders of such stock, and no other persons ; and such company when registered with limited liability under this Act shall be deemed to be a company limited by shares. 182. [Repealed by 42 & 43 Vict. c. 76, s. 6.] 183. Previously to the registration in pursuance of this part of this Act of Eequisitions for any joint stock company there shall be delivered to the registrar the following registration by documents ; (that is to say, ) compames. (1.) A list showing the names, addresses and occupations of all persons who on a day named in such list, and not being more than six clear days before the day of registration, were members of such company, with the addition of the shares held by such persons respectively, dis- tinguishing, in cases where such shares are numbered, each share by its number : (2.) A copy of any Act of Parliament, royal charter, letters patent, deed of settlement, contract of copartnery, cost book regulations or other instrument constituting or regulating the company : (3.) If any such joint stock company is intended to be registered as a limited company, the above list and copy shall be accompanied by a statement specifying the following particulars ; (that is to say,) The nominal capital of the company and the nxuuber of shares into which it is divided : The number of shares taken and the amount paid on each share : The name of the company, with the addition of the' word " limited " as the last word thereof : With the addition, in the case of the company intended to be registered as a company limited by guarantee, of the resolution declaring the amount of the guarantee. (*) Sect. 9 (4). (y) Sect. 176. 960 25 & 26 Vict. cap. 89. YH. Companies authorized to register under this Act. Requisitions for registration by existing com- pany not being a .]oint stock company. Power for exist- ing company to register amount of stock instead of shares. Authentication of statements of existing com- panies. Registrar may require evidence' as to nature of company. On registration of banking com- pany -with limited liability notice to be given to cus- tomers. Exemption of certain com- panies from pay- ment of fees. Power to com- pany to change name. Certificate of registration of existing com- panies. Certificate to be evidence of com- pliance with Act. 184. Previously to the registration in pursuance of this part of this Act of any company not being a joint stock company {a) there shall he delivered to the registrar a list showing the names, addresses and occupations of the directors or other managers (if any) of the company, also a copy of any Act of Parliament, letters patent, deed of settlement, contract of copartnery, cost hook regulations, or other instrument constituting or regiilating the company, with the addition, in the case of a company intended to be registered as a company limited by guarantee, of the resolution declaring the amount of guarantee (J). 18d. Where a joint stock company authorized to register under this Act has had the whole or any portion of its capital converted into stock, such company shall, as to the capital so converted, instead of delivering to the registrar a statement of shares, deliver to the registrar a statement of the amount of stock belonging to the oomjSany, and the names of the persons who were holders of such stock, on some day to be named in the statement, not more than six clear days before the day of registration. 186. The lists of members and directors and any other particulars relating to the company hereby required to be delivered to the registrar shall be verified by a declaration of the directors of the company delivering the same, or any two of them, or of any two other principal officers of the company, made in pursuance of the Act passed in the sixth year of the reign of his late majesty King William the Fourth, chapter sixty-two. 187. The registrar may require such evidence as he thinks necessary for the purpose of satisfying himself whether an existing company is or not a joint stock company as hereinbefore defined (c). 188. Every banking company {d) existing at the date of the passing of this Act which registers itself as a limited company shall, at least thirty days previous to obtaining a certificate of registration with limited liability, give notice that it is intended so to register the same to every person and partnership firm who have a banking account with the company, and such notice shall be given either by delivering the same to such person or firm, or leaving the same or putting the same into the post addressed to him or them at such address as shall have been last communicated or otherwise become known as his or their address to or by the company ; and in case the company omits to give any such notice as is hereinbefore required to he given, then as between the company and the person or persons only who are for the time being interested in the account in respect of which such notice ought to have been given, and so far as respects such account and all variations thereof down to the time at which such notice shall be given, but not further or otherwise, the certificate of registration with limited Uahility shall have no operation {e) . 189. No fees shall be charged in respect of the registration in pursuance of this part of this Act of any company in cases where such company is not registered as a limited company, or where previously to its being registered as a limited company the liability of the shareholders was limited by some other Act of Parliament or by letters patent. 190. Any company authorized by this part of this Act to register with limited liability ^all, for the purpose of obtaining registration with limited liability, change its name, by adding thereto the word " limited." 191. Upon compliance with the requisitions in this part of this Act con- tained with respect to registration, and on payment of such fees, if any, as are payable under the tables marked (B) and (C) in the first schedule hereto, the registrar shall certify under his hand that the company so applying for registration is incorporated as a company under this Act, and, in the case of a limited company, that it is limited, and thereupon such company shall be incorporated, and shall have perpetual succession and a common seal, with power to hold lands ; and any banking company in Scotland so incorporated shall be deemed and taken to be a bank incorporated, constituted, or esta- blished-by or under Act of Parliament. 192. A certificate of incorporation given at any time to any company registered in pursuance of this part of this Act, shall be conclusive evidence (a) Sect. 181. (b) 42 & 43 Vict. o. 76, s. 9. (c) Sect. 181. {d) 42 & 43 Vict. 0. 76, s. 6. («) Seet. 18. Joint Stock Companies. 961 that all the requisitions herein contained in respect of registration under this VH. Compamis Act hare been complied with, and that the company is authorized to be ""'^^''^J"^ registered under this Act as a limited or unlimited company, as the case may ^ ^^3 2ct. be, and the date of incorporation mentioned in such certificate shall be deemed to be the date at which the company is incorporated under this Act. 193. All such property, real and personal, including all interests and rights Transfer of pro- in, to, and out of property, real and personal, and including obligations and psi'ty to 00m- things in action, as may belong to or be vested in the company at the date of P*"?- its registration under this Act, shall on registration pass to and yest in the company as incorporated under this Act for all the estate and interest of the company therein. 194. The registration in pursuance of this part of this Act of any company Efigistration shall not affect or prejudice the liability of such company to have enforced under this Act against it, or its right to enforce any debt or obligation incurred, or any con- nHiBatiOTM* tract entered into, by, to, with, or on behalf of such company previously to mciured such registration. previously to 195. AU such actions, suits, and other legal proceedings as may at the time registration. of the registration of any company registered in pursuance of this part of this Continuation of Act have been commenced by or against such company, or the public ofiSoer existingactions or any member thereof, may be continued in the same manner as if such registration had not taken place ; nevertheless, execution shall not issue against the effects of any individual member of such company upon any judgment, decree, or order obtained in any action, suit, or proceeding so commenced as aforesaid ; but in the event of the property and effects of the company being insufficient to satisfy such judgment, decree, or order, an order may be obtained for winding up the company. 196. When a company is registered under this Act in pursuance of this Effect of regis- part thereof, all provisions contained in any Act of Parliament, deed of tration under settlement, contract of copartnery, cost book regulations, letters patent, or ■*-'^*- other instrument constituting or regulating the company, including, in the case of a company registered as a company limited by guarantee, the resolution declaring the amount of the guarantee, shall be deemed to be conditions and regulations of the company, in the same manner and with the same incidents as if they were contained in a registered memorandum of association and articles of association ; and all the provisions of this Act shall apply to such company and the members, contributories, and creditors thereof, in the same manner in all respects as if it had been formed under this Act, subject to the provisions following ; (that is to say,) (1.) That table (A) in the first schedule to this Act shall not, unless adopted by special resolution (/), apply to any company registered under this Act in pursuance of this part thereof : (2.) That the provisions of this Act relating to the numbering of shares (^) shall not apply to any joint stock company. whose shares are not numbered : (3.) That no company shall have power to alter any provision contained in any Act of Parliament relating to the company ( A) : _ (4.) That no company shall have power, without the sanction of the board of trade, to alter any provision contained in any letters patent relating to the company : (5.) That in the event of the company being wound up, every person shall be a contributory, in respect of the debts and liabilities of the com- pany contracted prior to registration, who is liable, at law or in equity, to pay or contribute to the payment of any debt or liability of the companv contracted prior to registration, or to pay or contri- bute to the payment of any sum for the adjustment of the rights of the members amongst themselves, in respect of any such debt or UabUity ; or to pay or contribute to the payment of the costs, charges, and expenses of winding up the company so far as relates to such debts or liabilities as aforesaid (i) ; and every such contri- butory shall be liable to contribute to the assets of the company, in the course of the winding up, aU sums due from him in respect of any such liability as aforesaid ; and in the event of the death, bamk- (/) Sect. 51. (A) 30 & 31 Vict. c. 131, s. 47. (^) Sect. 22. (i) Sects. 38, 200. 962 25 & 26 Vict. cap. 89. Vn. Oomptmiea autJtorized to register under this Act, Power of court to restrain further pro- ceedings. Order for winding up company. ruptcy, or insolvency of any suoli contributory as last aforesaid, or marriage of any such contributory being a female, the proTisions hereinbefore contained (i) with respect to the representatives, heirs, and devisees of deceased opntributories, and with reference to the assignees of bankrupt or insolvent oontributories, and to the hus- bands of married oontributories, shall apply ; (6.) That nothing herein contained shall autiiorize any company to alter any such provisions contained in any deed of settlement, contract of copartnery, cost book regulations, letters patent, or other instru- ment constituting or regulating the company, as would, if such company had originally been formed under this Act, have been con- tained in the memorandum of association (A) ; and are not autho- rized to be altered by this Act : But nothing herein contained shall derogate from any power of altering its constitution or regulations which may be vested in any company registering under this Act in pursuance of this part thereof by virtue of any Act of Par- liament, deed of settlement, contract of copartnery, letters patent, or other instrument constituting or regulating the company. 197. The court may, at any time after the presentation of a petition for winding up a company registered in pursuance of this part of this Act, and before making an order for winding up the company, upon the application by motion of any creditor of the company, restrain further proceedings in any action, suit, .or legal proceeding against any contributory of the company, as well as against the company as hereinbefore provided, upon such terms as the court thinks fit (?). 198. Where an order has been made for winding up a company registered in pursuance of this part of the Act, in addition to the provisions herein- before contained (m), it is hereby further provided that no suit, action, or other legal proceeding shall be commenced or proceeded with against any contributory of the company in respect of any debt of the company, except with the leave of the court, and subject to such terms as the court may impose. Winding up of unregistered companies. PART VIII. ASPLICAWON OF Act to -nNEEQISTEEED CoMPAKlBS. 199. Subject as hereinafter mentioned, any partnership, association, or company, except railway companies incorporated by Act of Parliament, con- sisting of more than seven members («), and not registered under this Act (o), and hereinafter included under the term unregistered company, may be wound up under this Act, and all the provisions of this Act with respect to winding up shall apply to such company, with the following exceptions and additions : (1 .) An unregistered company shall, for the purpose of determining the court having jurisdiction in the matter of the winding np, be deemed to be registered in that part of the United Kingdom where its prin- cipal place of business is situate ; or, if it has a principal place of business situate in more than one part of the United Kingdom, then in each part of the United Kingdom where it has a principal place of business ; moreover the principal place of business of an unregistered company, or (where it has a principal place of business situate in more than one part of the United Kingdom) such one of its principal places of business as is situate in that part of the United Kingdom in which proceedings are being instituted, shall for all the purposes of the winding up of such company be deemed to be the registered office of the company (jj) : (2.) No unregistered company shall be wound up xmder this Act voltm- tarily or subject to the supervision of the court : (i) Sects. 76, 77, 78, 105, 106. (k) Sects. 8, 9, 10. (l) Sect. 201. (m) Sect. 195. («) Sect 79 (3). (o) Sects. 176, 177. (p) Sect. 39. Joint Stock Companies. 963 (3.) The oircumstanoes under which an unregistered company may he VXH. AppUea- wound up are as follows ; (that is to say,) tian of Actio (a) Whenever the company is dissolved, or has ceased to carry on "oompmks. business, or is carrying on business only for the purpose of winding up its affairs : (b) Whenever the company is unable to pay its debts : (o) Whenever the court is of opinion that it is just and equitable that the company should be wound up : (4.) An unregistered company shall, for the purposes Of this Act, be deemed to be unable to pay its debts Iq), (a) Whenever a creditor to whom the company is indebted, at law or in equity, by assignment or otherwise, in a sum exceeding fifty pounds then due, has served on the company, by leaving the same at the principal place of business of the company, or by delivering to the secretary or some director or principal officer of the com- pany, or by otherwise serving the same in such manner as the court may approve or direct, a demand under his- hand requiring the com- pany to pay the sum so due, and the company has for the space of three weeks succeeding the service of such demand neglected to pay such sum, or to secure or compound for the same to the satisfaction of the creditor : (b) Whenever any action, suit, or other proceeding has been instituted against any member of the company for any debt or demand due, or claimed to be due, from the company, or from him in his character of member of the company, and notice in writing of the institution of such action, suit, or other legal proceeding having been served upon the company by leaving the same at the principal place of business of the company, or by delivering it to the secretary, or some director, manager, or principal officer of the company, or by othenrise serving the same in such manner as the court may approve or direct, the company has not within ten days after service of such notice paid, secured, or compounded for such debt or demand, or procured such action, suit, or other legal proceeding to be stayed, or indemnified the defendant to his reasonable satisfaction against such action, suit, or other legal proceeding, and against aU costs, damages, and expenses to be incurred by him by reason of the same: (c) Whenever in England or Ireland execution or other process issued on a judgment, decree, or order obtained in any court in favour of any creditor in any proceeding at law or in equity insti- tuted by such creditor against the company, or any member thereof as such, or against any person authorized to be sued as nominal defendant on behalf of the company, is returned unsatisfied : (d) Whenever, in the case of an unregistered company engaged in working mines within and subject to the jurisdiction of the stannaries, a oiistomary decree or order absolute for the sale of the machinery, materials, and effects of such mine has been made in a creditor's suit in the court of the vice-warden : (e) Whenever in Scotland the inducise of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest, have expired without payment being made : (f ) Whenever it is otherwise proved to the satisfaction of the court that the company is unable to pay its debts. 200. In the event of an unregistered company being wound up every Who to be person shall be deemed to be a contributory {r) who is liable at law or in deemed a con- equity to pay or contribute to the payment of any debt or liability of the tf?'"J^5'„"^*'''' ^ J r J ,•■,!_ 1 ii J. £ £ 1.-1, j3' 1. event of coin- company, or to pay or contribute to the payment oi any sum lor tne adjust- pgjjy being ment of the rights of the members amongst themselves, or to pay or oontri- wound up. bute to the payment of the costs, charges, and expenses of winding up the company, and every such contributory shall be liable to contribute to the assets of the company in the course of the winding up all sums due from him in respect of any such liability as aforesaid ; but in the event of the death, bankruptcy, or insolvency of any contributory, or marriage of any female (j) Sect. 80. (»•) Sect. 38. VOL. II. — s. 3 s 964 25 & 26 Vict. cap. 89. \lil. ApplKO- tion of Act to unregistered Companies, Power of court to restrain further proceed- ings. Effect of order for winding up company. Provision in case of unregis- tered company. Provisions in this part of Act cumulatiTe. contributory, the prOTisions hereinbefore contained 'with respect to the per- sonal representatives, heirs, and devisees of a deceased oontribntoiy, and to the assignees of a bankrupt or insolvent contributory, and to the husbands of married contributories, shall apply. 201. The court may, at any time after the presentation of a petition for ■winding up an unregistered company, and before making an order for wind- ing up the company, upon the application of any creditor of the company, restrain further proceedings in any action, suit, or proceeding against any contributory of the company, or against the company as hereinbefore pro- vided (s), upon such terms as the court thinks fit. 802. When an order has been made for winding up an unregistered com- pany in addition to the provisions hereinbefore contained in the case of com- panies formed under this Act (t), it is hereby further provided that no suit, action, or other legal proceeding shall be conamenced or proceeded with against any contributory of the company in respect of any debt of the com- pany, except -with the leave of the court, and subject to such terms as the court may impose. 203. If any unregistered company has no power to sue and be sued in a common name, or if for any reason it appears expedient, the court may by the order made for winding up such company, or by any subsequent order, direct that all such property, real and personal, including all interest, claims, and rights into and out of property, real and personal, and including things in action, as may belong to or be vested in the company, or to or in any person or persons on trust for or on behalf of the company or any part of such pro- perty, is to vest in the ofBcial liquidator or ofScial liquidators by his or flieir official name or names, and thereupon the same or such part thereof as may be specified in the order shall vest accordingly, and the official liquidator or official liquidators may, in his or their official name or names, or in such name or names and after giving such indemnity as the court directs, bring or defend any actions, suits, or other legal proceedings relating to any property vested in him or them, or any actions, suits, or otiber legal proceedings necessary to be brought or defended for the purposes of effectually winding up the com- pany and recovering the properfy thereof. 204. The provisions made by this part of the Act with respect to unregis- tered companies shall be deemed to be made in addition to and not in restric- tion of any provisions hereinbefore contained («) with respect to winding up companies by the court, and the court or official liquidator may, in addition to anything contained in this part of the Act, exercise any powers or do any act in the case of unregistered companies which might be exercised or done by it or him in winding up companies formed under this Act, but an unregis- tered company shall not, except in the event of its being wound up, be deemed to be a company under this Act, and then only to the extent provided by this part of this Act. Eepeal of Acts. Saving clause as to repeals. PART rx. Kepeal of Acts amd Temporaey Pbotisions. 205. After the oonunencemeut of this Act there shall be repealed the several Acts specified in the first part of the third schedule hereto, with this qualifi- cation, that so much of the said Act as is set forth in the second part of the said third schedule shall be hereby re-enacted and continue in force as if unrepealed. 206. No repeal hereby enacted shall affect, (1.1 Anything duly done under any Acts hereby repealed : (2.) The incorporation of any company registered under any Act hereby repealed : (3.) Any right or privilege acquired or liability incurred under any Act hereby repealed {x) : (s) Sect. 85. (0 Sect. 87. («) Sects. 79—128, 153—173. (x) Sub-sect. (3) repealed by ! tute Law Revision Act, 1875. Joint Stock Companies. 965 (4.) Any penalty, forfeiture, or other punishment incurred in respect of IX. Sepml of any ofEenoe against any Act hereby repealed : .A cia, fe . (5.) Table B in the schedule annexed to the Joint Stock Companies Act, 1856, or any part thereof, so far as the same applies to any company existing at the time of the commencement of this Act. 207. [Repealed by Statute Law fievisiou Act, 1876.] 208. Where previously to the commencement of this Act any conveyance, Saving of con- mortgage or other deed has been made in pursuance of any Act hereby veyanoe deeds, repealed, such deed shall be of the same force as if this Act had not passed, and for the purposes of such deed such repealed Act shall be deemed to remain in full force. 209. Every insurance company completely registered under the Act passed Compulsory in the eighth year of the reign of her present Majesty, chapter one hundred registration of and ten, intituled " An Act for the Registration, Incorporation, and Regula- ^^jJjL'" '^°^' tion of Joint Stock Companies," shall on or before the second day of Novem- ber, one thousand eight hundred and sixty-two, and every other company required by any Act hereby repealed to register under the said Joint Stock Companies Acts, or one of such Acts, and which has not so registered, shall, on or before the expiration of the thirty-first day from the commencement of this Act, register itself as a company under this Act in manner and subject to the regulations hereinbefore contained (y), with this exception, that no company completely registered under the said Act of the eighth year of the reign of her present Majesty shall be required to deliver to the registrar a copy of its deed of settlement ; and for the purpose of enabling such insur- ance companies as are mentioned in this section to register under this Act, this Act shall be deemed to come into operation immediately on the passing thereof (a) ; nevertheless the registration of such companies shall not have any effect until the time of the commencement of this Act. No fees shall be charged in respect of the registration of any company required to register by this section. 210. If any company required by the last section to register under this Act Penalty on corn- makes default in complying vnth the provisions thereof, then, from and after ^"'^ °°' regis- the day upon which such company is required to register under this Act jj v&t. c. li, until the day on which such company is registered under this Act (which s. 28. it is empowered to do at any time), the following consequences shall ensue ; (that is to say,) (1.) The company shall be incapable of suing either at law or in equity, but shall not be incapable of being made a defendant to a suit either at law or in equity : (2.) No dividend diaU be payable to any shareholder in such company : (3.) Each director or manager of the company shall for each day during which the company so being in default carries on business incur a penalty not exceeding five pounds, and such penalty may be reco- vered by any person, whether a shareholder or not in the company, and be applied by him to his own use : Nevertheless, such default shall not render the company so being in default illegal, nor subject it to any penalty or disability, other than as specified in this section ; and registration under this Act shall cancel any penalty or for- feiture, and put an end to any disability which any company may have incurred under any Act hereby repealed by reason of its not having registered under the said Joint Stock Companies Acts, 1856, 1857, or one of them. 211. [Repealed by Statute Law Revision Act, 1875.] 212. [Repealed by Statute Law Revision Act, 1876.J {U) Sect. 179. (2) Sect. 2. 3s2 966 25 & 26 Vict. cap. FIRST SCHEDULE. TABLE A. Reoulations fob Manaqbment of a Company LoinEi) by Seabfs. Shares. (1.) If several persona are registered as joint holders of any share, any one of such persons may give effectual receipts for any dividend payable in respect of such ^are. (2.) Every member shall, on payment of one shilling, or such less sum as the company in general meeting may prescribe, be entitled to a certificate (a), under the common seal of the company, specifying the share or shares held by him, and the amount paid up thereon. (3.) If such certificate ia worn out or lost, it may be renewed on payment of one ahilliTig, or such less sum as the company in general meeting may prescribe. Calh on Shares. (■4.). The directors may from time to time make such calls upon the members in respect of all monies unpaid on their shares as they think fit, provided that twenty- one days' notice at least is given of each call, and each member shall be liable to pay the amount of the calla so made to the peraona and at the times and places appointed by the directors. (5.) A call shall be deemed to have been made at the time when the resolution of the directors authorising such call was passed. (6.) If the call payable in respect of any share is not paid before or on the day appointed for payment thereof, the holder for the time being of such share shall be liable to pay interest for the same at the rate of five pounds per cent, per annum from the day appointed for the payment thereof to the time of the actual payment. (7.) The directors may, if they think fit, receive from any member willing to advance the same all or any part of the monies due upon the shares held by him beyond the sums actually called for ; and upon the monies so paid in advance, or so much thereof as from time to time exceeds the amount of the calls then made upon the shares in respect of which such advance has been made, the company may pay interest at such rate as the member paying such sum in advance and the directors agree upon. Transfers of Shares. (8.) The instrument of transfer of any share in the company shall be executed both by the transferor and transferee, and the transferor shall be deemed to remain a holder of such share until the name of the transferee is entered in the register book in respect thereof (S). (9.) Shares in the company shall be transferred in the following form : — I, A. B. of , in consideration of the sum of pounds paid to me by C. D. of , do hereby transfer to the said C 3. the share \_or shares] numbered standing in my name in the books of the company, to hold unto the said CD., his executors, administrators, and assigns, subject to the several conditions on which I held the same at the time of the execution thereof ; and I the said C D. do hereby agree to take the said share [or shares] subject to the same conditions. As witness our hands the day of . (10.) The company may decline to register any transfer of shares made by a member who is indebted to them. (11.) The transfer books shall be closed during the fourteen days imme- diately preceding the ordinary general meeting in each year. (a) Sect. 31. (J) Sect. 22. Joint Stock Companies. 967 Transmission of Shares. (12.) The executors or administrators of a deceased memter shall be the only- persons recognized by the company as having any title to his share. (13.) Any person becoming entitled to a share in consequence of the death, bankruptcy (c) or insolvency of any member, or in consequence of the marriage of any female member [d), may be registered as a member upon such evidence being produced as may from time to time be required by the company. (14.) Any person -who has become entitled to a share in consequence of the death, bankruptcy or insolvency of any member, or in consequence of the marriage of any female member, may, instead of being registered himself, elect to have some person to be named by him registered as a transferee of such share. ' (15.) The person so becoming entitled shall testify such election by executing to his nominee an instrument of transfer of such share. (16.) The instrument of transfer shall be presented to the company, accom- panied with such evidence as the directors may require to prove the title of the transferor, and thereupon the company shall register the transferee as a member. Forfeit«/re of Shares. (17.) If any member fails to pay any call on the day appointed for payment thereof, the directors may at any time thereafter during such time as the call remains unpaid, serve a notice on him, requiring him to pay such call, together vrith interest and any expenses that may have accrued by reason of such non-payment. (18.) The notice shall name a further day on or before which such call, and all interest and expenses that have accrued by reason of such non- payment, are to be paid. It shall also name the place where payment is to be made (the place so named being either the re- gistered office of the company or some other place at which calls of the company are usually made payable). The notice shall also state that in the event of non-payment at or before the time and at the place appointed the shares in respect of which such call was made will be liable to be forfeited. (19.) If the requisitions of any such notice as aforesaid are not complied with, any share in respect of which such notice has been given may, at any time thereafter, before payment of all calls, interest and expenses due in respect thereof has been made, be forfeited, by a resolution of the directors to that effect. (20.) Any share so forfeited shall be deemed to be the property of the company, and may be disposed of in such manner as the company in general meeting thinks fit. (21.) Any member whose shares have been forfeited shall notwithstanding be liable to pay to the company all calls owing upon such shares at the time of Che forfeiture. (22.) A statutory declaration in writing, that the call in respect of a share was made and notice thereof given, and that default in payment of the call was made, and that the forfeiture of the share was made by a resolution of the directors to that effect, shall be sufficient evidence of the facts therein stated, as against all persons entitled to such share, and such declaration and the receipt of the company for the price of such share shall constitute a good title to such share, and a certificate of proprietorship shall be delivered to a purchaser, and thereupon he shall be deemed the holder of such share discharged from all calls due prior to such purchase ; and he shall not be bound to see to the application of the purchase money, nor shall his title to such diare be affected by any irregularity in the proceedings in reference to such sale. Conversion of Shares into Stock. (23.) The directors may, with the sanction of the company previously given in general meeting, convert any paid-up shares into stock (e). (c) Sect. 75. {d) Sect. 78. (e) Sect. 12. 968 25 & 26 Vict. CAP. 89. (24.) When any shares have been converted into stock, the several holders of such stock may thenceforth transfer their respective interests therein, or any part of such interests, in the same manner and sub- ject to the same regulations as and subject to which any shares in the capital of the company may be transferred, or as near thereto as circumstances admit. (25.) The several holders of stock shall be entitled to participate in the dividends and profits of the company according to the amount of their respective interests in such stock ; and such interests shall, in pro- portion to the amount thereof, confer on the holders thereof respec- tively the same privileges and advantages for the purpose of voting at meetings of the company, and for other purposes, as would have been conferred by shares of equal amount in the capital of the company ; but so that none of such privileges or advantages, except the participation in the dividends and profits of the company, shaU be conferred by any such aliquot part of consolidated stock as would not, if existing in shares, have conferred such privileges or advan- tages. Increase in Capital. (26.) The directors may, with the sanction of a special resolution of the company previously given in general meeting, increase its capital by the issue of new shares, such aggregate increase to be of such amount and to be divided into shares of such respective amounts, as the company in general meeting directs, or, if no direction is given, as the directors think expedient. (27.) Subject to any direction to the contrary that may be given by the meeting that sanctions the increase of capital, all new shares shall be offered to the members in proportion to the existing shares held by them, and such ofEer shall be made by notice speoifyiig the num- ber of shares to which the member is entitled, and limiting a time within which the offer, if not accepted, will be deemed to be declined, and after the expiration of such time, or on the receipt of an intima- tion from the member to whom such notice is given that he declines to accept the shares offered, the directors may dispose of the same in such maimer as they think most beneficial to the company. (28.) Any capital raised by the creation of new shares shall be considered as part of the original capital, and shall be subject to the same pro- visions with reference to the payment of calls, and the forfeiture of shares on non-payment of calls or otherwise, as if it had been part of the origiaal capital. General Meetings. (29.) The first general meeting shall be held at such time, not being more than six months (/) after the registration of the company, and at such place, as the directors may determine. (30.) Subsequent general meetings shall be held at such time and place as may be prescribed by the company in general meeting ; and if no other time or place is prescribed, a general meeting shall be held on the first Monday in February in every year, at such place as may be determined by the directors. (31.) The above-mentioned general meetings shall be called ordinary meetings ; all other general meetings shall be called extraordinary. (32.) The directors may, whenever they think fit, and they shall upon a requisition made in writing by not less than one-fifth in number of the members of the company, convene an extraordinary general meeting. (33.) Any requisition made by the members shall express the object of the meeting proposed to be called, and shall be left at the registered ofiice of the company. (34.) Upon the receipt of such requisition the directors shall forthwith proceed to convene an extraordinary general meeting. If they do not proceed to convene the same within twenty-one days from the (/) Now four months : 30 & 31 Vict. o. 131, s. 39. J^oiNT Stock Companies. 969 date of the requisition, the requisitioniBta, or auy other members amounting to the required number, may themselves couyene an extraordinary general meeting. Froceedinga at General Meetings. (3S.) Seven days' notice at the least {g), specifying the place, the day and the hour of meeting, and in case of special business the general nature of such business (A), shall be given to the members in manner hereinafter mentioned, or in such other manner (if any), as may be prescribed by the company in general meeting ; but the non-receipt of such notice by any member shall not invalidate the proceedings at any general meeting. (36.) All business shall be deemed special that is transacted at an extra- ordinary meeting (J), and all that is transacted at an ordinary meeting, with the exception of sanctioning a dividend and the consideration of the aocoimts, balance sheets and the ordinary report of tho directors. (37.) No busiuess shall be transacted at any general meeting except the declaration of a dividend, unless a quorum of members is present at the time when the meeting proceeds to business ; and such quorum shall be ascertained as foUows ; that is to say, if the persons who have taken shares in the company at the time of the meeting do not exceed ten in number, the quorum shall be five ; if they exceed ten there shall be added to the above quorum one for every five addi- tional members up to fifty, and one for every ten additional mem- bers after fifty, with this limitation, that no quorum shall in any case exceed twenty. (38.) If within one hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, diall be dissolved ; in any other case it shall stand ad- journed to the same day in the next week, at the same time and place ; and it at such adjourned meeting a quorum is not present it shall be adjourned sine die. (39.) The chairman (if any) (k) of the board of directors shall preside as chairman at every general meeting of the company. (40.) If there is no such chairman [k], or if at any meeting he is not present within fifteen minutes after the time appointed for holding the meeting, tie members present shall choose some one of their number to be chairman. (41.) The chairman may, with the consent of the meeting, adjourn any meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. (42.) At any general meeting, unless a poU is demanded by at least five members, a declaration by the chairman that a resolution has been carried, and an entry to that effect in the book of proceedings of the company {I), shall be sufficient evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. (43.) If a poll is demanded by five or more members it shall be taken m such manner as the chairman directs, and the result of such poll shall be deemed to be the resolution of the company in general meeting. In the case of an equality of votes at any general meeting, the chairman shall be entitled to a second or easting vote. Votes of Members. (44.) Every member shall have one vote for every share up to ten {m) : he shall have an additional vote for every five shares beyond the first ten shares up to one hundred, and an additional vote for every ten shares beyond the first hundred shares. ia) Sect. 62. (*) Sect. 52. A Arts. (95)-(97). ('), Sect. 67. Art. (31)/ W Sect. 52. 970 . 25 & 26 Vict. cap. 89. (45.) If any member is a lunatic or idiot lie may vote by his committee, curator bonis or other legal curator. (46.) If one or more persons are jointly entitled to a share or shares, the member whose name stands first in the register of members as one of the holders of such share or shares, and no other, shall be entitled to vote in respect of the same. (47.) No member shall be entitled to vote at any general meeting unless all calls due from him have been paid, and no member shall be entitled to vote in respect of any share that he has acquired by transfer at any meeting held after the expiration of three months from the registration of the company, unless he has been possessed of the share in respect of which he claims to vote for at least three months previously to the time of holding the meeting at which he proposes to vote. (48.) Votes may be given either personally or by proxy. (49.) The instrument appointing a proxy shall be in writing, under the hand of the appointor, or if such appointor is a corporation, under their common seal, and shall be attested by one or more witness or ■witnesses : no person shall be appointed a proxy who is not a member of the company. (50.) The instrument appointing a proxy shall be deposited at the regis- tered office of the company not less than seventy-two hours before the time for holding the meeting at which the person named in such instrument proposes to vote, but no instrument appointing a proxy shall be valid after the expiration of twelvemonths from the date of its execution. (51.) Any instrument appointing a proxy shall be in the following form («) : — Company, Limited. I of in the county of being a member of the company, limited, and entitled to vote or votes, hereby appoint of as my proxy, to vote for me and on my be- half at the [ordinary m' extraordinary, as the case may be'] general meeting of the company to be held on the day of , and at any adjournment thereof [or, at any meeting of the company that may be held in the year J. As witness my hand this day of . Signed by the said in the presence of . Directors. (52.) The number of the directors, and the names of the first directors, shall be determined by the subscribers of the memorandum of association. (53.) Until directors are appointed, the subscribers of the memorandum of association shall be deemed to be directors. (64.) The future remuneration of the directors, and their remuneration for services performed previously to the first general meeting, shall be determined by the company in general meeting. Fowers of Directors. (55.) The business of the company shall be managed by the directors, who may pay all expenses incurred in getting up and registering the company, and may exercise aU such powers of the company as are not by the foregoing Act, or by these articles, required to be exer- cised by the company in general meeting, subject nevertheless to any regulations of these articles, to the provisions of the foregoing Act, and to such regulations, being not inconsistent with the afore- said regulations or provisions, as may be prescribed by the company in general nieeting ; but no regulation made by the company in . general meeting shall invalidate any prior act of tiie directors which would have been valid if such regulation had not been made. M This instrument is charged may not be stamped after execution : with a duty of U., which may be 33 & 34 Vict. o. 97, 8. 102. denoted by an adhesive stamp. It Joint Stock Companies. 971 (56.) The continuing directors may act notwithstanding any vacancy in their body. Disqualification of Directors. (.57.) The office of director shall be vacated, — If he holds any other office or place of profit under the company ; If he becomes bankrupt or insolvent ; If he is concerned in or participates in the profits of any contract with the company ; But the above rules shall be subject to the following exceptions : That no director shall vacate his office by reason of his being a member of any company which has entered into contracts with or done any work for the company of which he is director ; never- theless he shall not vote in respect of such contract or work ; and if he does so vote his vote shall not be counted. notation of Directors. (58.) At the first ordinary meeting after the registration of the company the whole of the directors shall retire from office ; and at the first ordinary meeting in every subsequent year one-third of the directors for the time being, or if their niimber is not a multiple of three, then the number nearest to one-third shall retire from office. (59.) The one-third or other nearest number to retire during the first and second years ensuing the first ordinary meeting of the company shall, vmless the directors agree among themselves, be determined by ballot : in every subsequent year the one-third or other nearest number who have been longest in office shall retire. (60.) A retiring director shall be re-eligible. (61.) The company at the general meeting at which any directors retire in manner aforesaid shall fill up the vacated offices by electing a like number of persons. (62.) If at any meeting at which an election of directors ought to take place the places of the vacating directors are not filled up, the meeting shall stand adjourned tm the same day in the next week, at the same time and place ; and if at such adjoiimed meeting the places of the vacating directors are not filled up, the vacating dlreo- tors, or such of them as have not had their places filled up, shall continue in office until the ordinary meeting in the next year, and so on from time to time until their places are filled up. (63.) The company may from time to time, in general meeting, increase or reduce the number of directors, and may also determine in what rotation such increased or reduced number is to go out of office. (64.) Any casual vacancy occurring in the board of directors may be filled up by the directors, but any person so chosen shall retain his office so long only as the vacating director would have retained the same if no vacancy had occurred. (65.) The company, in general meeting, may, by a special resolution, re- move any director before the expiration of his period of office, and may by an ordinary resolution appoint another person in his stead : the person so appointed shall hold office during such time only as the director in whose place he is appointed would have held the same if he had not been removed. Proceedings of Directors. (66.) The directors may meet together for the dispatch of business, adjourn, and otherwise regulate their meetings as they think fit, and deter- mine the quorum necessary for the transaction of business : ques- tions arising at any meeting shall be decided by a majority of votes : in case of an equality of votes the chairman shall have a second or casting vote : a director may at any time summon a meeting of the directors. (67.) The directors may elect a chairman of their meetings, and determine the period for which he is to hold office ; but if no such chairman is 972 25 & 26 Vict. cap. 89. elected, or if at any meeting the chairman is not present at the time appointed for holmng the same, the directors present shall choose some one of their numher to he chairman of such meeting. (68.) The directors may delegate any of their powers to committees con- sisting of such member or members of their body as they think fit : any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on them by the directors. (69.) A committee may elect a chairman of their meetings : if no such chairman is elected, or if he is not present at the time appointed for holding the same, the members present shall choose one of their number to be chairman of such meeting. (70.) A committee may meet and adjourn as they think proper : questions arising at any meeting shall be determined by a majority of votes of the members present ; and in case of an equality of votes the chair- man shall have a second or casting vote. (71.) AH acts done, by any meeting of the directors, or of a committee of directors, or by any person acting as a director, shall, notwithstand- ing that it be afterwards discovered that there was some defect in the appointment of any such directors or persons acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a director (o). JDividende. (72.) The directors may, with the sanction of the company in general meeting, declare a dividend to be paid to the members in proportion to their shares. (73.) No dividend shall be payable except out of the profits arising from the business of the company. (74.) The directors may, before recommending any dividend, set aside out of the profits of the company such sum as they think proper as a reserved fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining the works connected with the business of the company, or any part thereof ; and the directors may invest the sum so set apart as a reserved fund upon such securities as they may select. (75.) The directors may deduct from the dividends payable to any member all such sums of money as may be due from him to the company on account of calls or otherwise. (76.) Notice of any dividend that may have been dedared shall be given to each member in manner hereinafter mentioned {p) ; and all dividends unclaimed for three years, after having been declared, may be for- f eitod by the directors for the benefit of the company. (77.) No dividend shall bear interest as against the company. Accounts, (78.) The directors shall cause true accounts to be kept, — Of the stock in trade of the company ; Of the sums of money received and expended by the company, and the matter in respect of which such receipt and expenditure takes place : and, Of the credits and liabilities of the company ; The books of account shall be kept at the registered ofiice of the com- pany, and subject to any reasonable restrictions as to the time and manner of inspecting the same that may be imposed by the company in general meeting, shall be open to the inspection of the members dur- ing the hours of business. (79.) Once at the least in every year the directors shall lay before the company in general meeting a statement of the income and expen- diture for the past year, made up to a date not more than tiaee months before such meeting. (80.) The statement so made shall show, arranged under the most conve- nient heads, the amount of gross income, distinguishing the several (o) Sect. 67. {p) Arts. (96)— (97). Joint Stock Companies. 973 sources from which it has been derived, and the amount of gross expenditure, distinguishing the expenses of the establishment, salaries, and. other like matters : Every item of expenditure fairly chargeable against the year's income shall be brought into account, 80 that a just balance of profit and loss may be laid before the meet- ing ; and in cases where any item of expenditure which may in fairness be distributed over several years has been incurred in any one year the whole amount of such item shall be stated, with the addition of the reasons why only a portion of such expenditure is charged against the income of the year. (81.) A balance sheet shall be made out in every year, and laid before the company in general meeting, and such balance sheet sbalL contain a summary of the property and liabilities of the company arranged under the heads appearing in the form annexed to this table (y), or as near thereto as circumstances admit. (82.) A printed copy of such balance sheet shall, seven days previously to such meeting, be served on every member in the manner in which notices are hereinafter directed to be served (r) . Audit. (83.) Once at the least in every year the aooonnts of the company shall be examined, and the correctness of the balance -sheet ascertained by one or more auditor or auditors. (84.) The first auditors shall be appointed by the directors : Subsequent auditors shall be appointed by the company in general meeting. (86.) If one auditor only is appointed, aU the provisions herein contained relating to auditors shall apply to him. (86.) The auditors may be members of the company ; but no person is eligible as an auditor who is interested otherwise than as a member in any transaction of the company ; and no director or other officer of the company is eligible during his continuance in office. (87.) The election of auditors shall be made by the company at their ordi- nary meeting in each year. (88.) The remuneration of the first auditors shall be fixed by the directors ; that of subsequent auditors shall be fixed by the company in general meeting. (89.) Any auditor shall be re-eligible on his quitting office. (90.) If any casual vacancy occurs in the office of any auditor appointed by the company, the directors shall forthwith call an exti-aordinary general meeting for the piirpose of supplying the same. (91.) If no election of auditors is made in manner aforesaid the board of trade may, on the application of not less than five members of the company, appoint an auditor for the current year, and fix the remu- neration to he paid to him by the company for his services. (92.) Every auditor shall be supplied with a copy of the balance sheet, and it shall be his duty to examine the same, with the accounts and vouchers relating thereto. (93.) Every auditor shall have a list delivered to him of all books kept by the company, and shall at all reasonable times have access to the books and accounts of the company : He may at the expense of the company, employ accountants or other persons to assist him in investigating such accounts, and he may in relation to such accounts examine the directors or any other officer of the company. (94.) The auditors shall make a report to the members upon the balance sheet and accounts, and in every such report they shall state whether, in their opinion, the balance sheet is a full and fair balance sheet, containing the particulars required by these regulations, and pro- perly drawn up so as to exhibit a true and correct view of the state of the company's aflEairs, and in case they have called for explanations or information from the directors, whether such expla- nations or information have been given by the directors, and whether they have been satisfactory ; and such report shall be read, together vidth the report of the directors, at the ordinary meeting. (q) Infra. (»•) Arts. (95)— (97). 974 25 & 26 Vict. cap. 89,' Notices. (95.) Anotioemaybe served bythe company upon any member either per- sonally or by sending it through the post in a prepaid letter addressed to such member at Ms registered place of abode. (96.) AH notices directed to be given to the members shall •with respect to any share to which persons are jointly entitled, be given to which- ever of such persons is named first in the register of members ; and notice so given shall be sufficient notice to all the holders of such share. (97.) Any notice, if served by post, shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post ; and in proving such service it shall he sufficient to prove that the letter containing the notices was pro- perly addressed and put into the post office. Joint Stock Companies. 975 g- ■a 6 ■g •I §) !> ■^ -3 '^ °1 sl.a uu- ; CD 1 -^ S g ■a s i I. t4 03 ^ _ '^' S 9 ;i si"^ . S=a ti SO o n ft ■ -^^ —sis 2 « 9 ■« § S ^ " ^^a 976 25 & 26 Vict. cap. 89. TABLE B («). Tablb op Fees to be paid to the Kegistbae of Joikt Stock Companies by a Company haTing a Capital divided into Shares. For registration of a Company whose nominal capital (*) does not £ a. d. exceed 2,000?., a fee of . . 2 For registration of a company whose nominal capital (<) exceeds 2,000/., the above fee of 2?., vpith the following additional fees, regulated according to the amount of nominal capital, (that is to say,) . ... For every 1,000?. of nominal capital, or part of £ s. d. 1,000?., after the first 2,000?., up to 5,000?. ..100 For every 1,000?. of nominal capital, or part of 1,000?., after the first 5,000?., up to 100,000?. ..050 For every 1,000?., of nominal capital, orpart of 1,000?. after the first 10,000?. .. 10 For registration of any increase of capital made after the first registration of the company, the same fees per 1,000?., or part of 1,000?., as would have been payable if such increased capital had formed part of the original capital at the time of registration. Provided that no company shall be liable to pay in respect of nominal capital on registration, or afterwards, any greater amount of fees than 50?., taking into account in the case of fees payable on an increase of capital after registration fees paid on registration. For registration of any existing company, except such companies as are by this Act exempted from payment of fees in respect of registration under this Act, the same fee as is charged for regis- tering a new company. For registering any document hereby required or authorized to be registered, other than the memorandum of association . . . . 5 For making a record of any fact hereby authorized or required to be recorded by the registrar of companies, a fee of , , ..050 TABLE C. Table op Fees to be paid to the Keqisieae op JomT Stock Companies by a Company not having a Capital divided into Shares. For registration of a company whose number of members as stated £ s. d. in the articles of association does not exceed 20 , . . . ,.200 For registration of a company whose number of members, as stated in the articles of association, exceeds 20, but does not exceed 100-5 For registration of a company, whose number of members, as stated in the articles of association, exceeds 100, but is not stated to be unlimited, the above fee of S?., with an additional 5s. for every 50 members or less number than 50 members after the first 100. For registration of a company in which the number of members is stated in the articles of association to be unlimited, a fee of . . 20 For registration of an increase on the number of members made after the registration of the company in respect of every 50 mem- bers, or less than 60 members, of such increase , . . , ..050 Provided that no one company shall be liable to pay on the whole a greater fee than 20?. in respect of its number of members, taking into account the fee paid on the first registration of the company. For registration of any existing company, except such companies as are by this Act exempted from payment of fees in respect of registration under th^ Act, the same fee as is charged for regis- tering a new company. For registering any document hereby required or authorized to be registered, other than the memorandum of association . . ..060 For making a record of any fact hereby authorized or required to be recorded by the registrar of companies, a fee of . . , . 5 (s) See sects. 17, 71. 51 Vict. c. 8, s. 11 ; and 62 Vict. c. 7, {tj See as to ad valorem stB,m-pdLniy, m -16. — Joint Stock Companies. 977 rOEM D («). Poem of Statement referred to in Part III. of the Act. • The capital of the company is , divided into shares of each. The number of shares issued is . Calls to the amount of pounds per share have been made, under which the sum of pounds has been received. The liabilities of the company on the first day of January [or July] were, — Debts owing to sundry persons by the company : On judgment, £ . On specialty, £ . On notes or bills, £ =. On simple contracts, £ . On estimated liabilities £ . The assets of the company on that day were, — Government securities [stating them], £ . Bills of exchange and promissory notes, £ . Cash at the bankers, £ . Other securities, £ . * If the company has no capital divided into shares the portion of the statement relating to capital and shares must be omitted. SECOND SOHEDtTLB. FORM A(t)). Memoeanbum OS AssooiATiON of a Company limited by Shares [x). 1st. The name of the company is " The Eastern Steam Packet Company Limited." 2nd. The registered office of the company wiU be situate in England. 3rd. The objects for which the company is established are " the convey- ance of passengers and goods in ships or boats between such places as the company may from time to time determine, and the doing all such other things as are incidental or conducive to the attainment of the above object." 4fji. The liability of the members is limited. 6th. The capital of the company is two hundred thousand pounds, divided into one thousand shares of two hundred pounds each. We, the several persons whose names and addresses are subscribed, are de- sirous of being formed into a company in pursuance of this memorandum of association, and we respectively agree to take the number of shares in the capital of the company set opposite our respective names. Nimiber of Names, Addresses, and Desoriptions of Subscribers. Shares taken by each Subscriber. "I. John Jones of , in the county of , merchant . . 200 "2. John Smith of , in the county of 25 "3. Thomas Green of , in the county of . , 30 "4. John Thompson of , in the county of • . . 40 "5. Caleb Tyhite of , in the county of 15 "6. Andrew Brown of , in the county of . . 5 "7. Csesar White of , in the county of Total shares taken 10 325 Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. (m) Sects. 44, 71. ((•) Sect. 71. (.r) Sect. 8. 978 . 25 & 26 Vict. cap. -89, FORM B, •Memobaudtjh aot) Aetioles of Association of a company limited by Gruarautee, and not having a Capital divided into Shares («/). Memorandum of Association, lat. The name of the company is " The Mutual London Marine Association Limited." 2nd. The registered office of the company ■will be situate in England. 3rd. The objects for -which the company is established are, "the mutual insurance of ships belonging to members of the company, and the doing all such other things as are incidental or conducive to the attainment of the above objects." 4th. Every member of the company undertakes to contribute to the assets of the company in the event of the same being wound up during the time that he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceases to be a member, and the costs, charges and expenses of winding up the same, and for the adjustment of the rights of the ooutributories amongst themselves, such amount as may be required not exceeding ten pounds. We, the several persons whose names and addresses are subscribed, are desir> ous of being formed into a company, in pursuance of this memorandum of association. Names, addresses, and descriptions of subscribers. "1. John Jones of , in the county of , merchant. "2. John Smith of , in the county of "3. Thomas Green of , in the county of " 4. John Thompson of , in the county of "5. Caleb White of , in the county of " 6. Andrew Brown of ■ , in the coimty of "7. Csesar White of , in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute Street, OlerkenweU, Middlesex. Aetioles of Association to accompany preceding Memoeaudtm op Association (z). (1.) The company, for the purpose of registration, is declared to consist of five hundred members. (2.) The directors hereinafter mentioned may, whenever the business of the , association requires it, register an increase of members. Definition of Members. (3.) Every person shall be deemed to have agreed to become a member of the company who insures any ship or share in a ship in pursuance of the regulations hereinafter contained. General Meetings. (4.) The first general meeting shall be held at such time, not being more than three months after the incorporation of the company, and at such place as the directors may determine. (5.) Subsequent general meetings shall be held at such time and place, as may be prescribed by the company in general meeting {«) ; and if no other time or place is prescribed, a general meeting shall be held on the first Monday in February in every year, at such place as may be determined by the directors. (6.) The above-mentioned general meetings shall be called ordinary meet- ings ; all other general meetings shall be called extraordinary. (y) Sects. 9, 14. pany Precedents, 3rd ed., p. 111. («) Sect. 14. See Palmer's Com- (a) Sect. 49. Joint Stock Companies. '&79 (7.) The directors may, whenever they think fit, and they shall, upon a requisition made in writing by any five or more members, convene an extraordinary general meeting. (8.) Any requisition made by the members shall express the object of the meeting proposed to be called, and shall be left at the registered office of the company. (9.) Upon the receipt of such requisition the directors shall forthwith pro- ceed to convene a general meeting : If they do not proceed to convene the same within twenty-one days from the date of the requisition, the requisitionists or any other five members may them- selves convene a meeting. Froceedings at General Meetings. (10.) Seven days' notice at the least, specifying the place, the day and the hour of meeting, and in case of special business the general nature of such business, shall be given to the members in manner hereinafter menj;ioned or in such other manner (if any) as may be prescribed by the company in general meeting ; but the non-receipt of such notice by any member shall not invalidate the proceedings at any general meeting. (11.) AH business shall be deemed special that is transacted at an extraor- dinary meeting, and all that is transacted at an ordinary meeting, with the exception of the consideration of the accounts, balance sheets, and the ordinary report of the directors. (12.) No business shall be transacted at any meeting except the declaration of a dividend, unless a quorum of members is present at the com- mencement of such business ; and such quorum shall be ascertained as follows ; that is to say, if the members of the company at the time ' of the meeting do not exceed ten in number, the quorum shall be five ; if they exceed ten there shall be added to the above quorum one for every five additional members up to fifty, and one for every ten additional members after fifty, with this limitation, that no quorum shall in any case exceed thirty. (13.) If within one hour from the time appointed for the meeting a quorum of members is not present, the meeting if convened upon the requi- sition of the members, shall be dissolved : In any other case it shall stand adjourned to the ssime day in the following week at the same time and place ; and if at such adjourned meeting a quorum of members is not present, it shall be adjourned sine die. (14.) The chairman (if any) of the directors shall preside as chairman at every general meeting of the company. (15.) If there is no such chairman, or if at any meeting he is not present at the time of holding the same, the members present shall choose some one of their number to be chairman of such meeting. (16.) Thef chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. (17.) At any general meeting, unless a poU is demanded byat least five members, a declaration by the chairman that a resolution has been carried, and an entry to that effect in the book of proceedings of the company, shall be sufficient evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. (18.) If a poU is demanded in manner aforesaid, the same shall be taken in such manner as the chairman directs, and the result of such poU shall be deemed to be the resolution of the company in general meeting. Votes of Members. (19.) Every member shall have one vote and no more. (20.) If any member is a lunatic or idiot he may vote by his committee, curator bonis, or other legal curator. VOL. II. S. 3 T 25 & 26 Vict. cap. 89. (21.) No member shall be entitled to Tote at any meeting unless aU monies due from him to the company have been paid (22.) Votes may be given either personally or by proxies : A proxy shall be appointed in writing under the hand of the appointor, or if such appointor is a corporation under its common seal. (23.) No person shall be appointed a proxy who ia not a member, and the instrument appointing biTn shall be deposited at the registered office of the company not. less than forty-eight hours before the time of holding the meeting at which he proposes to vote. (24.) Any instrument appointing a proxy shall be in the following form : Company Limited. I of in the county of being a member of the Company Limited, hereby appoint of as my proxy, to vote for me and on my behalf at the [ordinary or exteaordinary, as the ease may J«] general meeting of the company, to be held on the day of , and at any adjoumment thereof to be held on the day of next [or at any meeting of the company that may be held in the year ]. As witness my hand this day of . Signed by tiie said in the presence of (i). Directors. (2fi.) The number of the directors, and the names of the first directors, shall be determined by the subscribers of the memorandum of associa- tion. (26.) Until directors are appointed, the subscribers of the memorandum of the association shall for all the purposes of this Act be deemed to be directors. Fotvers of Direeton. (27.) The business of the company shall be managed by the directors, who may exercise all such powers of the company as are not hereby required to be exercised by the company id general meeting ; but no regulation made by the company in general meeting shall invalidate any prior act of the directors which would have been valid if such regulation had not been made. Bleetion of Directors. (28.) The directors shall be elected annually by the company in general meeting. Business of Company. [Sere insert rules as to mode in which business of insurance is to ie conducted (c)."] Accounts. (29.) The accounts of the company shall be audited by a committee of five members, to be called the audit committee. (30.) The first audit committee shall be nominated by the directors out of the body of members. (31.) Subsequent audit committees shall be nominated by the members at the ordinary general meeting in each year. (32.) The audit committee shall be supplied with a copy of the balance sheet, and it shall be their duty to examine the same with the ac- counts and vouchers relating thereto. (33.) The audit committee shall have a list delivered to them of all books kept by the company, and they shall at all reasonable times have access to the books and accounts of the company ; they may, at the expense of the company, employ accountants or other persons to assist them in investigating such accounts, and they may in relation to such accounts examine the directors or any other officer of the company. (S) See 33 & 34 Vict. o. 99, and (c) Palmer's Company Precedents, B, 102 of the Stamp Act, 1870. 151. Joint Stock Companies. 981 (34.) The audit committee shall mate a report to the members upon the balance sheet and accounts, and in every such report they shall state whether in their opinion the balance sheet is a full and fair balance sheet, containing the particulars required by these regulations of the company, and properly drawn up, so as to exhibit a true and correct view of the state of the company's affairs, and in case they have called for explanation or information from the directors, whether such explanations or information have been given by the directors, and whether they have been satisfactory, and such report shall be read together wifli the report of the directors at the ordinary meeting. Notices. (35.) A notice may be served by the company upon any member either personally, or by sending it through the post in a prepaid letter ad- dressed to such member at his registered place of abode. (36.) Any notice, if served by post, shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post ; and in proving such service it shall be sufficient to prove that the letter containing the notice was pro- perly addressed and put into the post office. Winding up. (37.) The company shall be wound up voluntarily whenever an extraordi- nary resolution, as defined by the Companies Act, 1862, is passed, requiring the company to be wound up voluntarily. Names, addresses, and descriptions of subscribers. "1. John Jones of , in the county of , merchant. ' 2. John Smith of , in the county of ' 3. Thomas Green of , in the comity of ' 4. John Thompson of , in the county of ' 5. Caleb White of , in the county of ' 6. Andrew Brown of , in the county of ■ 7. Ceesar White of , in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. FORM C. Memoeandum and AETimBS OF Association of a company limited by G-uarantee, and having a Capital divided into Shares (rf). M&morcmdum of Association. , 1st. The name of the company is " The Highland Hotel Company, Limited." 2nd. The registered office of the company will be situate in Scotland. 3rd. The objects for which the company is established are ' ' the facilitating travelling in the highlands of Scotland, by providing hotels and conveyances by sea and by land for the accommodation of travellers, and the doing all such other things as are incidental or conducive to the attainment of the above object." 4th. Every member of the company undertakes to contribute to the assets of ihe company in the event of the same being wound up during the time that he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceases to be a member, and the costs, charges and expenses of winding up the same, ((?) Sects. 9, 14. 3x8 982 25 & 26 Vict. cap. 89.' and for the adjustment of the rights of the contributories amongst themselves such amount as may be required not exceeding twenty pounds. We, the several persons whose names and addresses are subscribed, are desi- rous of being formed into a company, in pursuance of this memorandum of association. Names, addresses, and descriptions of subscribers. " 1 . John Jones of , in the county of , merchant. " 2. John Smith of , in the county of " 3. Thomas Green of , in the county of " 4. John Thompson of , in the county of "5. Caleb White of , in the county of "6. Andrew Brown of , in the county of " 7. Caesar White of , in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. Articles of Association to accompany preceding Memorandum of Association. 1 . The capital of the company shall consist of five himdred thousand pounds divided into five thousand shares of one hundred pounds each. 2. The directors may, with the sanction of the company in general meeting, reduce the amount of shares. 3. The directors may, with the sanction of the company in general meeting, cancel any shares belonpring to the company. 4. All the articles of Table A shall be deemed to be incorporated with these articles, and to apply to the company. We, the several persons whose names and addresses are subscribed, agree to take the number of shares in the capital of the company set opposite our respective names. Names, Addresses, and Descriptions of Subscribers. Numler ol Shares taken by each Subscriber. " 1. "2. "3. "4. "■5. "■6. "7. John Jones of , in the county of John Smith of , in the county of Thomas Green of , in the county of . . John Thompson of , in the county of Caleb White of , in the county of . . ... Andrew Brown of , in the county of — — . . CsBsar White of , in the county of . . ,', Total shares taken 200 26 30 40 15 -. 5 10 325 Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. Joint Stocic Companies. 983 FORM D. Mbmoeandum and Abtioles of Association of an unlimited Company, having a Capital divided into Shares («). Memorandum of Association. Ist. The name of the company is " The Patent Stereotype Company." 2nd. The registered office of the company will he situate in England. 3rd. The objects for which the company is established are " the working of a patent method of founding and casting stereotype plates, of which method John Smith of London, is the sole patentee." We, the several persons whose names are subscribed, are desirous of being formed into a company, in pursuance of this Memorandum of Association. Names, addresses, and descriptions of subscribers. " 1. John Jones of , in the county of , merchant. " 2. John Smith of , in the county of " 3. Thomas Green of , in the county of " i. John Thompson of , in the county of " 5. Caleb White of , in the county of "6. Andrew Brown of , in the county of " 7. Abel Brown of , in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 20, Bond Street, Middlesex. Articles of Association to accompany the preceding Memorandum of Association. Capital of the Company. The capital of the company is two thousand pounds divided into twenty shares of one hundred pounds each. Application of Table A. All the articles of Table A. shall be deemed to be incorporated with these articles, and to apply to the company. We, the several persons whose names and addresses are subscribed, agree to take the number of shares in the capital of the company set opposite our respective names. Names, Addresses, and Descriptions of Subsoribera. " 1. "2. "3. "4. "5. John Jones of , in the county of , merchant John Smith of , in the county of Thomas Green of , in the county of . . John Thompson of , in the county of Caleb White of , in the county of Andrew Brown of , in the county of- . . Abel Brown of , in the county of Total shares taken Number of Shares taken by each Snbscribei. 18 Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 20, Bond Street, Middlesex. {«) Sects. 10, 14. 984 25 & 26 Vict. cap. 89. FOEM E. as required by the Second Part of the Act {/). Stt mhtap. y oe Capitai, anb Shakes of the Company, made up to the day of , Nominal capital £ , divided into shares of £ each. Numher of shares taken up to the day of . There has been called up on each share £ . Total amount of calls received £ . Total amount of calls unpaid £ . List op Peesons holding shares in the company on the day of , and of persons who have held shares thereon at any time during the year immediately preceding the said day of , showing their names and addresses, and an account of the shares so held. NAMEa, Addbesbes AND Occupations. Shares held by existing Members on the day of . Account of Shakes. Additional Shares held by existing Members during pre- ceding year. Number. Bate of Ti'ansfer, Shares held by , Persons no longer Members. Number. Date of Transfer. FORM F. Licence to hold Lauds (y). The lords of the committee of privy council appointed for the consideration of matters relating to trade and foreign plantations hereby license the association, limited, to hold the lands hereunder described [insert description of lands']. The conditions of this licence are [insert conditions, if amy]. THIED SCHEDULE. FiEST Part (A). [Bepeala certain Acts enumerated.) Second Paet (A). 7 & 8 Vict. c. 113, s. 47. . paniesto have ^^ery company of more than sis persons established on the sixth dajr of the powers of ^^7< °°s thousand eight hundred and forty-four, for the purpose of carrying suing and being on the trade or business of bankers within the distance of sixty-five miles ^^iJ' from London, and not within the provisions of the Act passed in the session holdeu in the seventh and eighth years of the reign of her present Majesty, chapter one hundred and thirteen, shall have the same powers and privileges (/) Sect. 26. d/) Sect. 21. (h) Sect. 205. Partnership Amendment. 985 of samg and being sued in the name of any one of the public officers of such copartnership as the nominal plaintiff, petitioner or defendant on behalf of such copartnership ; and all judgments, decrees and orders made and obtained in any such suit may be enforced in like maimer as is provided with respect to such companies carrying on the said trade or business at any place in England exceeding the distance of sixty-five miles from London, under the provisions of an Act passed in the seventh year of the reign of King George the Fourth, chapter forty-six, intituled " An Act for the better regulating Copartnerships of certain Bankers in England, and for amending so much of an Act of the thirty-ninth and fortieth years of the reign of his late Majesty King G-eorge the Third, intituled ' An Act for establishing an Agreement with the Governor and Company of the Bank of England for advancing the Sum of Three Millions towards the Supply for the Service of the Year One thousand eight hundred,' as relates to the same," provided that such first-mentioned company shall make out and deliver from time to time to the Commissioners of Stamps and Taxes the several accounts or returns required by the last-mentioned Act, and all the provisions of the last- recited Act, as to such accounts or returns shall be taken to apply to tho accounts or returns so made out and delivered by such first mentioned companies as if they had been originally included in the provisions of the last-recited Act. 20 & 21 Vict. 0. 49, Part of Section XII. Notwithstanding anything contained in any Act passed in the session Power to form holden in the seventh and eighth years of the reign of her present Majesty, tanMng part- chapter one hundred and thirteen, and intituled " An Act to regulate Joint p|™^^ Stock Banks in England," or in any other Act, it shall be lawful for any number of persons, not exceeding t?n, to carry on in partnership the business of banking, in the same manner and upon the same conditions in all respects as any company of not more than six persons could before the passing of this Act have carried on such business. 28 & 29 Vict. c. 86. An Act to amend the Law of Partnership. I5th July, 1865.] Whebeas it is expedient to amend the law relating to partnership : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows ; 1. The advance of money by way of loan to a person engaged or about to The advance of engage in any trade or undertaking upon a contract in writing with such money on con- person that the lender shall receive a rate of interest varying with the profits, *^°* to receive a or shall receive a share of the profits arising from carrying on such trade or ^^^ to°cor^tute undertaking, shall not, of itself, constitute the lender a partner with the the lender a person or the persons carrying on such trade or undertalring, or render him partner, responsible as such. 2. No contract for the remuneration of a servant or agent of any person The remunera- engaged in any trade or undertaking by a share of the profits of such trade tion of agents, or undertaking shall of itself render such servant or agent responsible as a ^f'lji^ ^I^ °* partner therein, nor give him the rights of a partner. make them 3. No person being the widow or child of the deceased partner of a trader, partners, and receiving by way of annuity a portion of the profits made by such trader Certain annui- in his business, shall, by reason only of such receipt, be deemed to be a tantsnottobe partner of or to be subject to any liabilities incurred by such trader. deemed paxt- 4. No person receiving by way of annuity or otherwise a portion of the ''^'^• profits of any business, in consideration of the sale by him of the goodwill of Receipt of profits such business, shall, by reason only of such receipt, be deemed to be a, of g^ie of good- 986 28 & 29 Vict. cap. 86. trill not to mal^e tile seller a partner. In case of bank- ruptcy, &c., lender not to rank -witli other creditors. Interpretation of "person," partner of or be subject to tlie liabilities of the person carrying on such business, . 5, In tbe event of any such trader as aforesaid being adjudged a bankrupt, or taking the benefit of any Act for the relief of insolvent debtors, or entering into an arrangement to pay his creditors less than twenty shillings in the pound, or dying in insolvent circumstances, the lender of any such loan as aforesaid shall not be entitled to recover any portion of his principal, or of the profits or interest payable in respect of such loan, nor shall any such vendor of a goodvrill as aforesaid be entitled to recover any such profits as aforesaid until the claims of the other creditors of the said trader for valuable consideration in money or money's worth have been satisfied, 6, In the construction of this Act the word "person" shall include a partnership firm, a joint stock company, and a corporation. Contracts for sale, &c. of shares to be void iinless the numbers by which such shares are dis- tinguished are set forth in contract. shareholders may see lists. Extent of Act limited. 30 Vict. o. 29. An Act to amend the Law in respect of the Sale and Purchase of Shares in Joint Stock Banking Gompanies. [llth June, 1867.] WHEBEAfl it is expedient to make provision for the prevention of contracts for the sale and purchase of shares and stock in Joint Stock Banking Companies of which the sellers are not possessed or over which they have no control : May it therefore please your Majesty that it may be enacted'; and be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in. this present Parliament assembled, and by the authority of the same : 1, That all contracts, agreements, and tokens of sale and purchase which shall, from and after the first day of July, one thousand eight hundred and sixty-seven, be made or entered into for the sale or transfer, or purporting to be for the sale or transfer, of any share or shares, or of any stock or other interest, in any Joint Stock Banking Company in the United Kingdom of Great Britain and Ireland constituted under or regulated by the provisions of any Act of Parliament, Royal Charter, or letters patent, issuing shares or stock transferable by any deed or written instrument, shall be null and void to all intents and purposes whatsoever, unless such contract, agreement, or other token shall set forth and designate in writing such shares, stock, or interest by the respective numbers by which the same are distinguished at the making of such contract, agreement, or token on the register or books of such banMng company as aforesaid, or where there is no such register of shares or stock by distinguishing numbers, then unless such contract, agreement, or other token shall set forth the person or persons in whose name or names such shares, stock, or interest shall at the time of making such contract stand as the registered proprietor thereof in the books of such banking company ; and every person, whether principal, broker, or agent, who shall wilfully insert in any such contract, agreement, or other token any false entry of such numbers, or any name or names other than that of the person or persons in whose name such shares, stock, or interest shall stand as aforesaid, shall be guilty of a misdemeanor, and be punished accordingly, and, if in Scotland, shall be guilty of an offence punishable by fine or imprisonment, 2, Joint Stock Banking Companies shall be bound to show their list of shareholders to any registered shareholder during business hours, from ten of the clock to four of the clock, 3. This Act shall not extend to shares or stock in the Bank of England or the Bank of Ireland. Joint Stock Companies Amendment. 987 30 & 31 Vict. o. 131. An Act to amend The Companies Ad, 1862. [20th August, 1867.] Be it enacted ty the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Oommona, in this present Parliament assembled, and by the authority of the same, as follows : Freliininart/. -Prtlimiaary, 1. This Act may be cited for all purposes as " The Companies Act, 1867." Short title. 2. The Companies Act, 1862, is hereinafter referred to as " The Principal -^^^ ^^ '^"" Act ;" and theprinoipalAot and this Act are hereinafter distinguished as and ^th25°&2T maybe cited for all purposes as " The Companies Acts, 1862 and 1867 ;" and viot. o. 89. this Act shall, so far as is consistent with the tenor thereof, be construed as one with the principal Act ; and the expression ' ' this Act ' ' in the principal Act, and any expression referring to the principal Act which occurs in any Act or other document, shall be construed to mean the principal Act as amended by this Act. 3. This Act shall come into force on the first day of September one thou- Commencement sand eight hundred and sixty-seven, which date is hereinafter referred to as <•* •'^'^t' the commencement of this Act. Vnlimited lAaUUty of Directors. 4. Where after the commencement of this Act a company is formed as a limited company under the principal Act, the liability of the directors or managers of such company, or the managing director, may, if so provided by the memorandum of association, be unlimited. 6. The following modifications shall be made in the thirty-eighth section of the principal Act, with respect to the contributions to be required in the event of the winding up of a limited company under the principal Act, from any director or manager whose liability is, in pursuance of this Act, un- limited ; (1.) Subject to the proTisions hereinafter contained, any such director or manager, whether past or present, shall, In addition to his liability (if any) to contribute as an ordinary member, be liable to contribute as if he were at the date of the commencement of such winding up a member of an unlimited company : (2.) No contribution required from any past director or manager who has ceased to hold such office for a period of one year or upwards prior to the commencement of the winding up shaU exceed the amount (if any) which he is liable to contribute as an ordinary member of the company : (3.) No contribution required from any past director or manager in respect of any debt or liability of the company contracted after the time at which he ceased to hold such office shall exceed the amount (if any) which he is liable to contribute as an ordinary member of the com- pany : (4.) Subject to the provisions contained in the regulations of the company no contribution required from any director or manager shall exceed the amount (if any) which he is liable to contribute as an ordinary member, unless the court deems it necessary to require such contri- bution in order to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of the winding up. 6. In the event of the winding up of any limited company, the court, if it think fit, may make to any director or manager of such company whose lia- bility is unlimited the same allowance by way of set-off as under the one hundred and first section of the principal Act it may make to a contributory where the company is not limited. 7. In any limited company in which, in pursuance of this Act, the liability of a director or manager is unlimited, the directors or managers of the com- pany (if any), and the member who proposes any person for election. or ap- Unlimited LiaHlity of Directors. Company may have directors with unlimited liability. Liability of director, past and present, where liability is unlimited. Director with unlimited lia^ bility may have set-off as under sect. 101 of 25 & 26 Viot. c. 89. Notice to be given to director on his election 988 30 & 31 Vict. CAP. ]31. UnUmited Liahility of Directors. that liis liability ■will be un- limited. Existing^ limited company may, by special reso- lution, make liability of directors un- limited. pointmeut to such office, shall add to such proposal a statement that the liability of the person holding such office will be unlimited, and the promoters, directors, managers, and secretary (if any) of such company, or one of them, shall, before such person accepts such office or acts therein, give him notice in writing that his liability will be unlimited. If any director, manager, or proposer make default in adding such state- ment, or if any promoter, director, manager, or secretary make default in giving such notice, he shall be liable to a penalty not exceeding one hundred pounds, and shall also be liable for any damage which the person so elected or appointed may sustain from such default, but the liability of the person elected or appointed shall not be aflfected by such default. 8. Any limited company under the principal Act, whether formed before or after the commencement of this Act, may, by a special resolution [a), if authorized so to do by its regulations, as originally framed or as altered by special resolution, feom time to time modify the conditions contained in its memorandum of association so far as to render unlimited the liability of its directors or managers, or of the managing director ; and such special reso- lution shall bo of the same validity as if it had been originally contained in the memorandum of association, and a copy thereof shall be embodied in or annexed to every copy of the memorandum of association which is issued after the passing of the resolution, and any default in this respect shaH be deemed to be a default in complying with the provisions of the fifty-fourth section of the principal Act, and shall be punished accordingly. Seduction of Capital and iShares. Power to com- pany to reduce capital. Company to add "and reduced" to its name for a limited period. Company to ap- ^ly to tbe court lor an order coniirming re- duction. Deiinition of tbe court. Creditors may object to reduc- tion, and list of objecting credi- tors to be settled by tbe court. Beduction of Capital (5) and Shares. 9. Any company limited by shares may, by special resolution, so far modify the conditions contained in its memorandum of association, if authorized so to do by its regulations as originally framed or as altered by special resolution, as to reduce its capital (4) ; but no such resolution for reducing the capital of any company shall come into operation until an order of the court is registered by the Registrar of Joint Stock Companies, as is hereinafter men- tioned (c) . 10. The company shall, after the date of the passing of any special reso- lution for reducing its capital add to its name, until such date as the court may fix, the words " and reduced" ((^, as the last words in its name, and those words shall, until such date, be deemed to be part of the name of the company within the meaning of the principal Act. H. A company which has passed a special resolution for reducing its capital, may apply to the court by petition for an order confirming the reduc- tion, and on the hearing of the petition the court, if satisfied that with respect to every creditor of the company who under the provisions of this Act is entitled to object to the reduction, either his consent to the reduction has been obtained, or his debt or claim has been discharged or has determined, or has been secured as hereinafter provided (^), may make an order confirming the reduction on such terms and subject to such conditions as it deems fit. 18. The expression "the court," shall in this Act mean the court which has jurisdiction to make an order for winding up the petitioning company, and the eighty-first and eighty-third sections of the principal Act shall be con- strued as if the term " winding-up " in those sections included proceedings under this Act, and the court, may in any proceedings under this Act make such order as to costs as it deems tit. 13. Where a company proposes to reduce its capital, every creditor of the company who at the date fixed by the court is entitled to any debt or claim which, if that date of the commencement of the winding up of the company would be admissible in proof against the company (/) shall be entitled to object to the proposed reduction, and to be entered in the list of creditors who are so entitled to object. The court shall settle a list of such creditors, and for that purpose shaU (o) 25 & 26 Vict. c. 89, s. 51, supra, lb) See 40 & 41 Vict. c. 26, s. 3, infra. (c) Infra, B. 16. [d] But see 40 & 41 Vict. c. 26, B. 4 (2), infra. (e) Infra, s. 14. (/) 25 & 26 Vict. 0. 89, s. 168, sapra. Joint Stock Companies Amendment. 989 ascertain as far aa possible without requiring an application from any creditor seduction of the name of such creditors and the nature and amount of their debts or claims, Capital and and may publish notices fixing a certain day or days within which creditors Shares. of the company who are not entered on the list are to claim to be so entered or to be excluded from the right of objecting to the proposed reduction. 14. Where a creditor whose name is entered on the Ust of creditors, and Court may dis- whose debt or claim is not discharged or determined, does not consent to the vense with con- propcsed reduction, the court may (if it think fit) dispense with such consent "ml^^Si^^"^ on the company securing the payment of the debt or claim of such creditor being given for by setting apart and appropriating in such manner as the court may direct, Ws debt. a sum of such amount as is hereinafter mentioned : (that is to say,) (1.) If the full amount of the debt or claim of the creditor is admitted by the company, or, though not admitted, is such as the company are . willing to set apart and appropriate, then the full amount of the debt or claim shall be set apart and appropriated. (2.) If the fuU amount of the debt or claim of the creditor is not admitted by the company, and is not such as the company are willing to set apart and appropriate, or if the amount is contingent or not ascer- tained, then the court may, if it think fit, inquire into and adjudicate upon the validity of such debt or claim, and the amount for which the company may be liable in respect thereof, in the same manner as if the company were being wound up by the court, and the amount fixed by the court on such inquiry and adjudication shall be set apart and appropriated. 16. The Registrar of Joint Stock Companies, upon the production to him Order and of an order of the court confirming the reduction of the capital of a company, minute to bo and the delivery to him of a copy of the order and of a minute (approved ''«gi8t«r«own and Treasury Solicitor for Ireland, in such manner and on such terms as to extension of time and otherwise as to the court shall seem fit, and that such service shall be deemed good and suffi- Merchant Shipping Act, 1876. 1015 oient Bcrvioe of such summons or writ upon the Secretary of the Board of Trade. 11. Where a complaint is made to the Board of Trade or a detaining officer Power to require that a British ship is unsafe, the Board or officer may, if they or he tlunk fit, 'rom compMn- require the complainant to give security to the satisfaction of the Board for ™gt|™"" the costs and compensation which he may hecome liable to pay as hereinafter mentioned. Provided that where the complaint is made by one fourth, being not less than three, of the seamen belonging to the ship, and is not in the opinion of the Board or officer frivolous or vexatious, such security shall not be required, and the Board or officer shall, if the complaint is made in sufficient time before the sailing of the ship, take proper steps for ascertaining whether the ship ought to be detained under this Act. Where a ship is detained in consequence of any complaint, and the circum- stances are such that the Board of Trade are liable under this Act to pay to the owner of the ship any costs or compensation, the complainant shall be liable to pay to the Board of Trade aU such costs and compensation as the Board incur or are liable to pay in respect of the detention and survey of the ship. 12. (1.) A detaining officer shall have for the purpose of his duties under Supijlemental this Act the same powers as an inspector appointed by the Board §etmtion"(^ of Trade under the Merchant Shipping Act, 1854. ship. (2.) An order for the detention of a ship, provisional or final, and an order varying the same, shall be served as soon as may be on the master of the ship. (3.) When a ship has been detained under this Act she shall not be released by reason of her British register being subsequently closed. (4.) For tho purposes of a sui'vey of a ship under this Act any person authorized to make the same may go on board the ship and inspect the same and every part thereof, and the machinery, equipments, and cargo, and may require the unloading or removal of any cargo, ballast, or tackle. (5.) The provisions of the Merchant Shipping Act, 1854, with respect to persons who wilfully impede an inspector, or disobey a requisition or order of an inspector, shall apply as if those provisions were herein enacted, with the substitution for the inspector of any judge, assessor, officer, or surveyor who under this Act has the same powers as an inspector or has authority to survey a ship. Foreign Ships, Ove^-loading. ] 3. Where a foreign ship has taken on board all or any part of her cargo Application to at a port in the United Kingdom, and is whilst at that port imsaf e by reason foreign ships of of overloading or improper loading, the provisions of this Act with respect to §^^^1°^ "* " the detention of ships shall apply to that foreign ship as if she were a British ship, with the following modifications : (1.) A copy of the order for the provisional detention of the ship shall be forliiwith served on the consular officer for the State to which the ship belongs at or nearest to the place where the ship is detained : (2.) Where a ship has been provisionally detained, the consular officer, on the request of the owner or master of the ship, may require that the person appointed by the Board of Trade to survey the ship shall be accompanied by such person as the consular officer may select, and in such case, if the surveyor and such person agree, the Board of Trade shall cause the ship to be detained or released accordingly, but if they difier, the Board of Trade may act as if the requisition had not been made, and the owner and master shall have the appeal to the court of survey touching the report of the surveyor which is before provided by this Act ; and (3.) Where tie owner or master of the ship appeals to the court of survey, the consular officer, on the request of such owner or master, may appoint any competent person who shall be assessor in such case in lieu of the assessor who, if the ship were a British ship, would be appointed otherwise than by the Board of Trade. In this section Qie expression "consular officer" means any consul- 1016 39 & 40 Vict. cap. 80. general, viee-oonsul, consular-agent, or other officer recognized by a Secre- tary of State, as a consular officer of a foreign state. Appeal on Refusal of certain Certificates to Ships. Appeal on 14, Whereas by section three hundred and nine of the Merchant Shipping Mfusalof oer- ^^^^ 1854, and enactments amending the same, the owner of a passenger vinde?MeiSant steamer as defined in that Act (s) is required to cause the same to be surveyed Shipping and by a shipwright surveyoip and an engineer surveyor, and those surveyors are Paasengers Acts, required to give declarations of oertaia particulars with respect to the sufficiency or conformity with the Act of the ship and equipments, and to the limits beyond which the ship is not fit to ply, and to the number of passengers which the ship is fit to carry, and of other particulars in the said section mentioned, and the Board of Trade, under section three hundred and twelve of the same Act, issue a certificate upon such declarations, and the passenger steamer cannot lawfully proceed to sea without obtaining such certificate ; And whereas under sections eleven and fifty of the Passengers Act, 1855, and the enactments amending the same, a passenger ship within the meaning of those sections (in this Act referred to as an emigrant ship) cannot lawfully proceed to sea without a certificate of clearance from an emigration officer, or other officer in those sections mentioned, showing that all the requirements of the said sections and enactments have been comiplied with, and that the ship is in the officer's opinion seaworthy, and that the passengers and crew are in a fit state to proceed to sea, and otherwise as therein mentioned ; And whereas by section thirty of the Merchant Shipping Act Amendment Act, 1862, provision is made for preventing a ship from proceeding to sea in certain cases without a certificate from a surveyor or person appointed by the Board of Trade to the effect that the ship is properly provided with lights, and with the means of making fog signals ; And whereas it is expedient to give in the said cases such appeal as hereinafter mentioned : Be it therefore enacted that — If a shipowner feels aggrieved, (1.) by a declaration of a shipwright surveyor or an engineer surveyor respecting a passenger steamer under the above-recited enactments, or by the refusal of a surveyor to give the said declaration ; or, (2.) by the refusal of a certificate of cleaTanoe for an emigrant ship under the above-recited enactments ; or (3.) by the refusal of a certificate as to lights or fog signals under the above-recited enactment, the owner may appeal in the prescribed manner to the court of survey for the port or district where the ship for the time being is. On such appeal the judge of the court of survey shall report to the Board of Trade on the question raised by the appeal, and the Board of Trade, when satisfied that the requirements of the report and the other provisions of the said enactments have been complied with, may — (1.) In the case of a passenger steamer give their certificate imder section three hundred and twelve of the Merchant Shipping Act, 1854, and (2.) In the case of an emigrant ship give, or direct the emigration or other officer to give, a certificate of clearance under iie above- mentioned enactments, and (3.) In the case of a refusal of a certificate as to lights or fog signals give or direct a surveyor or other person appointed by them to give a certificate under section thirty of the Merchant Shipping Act Amendment Act, 1862. Subject to any order made bj^ the judge of the court of survey, the costs of and incidental to an appeal under this section shall follow the event. Subject as aforesaid, the provisions of this Act with respect to the court of survey and appeals thereto, so far as consistent with the tenour thereof, shaU apply to the court of survey when acting under this section, and to appeals under this section. 'Wbere the survey of a ship is made for the purpose of a declaration or certificate under the above-recited enactment, the person appointed to make («) Sect. 303. Merchant Shipping Act, 1876. 1017 the surrey shall, if so required by the owner, be aocompanied on the survey by some person appointed by the owner, and in such case, if the said two persons ag:ree, there shaU be no appeal to the court of survey in pursuance of this section. Scientific Referees. IS. If the Board of Trade are of opinion that an appeal under this Act Iteference in involves a question of construction or design or -ot soieutiiic difficulty or ^'^''H:^ "^^^ ^ important principle, they may refer the matter to such one or more out of a ^^^nsf Hst of scientific referees from time to time approved by a Secretary of State, as may appear to possess the special qualifications necessary for the particular case, and may be selected by agreement between the Board of Trade and the appellant, or in default of any such agreement by a Secretary of State, and thereupon the appeal shall be determined by the referee or referees, instead of by the court of survey. The Board of Trade, if the appellant in any appeal so require aid give security to the satisfaction of the Board to pay the costs of and incidental to the reference, shall refer that appeal to a referee or referees so selected as aforesaid. The referee or referees shaU have the same powers as a judge of the court of survey. Fassenger Steamers and JSmigrant Ships. 18. Any steamship may carry passengers not exceeding twelve in number Exemption of although she has not been surveyed by the Board of Trade as a passenger oortain steamers steamer, and does not carry a Board of Trade certificate as provided by the oe^oatra?^™ Merchant Shipping Act, 1854, with respect to passenger steamers. 17. Where the legislature of any British possession provides for the survey Colonial certifl- of and grant of certificates for passenger steamers, and the Board of Trade oates for passen- roport to her Majesty that they are satisfied that the certificates are to the ^er steamers, like effect, and are granted after a like survey, and in such manner as to be equally efficient with the certificates granted for the same purpose in the United Kingdom under the Acts relating to merchant shipping, it shall be lawful to her Majesty by Order in Council — (1.) To declare that the said certificates shall be of the same force as if they had been granted under the said Acts ; and (2.) To declare that aU or any of the provisions of the said Acts which relate to certificates granted for passenger steamers under those Acts shall, either without modification or with such modifications as to her Majesty may seem necessary, apply to the certificates referred to in the Order ; and (3.) To impose such oojiditions and to make such regulations with respect to the said certificates, and to the use, delivery, and cancellation thereof, as to her Majesty may seem fit, and to impose penalties not exceedig fifty pounds for the breach of such conditions and regu- lations. 18. In every case where a passenger certificate has been granted to any Provision steamer by the Board of Trade under the provisions of the Merchant Ship- against double ping Act, 18S4, and remain still in force, it shaU not be requisite for the p^eSgw"^'^ ° purposes of the employment of such steamer under the Passengers Act that steamers and she shall be again surveyed in her huU and machinery in order to qualify emigrant ships, her for service under the Passengers Act, 1855, and me Acts amending the same ; but for the purposes of employment under those Acts suoh Board of Trade certificate diall be deemed to satisfy the requirements of the Pas- sengers Acts with respect to such survey, and any further survey of the huU and machinery shall be dispensed with, and so long as a steamship is an emigrant ship that is a passenger ship within the meaning of the Passengers Act, 1865, and the Acts amending the same, and the provisions contained in the said Passengers Acts as to the survey of her hull, machinery, and equip- ments have been complied with, she shall not be subject to the provisions of the Merchant Shipping Act, 1884, with respect to the survey of and certifi- cate for passenger steamers, or to the enactments amending the same. 19. Where a foreign ship is a passenger steamer subject to the Merchant Provision as to Shipping Act, 1854, and the Acts amending the same, or an emigrant ship ^^°£g. subject to the Passengers Act, 1856, and the Acts amending the same, and 1018 39 &40 VxoT. CAP. 80. senger steamer or emigrant ship. PoTver to modify Passengers Acts as to food, space, and ac- commodation in emigrant ships. Provision of signals of distress, inex- tinguishable lights, and life buoys in pas- senger steamers and emigrant ships. the Board of Trade are satisfied, by the production of a foreign certificate of survey attested by a British consular officer at the port of survey, that such ship has been ofiieially surveyed at a foreign port, and are satisfied that the requirements of the said Acts, or any of them, are proved by such survey to have been substantially complied -with, the Board may, if they think fit, dispense with any further survey of the ship in respect of the requirements so complied with, and give or direct one of their ofBoers to give a certificate, which shall have the same effect as if given upon survey under the said Acts or any of them : Provided that her Majesty may by Order in Council direct that this section shall not apply in the case of an official survey at any foreign port at which it appears to her Majesty that corresponding provii sions are not extended to British ships. 20. It shall be lawful for tiie Board of Trade, if satisfied that the food, space, accommodation, or any other particular or thing provided in an emigrant ship for any class of passengers is superior to the food, space, accoromodation, or other particular or thing required by the Passengers Act, 1855, and the Acts amending the same, to exempt such ship from any of the requirements of those Acts with respect to food, space, or accommodation, or otherparticnlar or thing, in such manner and upon such conditions as the Board of Trade may thmk fit. . 21. Every sea-going passenger steamer and every emigrant ship shall be provided to the satisfaction of the Board of Trade — (1.) With means for making the signals of distress at night specified in the First Schedule to the Merchant Shipping Act, 1873, or in any rules substituted tiherefor, including means of making flames on the ship which are inextinguishable in water, or such other means of making signals of distress as the Board of Trade may previously approve ; and (2.) With a proper supply of lights inextinguishable in water and fitted for attecninent to lite buoys. If any such steamer or ship goes to sea from any port of the United King- dom without being so provided as required by this section, for each default in any of the above requisites tie owner shall, if he appears to be in fault, incur a penalty not exceeding one hundred pounds, and the master shall, if he appears to be in fault, incur a penalty not exceeding fifty pounds. Grain Cargoes. 32. [Repealed by Merchant Shipping (Carriage of Grrain) Act, 1880, s. U.] Space occupied by deck cargo to be liable to dues Penalty for carrying deck- loads of timber in Tvinter. Deck Cargoes. 23. If any ship, British or foreign, other than home trade ships as defined by the Merchant Shipping Act, 1854, carries as deck cargo, that is to say, ia any uncovered space upon deck, or in any covered space not included in the cubical contents forming the ship's registered tonnage, timber, stores, or other goods, all dues payable on the ship's tonnage shall be payable as it there were added to the ship's registered tonnage the tonnage of the space occupied by such goods at the time at which such dues become payable. The space so occupied shall be.deemed to be the space limited by the area occupied by the goods and by straight lines inclosing a rectangular space sufficient to include the goods. The tonnage of such space shall be ascertained by an officer of the Board of Trade or of Customs, in manner directed by sub-section four of section twenty-one of the Merchant Shipping Act, 1 864, and when so ascertained shall be entered by him in the ship's official log-book, and also in a memorandum which he shall deliver to the master, and the master shall, when the said dues are demanded, produce such memorandum in like manner as if it were the certificate of registry, or, in the case of a foreign ship, the document equi- valent to a certificate of registry, and in default shall be liable to the same penalty as if he had failed to produce the said certificate or document. 24. After the first day of November one thousand eight hundred and seventy-six, if a ship, British or foreign, arrives between the last day of October and the sixteenth day of April in any year at any port in the United Kingdom fromany port out of the United Kingdom, carrying as deck cargo; that is to say, in any uncovered space upon deokj or in any covered space not Mehchant Shipping Act, 1876. 1019 inoluded in the cubical contents forming the ship's registered tonnage, any- wood goods coming within the following descriptions ; (that is to say,) (a) Any square, round, waney, or other timber, or any pitch, pine, maho- gany, oak, teak, or other heavy wood goods whatever ; or (S) Any more than, five spare spars or store spars, whether or not made, dressed, and finally prepared for use ; or (c) Any deals, battens, or other light wood goods of any description to a height exceeding three feet above the deck ; the master of the ship, and also the owner, if he is privy to the offence, shall be liable to a penalty not exceeding five pounds for every hundred cubic feet of wood goods carried in contravention of this section, and such penalty may be recovered by action or on indictment or to an amount not exceeding one hundred pounds (whatever may be the maximum penalty recoverable) on summary conviction. Provided that a master or owner shall not be liable to any penalty under this section — (1.) In respect of any wood goods which the master has considered it necessary to place or keep on deck during the voyage on account of the springing of any leak, or of any other damage to the ship received or apprehended ; or (2.) If he proves mat the ship sailed from the port at which the wood goods were loaded as deck cargo at such time before the last day of October as allowed a sufficient interval according to the ordinary duration of the voyage for the ship to arrive before that day at the said port in the United Kingdom, but was prevented from so arriv- ing by stress of weather or circumstances beyond his control ; or (3.) If he proves that the ship saUed from the port at which the wood goods were loaded as deck cargo at such tune before the sixteenth day of April as allowed a reasonable interval according to the ordinary duration of the voyage for the ship to arrive after that day at the said port in the United Kingdom, and by reason of an excep- tionally favourable voyage arrived before that day. Provided further, that nothing in this section shall affect any ship not bound to any port in the United Kingdom which comes into any port of the United Kingdom under stress of weather, or for repairs, or for any other purpose than the delivery of her cargo. Deck and Load Lines. 26. Every British ship (except ships under eighty tons register employed Y^^(^^ °' solely in the coasting trade, ships employed solely in fishing, and pleasure "^''"'™^- yachts) shall be permanently and conspicuously marked with lines of not less than twelve inches in length and one inch in breadth, painted longitudinally on each side amidships, or as near thereto as is practicable, and indicating theposition of each deck which is above water. The upper edge of each of these lines shall be level with the upper side of the deck plank next the waterway at the place of marking. The lines shall be white or yellow on adark ground, or black on a Kght ground. 26. With respect to the marking of a load-line on British ships the Marking of following provisions shaU have effect : load-line on (1.) The owner of every British ship (except ships under eighty tons nritiS"^™^ register employed solely in the coasting trade, ships employed solely ^' in fishing, and pleasure yachts) shall, before entering his ship out- wards from any port in the United Kingdom upon any voyage for which he is required so to enter her, or, if that is not practicable, as soon after as may be, mark upon each of her sides amidships, or as near thereto as practicable, in white or yellow on a dark ground, or in black on a light ground, a circular disc twelve inches in diameter, with a horizontal line eighteen inches in length drawn through its centre : (2.) The centre of this disc shall indicate the maximum load-line in salt water to which the owner intends to load the ship for that voyage : (3.) He shall also, upon so entering her, insert in the form of entry delivered to the collector or other principal officer of Customs a statement in writing of the distance in feet and inches between the centre of this disc and the upper edge of each of the lines indicating the position of the ship's deck which is above that centre : 1020 39 & 40 Vict. cap. 80. Marking of load-line in case of coasting (4.) If default is made in delivering this statement in the case of any ship, any officer of Customs may refuse to enter the ship outwards : (5.) The master of the ship shall enter a copy of this statement in the agreement with the crew before it is signed by any member of the crew, and no superintendent of any meroantUe marine office shall proceed with the engagement of the crew until this entry is made : (6.) The master of the ship ^all also enter a copy of this statement in the official log-book : (7.) When a ship has been marked as by this section required, she shall be kept so marked until her next return to a port of discharge in the United Kingdom. 27. With respect to the marking of a load-line on British ships employed in the coasting trade, the following provisions shall have effect : (1.) The owner of every British ship employed in the coasting trade on the coasts of the United Kingdom (except ships under eighty tons register employed solely in that trade) shall, before proceeding to sea from any port, mark upon each of her sides amidships, or as near thereto as is practicable, in white or yellow on a dark ground or in black on a light ground, a circular disc twelve inches in diameter, with a horizontal line eighteen inches in length drawn through its centre : (2.) The centre of this disc shall indicate the maximum load-line in salt water to which the owner intends to load the ship, until notice is given of an alteration : (3.) He shall also once in every twelve months immediately before the ship proceeds to sea, send or deliver to the ooUeotor or other principal officer of Customs of the port of registry of the ship a statement in writing of the distance in feet and inches between the centre of the disc and the upper edge of each of the lines indi- cating the position of the ship's decks which is above that centre : (4.) The owner, before the ship proceeds to sea after any renewal or alteration of the disc shall send or deliver to the collector or other principal officer of Customs of the port of registry of the ship notice in writing of such renewal or alteration, together with such statement in writing as before mentioned of lie distance between the centre of the disc and the upper edge of each of the deoklines : (5.) If default is made in sending or delivering any notice or statement required by this section to be sent or delivered, the owner shall be liable to a penalty not exceeding one hundred pounds : (6.) When a ship has been marked as by this section required, she shall be kept so marked untU notice is given of an alteration. 28. Any owner or master of a Brlti£ ship who neglects to cause his ship to be marked as by this Act required, or to keep her so marked, or who sMns" '"'^^ "" allows the ship to be so loaded as to submerge in salt water the centre of the disc, and any person who conceals, removes, alters, defaces, or obliterates, or suflfers any person under his control to conceal, remove, alter, deface, or obliterate, any of the said marks, except in the event of the particulars thereby denoted being lawfully altered, or except for the purpose of escaping . capture by an enemy, shall for each offence incur a penalty not exceeding one hundred pounds. If any of the marks required by this Act is in any respect inaccurate, so as to be likely to mislead, the owner of the ship shall incur a, penalty not exceeding one hundred pounds. Penalty for offences in rela- ships. Appointment, duties, and powers of wreck commissioners for investigating shipping casual- Investigations into Shipping Casualties. 29. For the purpose of rendering investigations into shipping casualties more speedy and effectual it shall be lawful for the Lord High Chancellor of Great Britain to appoint from time to time some fit person or persons to be a wreck commissioner or wreck commissioners for the United Kingdom, so that there shall not be more than three such commissioners at any one time, and to remove any such wreck commissioner ; and in case it shall become necessary to appoint a wreck commissioner in Ireland the Lord Chancellor of Ireland shall have the appointment and the power of removal of such wreck commissioner. It shall be the duty of a wreck oommiesioner, at the request of the Board Merchant Shipping Act, 1876. 1021 of Trade, to hold any formal investigation into a loss, abandonment, damage, or casualty (in this Act called a diipping casualty) (<) under the Eightii Part of the Merchant Shipping Act, 1854, and for that purpose he shall have the same jurisdiction and powers as are therehy conferred on two justices, and all thfe provisions of the Merchant Shipping Acts, 1854 to 1876, with respect to investigations conducted under the Eighth Part of the Merchant Shipping Act, 1854, shall apply to investigations held by a wreck commissioner (m). SO. The wreck commissioner, justices, or other authority holding a formal Assessors and investigation into a shipping casualty shall hold the same with the assistance rules of proce- of an assessor or assessors of nautical engineering or other special skill or know- ^^SgaSms ledge,tobeappointed[by the commissioner, justices, orauthority] (i>) out of a list into shipping of persons for the time being approved for the purpose by a Secretary of State, casualties. The commissioner, justices, or authority, when of opinion that the investigation is likely to involve the cancellation or suspension of the certificate of a master or mate, shall, where practicable, appoint a person having experience in the merchant service to be one of the assessors. Each assessor shall either sign the report made on the investigation, or report to the Board of Trade his reasons for his dissent therefrom. The Lord High Chancellor of Great Britain may from time to time, with the consent of the Treasury so far as relates to fees, make, and when made revoke, alter, and add to general rules for carrying into effect the enactments relating to formal investigations into shipping casualties, and in particular with respect to the summoning of assessors, the procedure, the parties, the persons allowed to appear, the notice to such parties and persons or to persons affected, and the amount and application of fees. AU such rules, while in force, shall have effect as if enacted in this Act. Every formal investigation into a shipping casualty shall be conducted in such manner that it a charge is made {«) against any person that person shall have an opportunity of making a defence {y). 31. A wreck commissioner may, at the request of the Board of Trade, by power for wreck himself, or by some deputy approved by the Board of Trade, institute the commissioners same examination as a receiver of wreck under section four hundred and ^^'^j^Ji^n forty-eight of the Merchant Shipping Act, 1854, and shall for that purpose .^th respect to have the powers by that section conferred on a receiver of wreck. ships in distress 32. In the foUowing cases :— ^5.^p"io^ ^* (1.) Whenever any ship on or near the coasts of the United Kingdom or ^ ^ ' any British ship elsewhere has been stranded or damaged, and any powei-tohold witness is found at any place in the United Kingdom ; or inquiries or (2 .) Whenever a British ship has been lost or is supposed to have been lost, formal investi- and any evidence can be obtained in the United Kingdom as to the ^"al^^^ circumstances under which she proceeded to sea or was last heard of, n^iggjug gjiipg. the Board of Trade (without prejudice to any other powers) may, if they think fit, cause an inquiry to be made or formal investigation to be held, and all the provisions of the Merchant Shipping Acts, 1854 to 1876, shall apply to any such inquiry or investigation as if it had been made or held under the Eighth Part of the Merchant Shipping Act, 1854. 83. A formal investigation into a shipping casualty may be held at any piace of investi- phice appointed in that behalf by the Board of Trade, and all enactments gation. relating to the authority holding the investigation shaU, for the purpose of the investigation, have effect as if the place so appointed were a place appointed for the exercise of the ordinary jurisdiction of that authority. Miscellaneous. 34. Where under the Merchant Shipping Acts, 1854 to 1876, or any of Enforcing de- ihem, a ship is authorized or ordered to be detained, any commissioned officer tention oi ship, on full pay in the naval or military service of her Majesty, or any officer of the Board of Trade or Customs, or any British consular officer may detain the ship, and if the ship after such detention or after service on the master of any notice of or order for such detention proceeds to sea before it is released by competent authority, the master of the ship, and also the owner, and any (t) Mx parte Story, 3 Q. B. D. 166. 1883. (w) Sects. 432—438. («) Ex parte Minto, 35 L. T. 808. (e) The words within brackets re- [y) As to rehearing, see 42 & 43 peaied by Statute Law Kevision Act, Vict.' c. 72. 1022 39 & 40 Vict. oaf. 80. Service of order on master, &c. Ship's maiiag:mg owner or manager to be registered. Power for her Majesty by Order in Council to apply certain provi- sions of Mei*- chant Shipping Acts to foreign ships. Provisions as to Order in Council. Pees, salaries, and costs. person 'who sends the ship to sea, if such owner or person he party or privy to the offence, shall forfeit and pay to her Majesty a penalty not exceeding one hundred pounds. Where a ship so proceeding to sea when on hoard thereof in the execution of his duty any ofBcer authorized to detain the ship, or any surveyor or^jfEcer of the Board of Trade or Customs, the ovfner and master of lie ship shall each be liable to pay all expenses of and incidental to the officer or surveyor being so taken to sea, and also a penalty not exceeding one hundred pounds, or, if the offence is not prosecuted in a summary manner, not exceeding ten pounds for every day until the officer or surveyor returns, or until such time as would enable him after leaving the ship to return to the port from which he is taken, and such expenses may be recovered in like manner as thepenalty. 36. Where any order, notice, statement, or document requires, for the purpose of any provision of this Act, to be served on the master of a ship, the same shall be served, where there is no master, and the ship is in the United Kingdom, on the managing owner of the ship, or if mere is no managing owner, on some agent of the owner residing in the United King- dom, or where no such agent is known or can be found, by affixing a copy thereof to the mast of the ship. Any such order, notice, statement, or document may be served by delivering a copy thereof personally to the person to be served, or by leaving the same at his last place of abode, or in the case of a master by leaving it for Tiim on board the ship with the person being or appearing to be in command or charge of such ship. Any person who obstructs the service of any order, notice, statement, or document on the master of a ship shall incur a penalty not exceeding ten pounds, and if the owner or master of the ship is party or privy to such obstruction he shall be guilty of a misdemeanor. 36. The name and address of the managing owner for the time being of every British ship registered at any port or place in the United Kingdom shall be registered at tbie custom-house of the ship's port of registry. When there is not a managing owner there shall be so registered the name of the ship's husband or other person to whom the management of the ship is intrusted by or on behalf of the owner ; and any person whose name is so registered shall, for the purposes of the Merchant Shipping Acts, 1854 to 1876, be under the same obligations, and subject to the same liabilities, as if he were the managing owner. If default is made in complying with this section the owner shall be liable, or if there be more owners tiian one each owner shall be liable in proportion to his interest in the ship, to a penalty not exceeding in the whole one hundred pounds each time the ship leaves any port in the United Kingdom. 87. Whenever it has been made to appear to her Majesty that the govern- ment of any foreign state is desirous that any of the provisions of the Merchant Shipping Acts, 1854 to 1876, or of any Act hereafter to be passed amending the same, shall apply to the ships of such state, her Majesty may by Order in Council declare that such of the said provisions as are in such order specified shall (subject to the limitations, if any, contained in the order) apply, and thereupon, so long as the order remains in force, such provisions shall apply (subject to the said limitations) to the ships of such state, and to the owners, masters, seamen, and apprentices of such ships, when not locally within the jurisdiction of such state, in the same manner in all respects as if such ships were British ships. 38. Where her Majesty has power under the Merchant Shipping Act, 1854, or any Act passed or hereafter to be passed amending the same, to make an Order in Council, it shall be lawful for her Majesty from time to time to make such Order in Council, and by Order in Council to revoke, alter, or add to any order so made. Every such Order in Council shall be published in the London Gazette, and shall be laid before both Houses of Parliament within one month after it is made, if Parliament be then sitting, or if not, within one month after the then next meeting of Parliament. Upon the pubfication of any such order in the London Gazette, the order shall, after the date of such publication, or any later date mentioned in the order, take effect as if it were enacted by Parliament. 39. [On and after the first day of January one thousand eight hundred and seventy- seven all fees payable in respect of the survey or measurement Merchant Shipping Act, 1876. 1023 of ships under the Merchant Shipping Acts, 1854 to 1876, or in respect of any services performed by any person employed under the authority of the Passengers Act, 1855, shall continue to be paid to the superintendent of a mercantile marine ofSce at such times and in such manner as the Board of Trade from time to time direct, but shall be paid into the receipt of her Majesty's Exchequer in such manner as the Treasury from time to time direct, and shall be carried to and form part of the consolidated fund of the United Kingdom. On and after the same day the salaries of all surveyors appointed imder the Merchant Shipping Acts, 1864 to 1876, and so much of the expenses con- nected with the survey and measurement of ships under those Acts, and of the salaries and expenses of persons employed under the Passengers Act, 1865, as has heretofore been paid out of the Mercantile Marine Fund, shall he paid out of moneys provided by Parliament, and the Treasury shall have the like control over such salaries and expenses as has heretofore been vested in the Board of Trade] [z). There may be paid out of moneys provided by Parliament, to any wreck commissioner, ^udge of a court of survey, assessor, registrar of a court of survey, detaining officer, scientific referee, and other officer or person appointed under this Act, such salary or remuneration (if any) as the Treasury from time to time direct. [There may be paid out of moneys provided by Parliament all costs and compensation payable by the Board of Trade in pursuance of tiiis Act] («). 40. For the purpose of punishment, jurisdiction, and legal proceedings an ^e-gj proceed- ofEence under this Act shall be deemed to be an offence under the Merchant ings in case of Shipping Act, 1854. offences. 41. In the application of this Act to Scotland, — Application of The provision with respect to a prosecution not being instituted except by Act to Scotland. or with the consent of the Board of Trade shall not apply. " Judge of a county court " shall be deemed to include a sheriff and sheriff substitute ; and ' ' Registrar of a county court " shall be deemed to include sheriff clerk ; and "A master of the Supreme Court of Judicature" shall mean the Queen's and Lord Treasurer's Eemembrancer. 42. In the application of this Act to Ireland, — Application of "Judge of a county court" shall be deemed to include chairman of a Act to Ireland. county and recorder of any borough ; " Registrar of a county court " shall be deemed to include the clerk of the peace or registrar or other person discharging the duties of registrar of the court, of the chairman of a county, or the recorder of a borough ; " Stipendiary magistrate" shall be deemed to include any of the justices of the peace in Dublin metropolis and any resident magistrate ; and "A master of the Supreme Court of Judicature" shall mean one of the masters of the superior courts of common law in Ireland. 48. In the application of this Act to the Isle of Man, — Application of " Judge of a county court " shall mean the water bailiff ; Act to Isle of " Stipendiary magistrate ' ' shall mean a high bailiff ; man.. "Registrar of a county court " shall mean a clerk to a deemster or a clerk to justices of the peace ; " A master of the Supreme Court of Judicature " shall mean the clerk of the rolls. 44. Nothing in this Act shall apply to any vessel employed exclusively in Saving for trading or going from place to place in any river or inland water of which ™atCT^ inland the whole or part is in any British possession ; and the provisions of this Act relating to deck cargo shall not apply to deck cargo carried by a ship while engaged in the coasting trade of any British possession. Bepeal. 46. [Repealed by Statute Law Revision Act, 1883.] SCHEDULE. [Repealed by Statute Law Revision Act, 1883.] (z) The words within brackets repealed by 46 & 46 Vict. c. 55. 1024 40 & 41 Vict. cap. 26. 30 & 31 Viet, e. 181. Short title. Construction of Act. 25 & 26 Vict. c. 89. 30 & 31 Vict. 0. 131. Construction of "capital" and powers to reduce capital con- tained in 30 & 31 Vict, c. 131. Application of provisions of 30&31Tiot. c. 131. 30 & 31 Vict. 0. 131. Power to reduce capital by the cancellation of unissued shares. Beception of certified copies of documents as legal evidence. 26 & 26Yict. C. 89. 40 & 41 Vict. cap. 26. An Act to Amend the OompanieB Acts of 1862 and 1867. I23rd July, 1811.-} WHEBEAa doubts have been entertained whether the power given by the Companies Act, 1867, to a company of reducing its capital extends to paid- up capital, and it is expedient to remove saoh doubts : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in in this present Parliament assembled, and by the authority of the same, aa follows : — 1. This Act may be cited for all purposes as the Companies Act, 1877. 2. This Act shall, so far as is consistent with the tenor thereof, be construed as one with the Companies Acts, 1862 and 1867, and the said Acts and this Act may be referred to as "The Companies Acts, 1862, 1867, and 1877." 3. The word " capital " as used in the Companies Act, 1867, shall include paid-up capital ; and the power to reduce capital conferred by that Act shall include a power to cancel any lost capital, or any capital unrepresented by available assets, or to pay off any capitetl which may be in excess of the wants of the company ; and paid-up capital may be reduced either with or without extinguishing or reducing the liability (if any) remaining on the shares of the company, and to the extent to which such liabili^ is not extinguished or reduced it shall be deemed to be preserved, notwithstanding anything contained in the Companies Act, 1867. 4. The provisions of the Companies Act, 1867, as amended by this Act, shall apply to any company reducing its capital in piirsuanoe of this Act and of the Companies Act, 1867, as amended by this Act : Provided that where the reduction of the capital of a company does not involve either the diminution of any liability in respect of unpaid capital or the payment to any shareholder of any paid-up capital, (1.) The creditors of the company diaU not, uiless the Court otherwise direct, be entitled to object or required to consent to the reduc- tion ; and (2.) It shall not be necessary, before the presentation of the petition for confirming the reduction, to add, and the Court may, if it thinks it expedient so to do, dispense altogether with the addition of the words "and reduced," as mentioned in the Companies Act, 1867. In any ease that the Court thinks fit so to do, it may require the company to publish in such manner as it thints,fit the reasons for the reduction of its capital, or such other information in regard to the reduction of its capital, as the Court may think expedient with a view to give proper information to the public in relation to the reduction of its capital by a company, and, if the Court thinks fit, the causes which led to such reduction. The minute required to be registered in the case of reduction of capital shall show, in addition to the other particulars required- by law^, the amount (if any) at the date of the registration of the minute proposed to be deemed to have been paid up on each share. 6. Any company limited by shares may so far modify the conditions contained in its memorandum of association, if authorized so to do by its regulations as originally framed or as altered by special resolution, as to reduce its capital by cancelling any shares which, at the date of the passing of such resolution, have not been taken or agreed to be taken by any person ; and the provisions of "The Companies Act, 1867," shall not apply to any reduction of capital made in pursuance of this section. 6. And whereas it is expedient to make provision for the reception as legal evidence of certificates of incorporation other than the original certifi- cates, and of certified copies of or extracts from any documents filed and registered under the Companies Acts, 1862 to 1877 : Be it enacted, that any certificate of the incfarporation of any company given by the registrar or by Bills of Sale Act, 1878. 1025 any asgistant-registrar for the time being shall be received in evidence as if 30 & 81 Vict, it were the original certificate ; and any copy of or extract from any of the Sk^J 41 y' t documents or part of the documents kept and registered at any of the offices 0. 28. " ' for the registration of joint stock companies in England, Scotland, or Ireland, if duly certified to be a true copy under the hand of the registrar or one of the assistant-registrars for the time being, and whom it sh^ not be necessary to prove to be the registrar or assistant-registrar shall, in all legal proceedings, civil or criminal, and in all oases whatsoever, be received in evidence as of equal validity with the original document. 41 & 42 ViOT. CAP. 31 (a). An Ad to consolidate and amend the Law for preventing Frauds upon Creditors by secret Bills of Sale of Personal Ghattels. [22nd July, 1878.] Wheebas it is expedient to consolidate and amend the law relating to bills of sale of personal chattels : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authori^ of the same, as follows : 1. This Act may be cited for all purposes as the Bills of Sale Act, 1878. Short title. 2. This Act shall come into operation on the first day of January one Commencement, thousand eight hundred and seventy-nine, which day is in this Act referred to as the commencement of this Act. 3. This Act shall apply to every bill of sale executed on or after the first Application day of January one thousand eight hundred and seventy-nine (whether the same be absolute, or subject or not subject to any trust) whereby the holder or grantee has power, either with or without notice, and either immediately or at any future time, to seize or take possession of any personal chattels comprised in or made subject to such bill of sale. 4. In this Act the following words and expressions shall have the Interpretation meanings in this section assigned to them respectively, unless there be of terms, something in the subject or context repugnant to such construction ; (that is to say,) The expression "bill of sale" shall include bills of sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipts for purchase-moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be fol- lowed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred, but shall not include the following documents ; that is to say, assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse- keepers certificates, warrants or orders for the dehvery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented : The expression " personal chattels " shall mean goods, furniture, and other articles capable of complete transfer by delivery, and (when separately assigned or charged) fixtures and growing crops, but shall not include chattel interests in real estate, nor fixtures (except trade machinery as hereinafter defined), when assigned together with a freehold or leasehold interest in any land or building to which they are affixed, nor growing crops when assigned together with any interest in the land on which they («) See, also, the Bills of Sale Amendment Act, infra, p. 1069. 1026 41 & 42 Vict. CAP. 31. Application of Act to trade ma^ineiy. Certain inetru- ments giving powers of distresB to be subject to tbis Act. Fixtures or gi'O'wing crops not to be deemed separately assigned wben the land passes by the same ^insti-ument. 2na. 3rd. grow, nor shares or interests in the stock, funds, or securities of any government, or in the capital or property of incorporated or joint stock companies, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the country ought not to be removed from any farm where the same are at tibie time of making or giving of such bill of sale : Personal chattels shall be deemed to be in the " apparent possession " of the person making or giving a biU of sale, so long as they remain or are in or upon any house, mill, warehouse, building, works, yard, laud, or other premises occupied by him, or are used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person : "Prescribed " means prescribed by rules made under the provisions of this Act. 5. From and after the commencement of this Act trade machinery shall, for the purposes of this Act, be deemed to be personal chattels, and any mode of disposition of trade machinery by the owner thereof which would be a bill of sale as to any other personal chattels shall be deemed to be a bill of sale within the meaning of Act. For the purposes of this Act — " Trade machinery " means the machinery used in or attached to any factory or workshop ; 1st. Exclusive of the fixed motive powers, such as the water-wheels and steam engines, and the steam-boilers, donkey engines, and other fixed appurtenances of the said motive-powers ; and Exclusive of the fixed power machinery, such as the shafts, wheels, drums, and their fixed appurtenances, which transmit the action of the motive-powers to the other machinery, fixed and loose ; and Exclusive of the pipes for steam, gas and water in the factory or workshop. The machinery or effects excluded by this section from the definition of trade machinery shall not be deemed to be personal chattels within the meaning of this Act. "Factory or workshop" means any premises on which any manual labour is exercised by way of trade, or for purposes of gain, in or incidental to the following purposes or any of them ; that is to say, (a) In or incidental to the making any article or part of an article; or (b) In or incidental to the altering, repairing, ornamenting, finishing, of any article ; or (c) In or incidental to the adapting for sale any article. 6. Every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given or agreed to be given by any person to any other person by way of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, within the .meaning of this Act, of any personal chattels which may be seized or taken under such power of distress. Provided, that nothing in this section shall extend to any mortgage of any estate or interest in any land, tenement, or hereditament which flie mort- gagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent. 7. No fixtures or growing crops shall be deemed, under this Act, to be separately assigned or charged by reason only that they are assigned by separate words, or that power is given to sever them from the land or build- ing to which they are affixed, or from the land on which they grow, without otherwise taking possession of or dealing with suoh land or building, or land, if by the same instrument any freehold or leasehold interest in the land or building to which suoh fixtures are affixed, or in the land on which suoh crops grow, is also conveyed or assigned to the same persons or person. The same rule of oonstiniction shall be applied to all deeds or instruments, including fixtures or growing crops, executed before the commencement of Bills of Sale Act, 1878. 1027 this Act and then subsiating and in force, in all questions arising under any bankruptcy, liquidation, assignment for the benefit of creditors, or execution of any process of any court, -which shall take place or be issued after the commencement of this Act. 8. Repealed by 46 & 46 Vict. c. 43.] 9. Where a subsequent bill of sale is executed within or on the expiration Avoidance of of seven days after the execution of a prior unregistered bill of sale, and certain duplicate comprises all or any part of the personal chattels comprised in such prior ^'^ °' ^^^■ bill of sale, then, if such subsequent bill of sale is given as a security for the same debt as is secured by the prior bill of sale, or for any part of such debt, it shall, to the extent to which it is a security for the same debt or part thereof, and so far as respects the personal chattels or part thereof com- prised in the prior biU, be absolutely void, unless it is proved to the satisfac- tion of the court having cognizance of the case that the subsequent bill of sale was bond fide given for the purpose of correcting some material error in the prior bill of sale, and not for the purpose of evading this Act. 10. A bill of sale shall be attested and registered under this Act in the Mode of regis- f oUowing manner : toring bills of (1.) [The execution of every bill of sale shall be attested by a solicitor of sale, the Supreme Court, and the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting solicitor (a) :] (2.) Such bill, with every schedule or inventory thereto annexed or therein referred to, and also a true copy of such biU and of every such schedule or inventory, and of every attestation of the execution of such bill of sale, together with an affidavit of the time of such bill of sale being made or given, and of its due execution and attes- tation, and a description of the residence and occupation of the person making or giving the same (or in case the same is made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process issued), and of every attesting witness to such bill of sale, shall be presented to and the said copy and affidavit shall be filed with the registrar within seven clear days after the making or giving of such bill of sale, in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed : (3.) If the bill of sale is made or given subject to any defeasance or con- dition, or declaration of trust not contained in the body thereof, such defeasance, condition, or declaration shall be deemed to be part of the bill, and shall be written on the same paper or parch- ment therewith before the registration, and shall be truly set forth in the copy filed under this Act therewith and as part thereof, other- wise the registration shall be void. In case two or more bills of sale are given, comprising in whole or in part any of the same chattels, they shall have priority in the order of the date of their registration respectively as regards such chattels. A transfer or assignment of a registered biU of sale need not be regis- tered. 11. The registration of a bill of sale, whether executed before or after Renewal of the commencement of this. Act, must be renewed once at least every five registration, years, and if a period of five years elapses from the registration or renewed registoation of a bUl of sale without a renewal or fiirther renewal (as the case may be), the registration shall become void. The renewal of a registration shall be effected by filing with the registrar an affidavit stating the date of the bill of sale and of the last registration thereof, and the names, residences, and occupations of the parties thereto as stated therein, and that the bill of sale is still a subsisting security. Every such affidavit may be in the form set forth in the Schedule (A.) to this Act annexed. A renewal of registration shall not become necessary by reason only of a transfer or assignment of a bill of sale. 12. The registrar shall keep a book (in this Act called " the register") for Form of register, the purposes of this Act, and shall, upon the filing of any bill of sale or copy (o) Repealed by 45 & 46 Vict. c. 43, s. 10. VOL. II. — S. 3 X 1028 41 & 42 Vict. cap. 31. The registrar. 36 &37Viot. 0.66. 38 & 39 Vict. 0. 7r. Bectiflcation of register. Entry of satis- faction. Copies may be taken, &c. Affidavits, Collection of fees Tinder 38 & 89 Vict. 0, 77, a. 26. under this Act, enter therein in the form set forth in the second schedule (B.) to this Act annexed, or in any other prescribed form, the name, residence, and occupation of the person by whom the'bUl was made or given (or in case the same was made or given by any person under or in the execution of pro- cess, then the name, residence, and occupation of the person against whom such process was issued, and also the name of the person or persons to whom or in whose favour the bill was given), and the other particulars shown in the said schedule or to be prescribed under this Act, and shall number all such bills registered in each year consecutively, according to the respective dates of their registration. Upon the registration of any afSdavit of renewal the like entry shall be made, with the addition of the date and number of the last previous entry relating to the same bill, and the bill of sale or copy originally filed shall be thereupon marked with the number aflixed to such affidavit of renewal. The registrar shall also keep an index of the names of the grantors of registered biUs of sale with reference to entries in the register of the bills of sale given by each such grantor. Such index shall be arranged in divisions correspondiug with the letters of the alphabet, so that all grantors whose surnames begin with the same letter (and no others) shall be comprised in one division, but the arrangement within each such division need not be strictly alphabetical. 13. The masters of the Supreme Court of Judicature attached to the Queen's Bench Division of the High Court of Justice, or such other officers as may for the time being be assigned for this purpose under the provisions of the Supreme Court of Judicature Acts, 1873 and 1875, shall be the regis- trar for the purposes of this Act, and any one of the said masters may perform all or any of the duties of the registrar. 14. Any judge of the High Court of Justice on being satisfied that the omission to register a bill of sale or an affidavit of renewal thereof within the time prescribed by this Act, or the omission or mis-statement of the name, residence, or occupation of any person, was accidental or due to inad- vertence, may in his discretion order such omission or mis-statement to be rectified by the insertion in the register of the true name, residence, or occu- pation, or by extending the time for such registration on such terms and con- ditions (if any) as to security, notice by advertisement or otherwise, or as to any other matter, as he thinks fit to direct. is. Subject to and in accordance with any rules to be made under and for the purposes of this Act, the registrar may order a memorandum of satisfac- tion to be written upon any registered copy of a bill of sale, upon the pre- scribed evidence being given that tte debt (fl any) for which such bill of sale was made or given has l>een satisfied or discharged. 16. Any person shall be entitled to have an office copy or extract of any registered biU of sale, and affidavit of execution filed therewith, or copy thereof, and of any affidavit filed therewith, if any, or registered affidavit of renewal, upon paying for the same at the like rate as for office copies of judgments of the High Court of Justice, and any copy of a registered biU of sale, and afSdavit purporting to be an office copy thereof, shaJl ia all courts and before aU arbitrators or other persons, be admitted as primS facie evidence thereof, and of the fact and date of registration as shpwn thereon. Any person shall be entitled at all reasonable times to search the register and every registered bill of sale, upon payment of one shilling for every copy of a biU of sale inspected ; such payment shall be made by a judicature stamp. 17. Every affidavit required by or for the purposes of this Act may be sworn before a master of any division of the High Court of Justice, or before any commissioner empowered to take affidavits in the Supreme Court of Judicature. Whoever wilfully makes or uses any false affidavit for the purposes of this Act shall be deemed guilty of wilful and corrupt perjury. 18. There shall be paid and received in common law stamps the following fees, viz. : On filing a bill of sale 2s. On filing the affidavit of execution of a bill of sale - 2s. On the affidavit used for the purpose of re-registering a bin of sale (to include the fee for filing) - - 5s. 19. Section twenty-six of the Supreme Court of Judicature Act, 1876, and any enactments for the time being in force amendiog or substituted for Bills of Sale Act, 1878. 1029 that section, shall apply to fees under this Act, and an order under that section may, if need be, be made in relation to such fees accordingly. 20. [Repealed by 45 & 46 Vict. o. 43.] 21. Bules for the purposes of this Act may be made and altered from time Eoles. to time by the like persons and in the like manner in which rules and regu- 36 & 37 Vict, lations may be made under and for the purposes of the Supreme Court of §g^&39 yjct. Judicature Acts, 1873 and 1875. c. 77. 22. When the time for registering a bill of sale expires on a Sunday, or Time for regis- other day on which the registrar's office is closed, the registration shall be tration. valid if made on the next following day on which the office is open. 23. From and after the commencement of this Act, the Bills of Sale Act, Eepeal of Acts. 1854, and the Bills of Sale Act, 1866, shall be repealed: Provided that i7&l8Viot. (except as is herein expressly mentioned with respect to construction and with respect to renewal of registration) nothing in this Act shall affect any bill of sale executed before the commencement of this Act, and as regards bills of sale so executed the Acts hereby repealed shall continue in force. Any renewal after the commencement of this Act of the registration of a bill of sale executed before the commencement of this Act, and registered under the Acts hereby repealed, shall be made under this Act in the same manner as the renewal of a registration made under this Act. 24. This Act shall not extend to Scotland or to Ireland. Extent of Act. .36. 29 & 30 Vict, c. 96. SCHEDULES. SCHEDULE A. IIA.B.} of do swear that a bill of sale, bearing date the day of 18 [insert the date of the hiW], and made between [insert the names and descriptions of the parties in the original bill of sale"], and which said bill of sale [m; and a copy of which said bill of sale, as the case may i«] was registered on the day of 13 [insert date of registration'], is still a subsisting security. Sworn, ^c. SCHEDULE B. Batisfac- No. By whom given (or against whom process issued). To whom given. Nature of instru- ment. Date. Date of regis- tration. Date of registra- tion of affidavit of renewal. entered. Name. Eesi- denoe. Occu- pation. 3 y2 1030 41 & 42 Vict. cap. 49. 41 & 42 Vict. cap. 49. An Act to consolidate the Law relating to Weights and Measures. I8th August, 18Y8.] Be it ejiaeted by the Queen's most Excellent Majesty, ty and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assemhled, and by the authority of the same, as follows : Freliminari/, Short title. 1. This Act may be cited as the Weights and Measures Act, 1878. Commencement. 2. This Act shall not come into operation until the first day of January one thousand eight hundred and seventy-nine, which day is hereinafter referred to as the commencement of this Act. Uniformity of weights and Imperial stan- dards of measure and weight. Parliamentary copies of impe- xlal standards. Hfistoration of imperial standards. Restoration of parliamentary (.opies. Secondary (Board of Trade) standards of measure and weight. I. — Law 01' Weights and Meastjees. Vniformii)/ of Weights and Measures. 3. The same weights and measures shall be used throughout the United Kingdom. Standards of Measure and Weight. 4. The bronze bar and the platinum weight, more particularly described in the iirst part of the First Schedule to this Act, and at the passing of this Act deposited in the Standards Department of the Board of Trade ia the custody of the Warden of the Standards, shall continue to be the imperial standards of measure and weight, and the said bronze bar shall continue to be the imperial standard for determining the imperial standard yard for the United Kingdom, and the said platinum weight shall continue to be the imperial standard for determiniog the imperial standard pound for the United Kingdom. 5. The four copies of the imperial standards of measure and weight, described in the second part of the First Schedule to this Act, and deposited as therein mentioned, shall be deemed to be parliamentary copies of the said imperial standards. The Board of Trade shall as soon as may be after the commencement of this Act cause an accurate copy of the imperial standard of measure and an accurate copy of the imperial standard of weight to be made of the same form and material as the said standards, and it shall be lawful for Her Majesty in Council, on the representation of the Board of Trade, to approve the copies so made, and the copies when so approved shall be of the same effect as the said parliamentary copies, and are in this Act included under the name parliamentary copies of the imperial standards of measure and weight. 6. If at any time either of the imperial standards of measure and weight is lost or in any manner destroyed, defaced, or otherwise injured, the Board of Trade may cause the same to be restored by reference to or adoption of any of the parliamentary copies of that standard, or of such of them as may remain available for that purpose. 7. If at any time any of the parliamentary copies of either of the imperial standards is lost or in any manner destroyed, defaced, or otherwise injured, the Board of Trade may cause the same to be restored by reference either to the corresponding imperial standard, or to one of the other parliamentary copies of that standard. 8. The secondary standards of measure and weight which, having been derived from the imperial standards, are at the commencement of this Act in use under the direction of the Board of Trade, and are mentioned in the Second Schedule to this Act, and no others (save as hereinafter mentioned), shall be secondary standards of measure and weight, and shall be called Board of Trade standards. If at any time any of such standards is lost or in any manner destroyed, defaced, or otherwise injured, the Board of Trade may cause the same to be Weights and Measures Act, 1878. 1031 restored by reference either to one of the imperial standards or to one of tho parliamentary copies of those standards. The Board of Trade shall from time to time cause such new denominations of standards, being either equivalent to or multiples or aliquot parts of the imperial weights and measures ascertained by this Act, or being equivalent to or multiples of each coin of the realm for the time being, as appear to them to be required, in addition to those mentioned in the Second Schedule to this Act, to be made and didy verified, and those new denominations of standards when approved by Her Majesty in Council shall be Board of Trade standards in Uke manner as if they were mentioned in the said schedule. It shall be lawful for Her Majesty by Order in CouncU to declare that a Board of Trade standard for the time being of any denomination, whether mentioned in the said schedule or approved by Order in Council, shall cease to be such a standard. Such standards of the Board of Trade as are equivalent to or mtiltiples of any coin of the realm for the time being shall be standard weights for deter- mining the justness of the weight of and for weighing such coin. 9. The standards of measure and weight which are at the commencement Local standards of this Act legally in use by inspectors of weights and measures for the pur- "' measure and pose of verification or inspection, and all copies of the Board of Trade Stan- ■''^S''t- dards which after the commencement of this Act are compared with those standards and verified by the Board of Trade for the purpose of being used by inspectors of weights and measures under this Act as standards for the verification or inspection of weights and measures, shall be called local standards. Imperial Measures of Zength. 10. The straight line or distance between the centres of the two gold ■'f^P?""! ■, plugs or pins (as mentioned in the First Schedule to this Act) in the bronze bar ^™"dara yard, by this Act declared to be the imperial standard for determining the imperial standard yard measured when the bar is at the temperature of sixty-two degrees of Fahrenheit's thermometer, and when it is supported on bronze rollers placed under it in such manner as best to avoid flexure of the bar, and to feciUtate its free expansion and contraction from variations of tem- perature, shall be the legal standard measure of length, and shall be called the imperial standard yard, and shall be the only unit or standard measure of extension from which all other measures of extension, whether linear super- ficial or solid, shall be ascertained. 11. One-third part of the imperial standard yard shall be a foot, and the Linear measmes twelfth part of such foot shall be an inch, and the rod, pole, or perch in length derived from shall contain five such yards and a half, and the chain shall contain twentv- ^^^^yard. two such yards, the furlong two hundred and twenty such yards, and the mile one tiiousand seven hundred and sixty such yards. 12. The rood of land shall contain one thousand two hundred and ten Superficial mea- square yards according to the imperial standard yard, and the acre of land sures derived shall contain four thousand eight hundred and forty such square yards, being iSf^tandaxd one hundred and sixty square rods, poles, or perches. yard. Imperial Measures of Weight and Capacity. 13. The weight in vaouS of the platinum weight (mentioned in the Krst ^^ pound. Schedule to this Act), and by this Act declared to be the imperial standard for determining the imperial standard pound, shall be the legal standard measure of weight, and of measure having reference to weight, and shall be called the imperial standard pound, and shaU be the only unit or standard measure of weight from which all other weights and all measures having reference to weight shall be ascertained. 14. One sixteenth part of the imperial standard pound shall be an ounce, Imperialweights and one sixteenth part of such ounce shall be a dram, and one seven thou- denvedfram sandih part of the imperial standard pound shaU be a grain. 'Stod pound. A stone shall consist of fourteen imperial standard pounds, and a hundred- weight shall consist of eight such stones, and a ton shall consist of twenty such hundredweights. Four hundred and eighty grains shall be an ounce troy. All the foregoing weights except the ounce troy shall be deemed to be avoirdupois weights. 1032 41 & 42 Vict. cap. 49. Imperial measures of capacity. Measure of capa- city for goods formerly sold by heaped measure. 5 & 6 Will. 4, c. 63. Measure of capacity when used to be stricken or filled up. Equivalents of metric weights and measures in terms of im- perial weights and measures. Trade contracts, &c. to be in terms of impe- rial weights or measures. Sale by avoirdu- pois weight, with exceptions. Exception for contract, &c. in metric weights and measures. 15. The unit or s^ndard measure of capaoity from wMcli all other mea- sures of capacity, as well for liquids as for dry goods, shall be derived, shall he the gafion oontainiag ten imperial standard pounds ■weight of dijstilled water weighed in air against brass weights, with the water and the air at the temperature of sixty-two degrees of Fahrenheit's thermometer, and with the barometer at thirty inches. The quart shall be one fourth part of the gallon, and the pint shall be one eighth part of the gallon. Two gallons shall be a peck, and eight gallons shall be a bushel, and eight such bushels shall be a quarter, and thirty-six such bushels shall be a chaldron. 16. [A bushel for the sale of any of the following articles, namely, lime, fish, potatoes, fruit, or any other goods and things which before (the passing of the Weights and Measures Act, 1835, that is to say) the ninth day of September one thousand eight hundred and thirty-five, were commonly sold by heaped measure, shall be a hollow cylinder having a plane base, the internal diameter of which shall be double the internal depth, and every measure used for the sale of any of the above-mentioned articles which is a multiple of a bushel, or is a half bushel or a peck, shall be made of the same shape and proportion as the above-mentioned bushel (J).] 17. In using an imperial measure of capaoity, the same shall not be heaped, but either shall be stricken with a round stick or roller, straight and of the same diameter from end to end, or if the article sold cannot from its size or shape be conveniently stricken shall be filled in all parts as nearly to the level of the brim as the size and shape of the article will admit. Metric Equivalents of Imperial Weights and Measures. 18. The table in the Third Schedule to this Act shall be deemed to set forth the equivalents of imperial weights and measures and of the weights and measures therein expressed in terms of the metric system, and such table may be lawfully used for computing and expressing, in weights and measures, weights and measures of the metric system. Use of Imperial Weights and Measures. 19. Every contract, bargain, sale, or dealing, made or had in the United Kingdom for any work goods wares or merchandise or other thing which has been or is to be done, sold, delivered, carried, or agreed for by weight or measure, shall be deemed to be made and had according to one of the imperial weights or measures ascertained by this Act, or to some multiple or part thereof, and if not so made or had shall be void ; and all tolls and duties charged or collected according to weight or measure shall be charged and collected according to one of the imperial weights or measures ascertained by this Act, or to some multiple or part thereof. Such contract, bargain, sale, dealing, and collection of tolls and duties as is in this section mentioned is in this Act referred to under the term "trade." No local or customary measures, nor the use of the heaped measure, shall be lawful. Any person who sells by any denomination of weight or measure other than one of the imperial weights or measures, or some multiple or part thereof, shall be liable to a fine not exceeding forty shUliugs for every such sale. 80. AH articles sold by weight shall be sold by avoirdupois weight ; except that — (1^ Grold and silver, and articles made thereof, including gold and sUver thread, lace, or fringe, also platinum, diamonds, and other precious metals or stones, may be sold by the ounce troy or by any decimal parts of such ounce ; and all contracts, bargains, sales, and dealings in relation thereto shall be deemed to be made and had by such weight, and when so made or had shall be valid ; and (2.) Drugs, when sold by retail, may be sold by apothecaries weight. Every person who acts in contravention of this section shall be liable to a fine not exceeding five pounds. 21. A contract or dealing shall not be invalid or open to objection on the ground that the weights or measures expressed or referred to therein are (S) Eepealed : 62 & 53 Vict. c. 21, s. 5. Weights and Mbasukes Act, 1878. 1033 weights or measures of the metric system, or on the ground that decimal subdivisions of imperial •weights and measures, whether metric or otherwise, are used in such contract or dealing. 22. Nothing in this Act shall prevent the sale, or subjeot a person to a Exception for fine under this Act for the sale, of an article in any vessel, where such vessel |J*T«Bd^ot^ is not represented as containing any amount of imperial measure, nor subject represented as a person to a fine under this Act for the possession of a vessel where it is being of impe- shown that such vessel is not used nor intended for use as a measure. "** "'' 1°™1 23. Any person who prints, and any clerk of a market or other person who ™^''-''™^- makes, any return, price list, price current, or any journal or other paper v^^'S'''j''"f'' containing price list or price current, in which the denomination of weights ing p-eater™r' and measures quoted or referred to denotes or implies a greater or less weight less weight or or measure than is denoted or implied by the same denomination of the measure than imperial weights and measures under this Act, shall be liable to a fine not nonS™Hon%f exceeding ten shillings for every copy of every such return, price Ust, price imperial weight current, journal, or other paper which he publishes. or mea'jure. 24. Every person who nses or has in his possession for use for trade a Penalty on use weight or measure which is not of the denomination of some Board of or possossiono Trade standard, shall be liable to a fine not exceeding five pounds, or in ^fg^to™ the case of a second ofEence ten pounds, and the weight or measm-e shall be measm-e. liable to be forfeited. Unjust Weights and Measures. 26. Every person who uses or has in his possession for use for trade any Penalty on use weight measure scale balance steelyard or weighing machine which is false °^ possession of or unjust, shall be liable to a fine not exceeding five pounds, or in the case of ^o]^t"M-'°^' a second offence [twenty] pounds (c), and any contract bargain sale or deal- anoe«, or weigh- ing made by the same shall be void, and the weight measure scale balance or ing maohinea. steelyard shall be liable to be forfeited. 26. Where any fraud is wilfully committed in the using of any weight Penaltyforfraud measure scale balance steelyard or weighing machine, the person committing JJ^^^J weight, such fraud, and every person party to the fraud, shall be liable to a iiue not balance,' &c. exceeding five pounds, or in the case of a second offence [twenty] pounds (c), and the weight measure scale balance or steelyard shall be liable to be forfeited. 27. A person shall not wilfully or knowingly make or sell, or cause to be Penalty on sale made or sold, any false or unjust weight measure scale balance steelyard meMure^^'^'^'' or weighing machine. _ ... . balanoe,'&c. Every person who acts in contravention of this section shall be liable to a iine not exceeding ten pounds, or in the case of a second offence fifty pounds. Stamping and Verijlcation of Weights and Measures. 28. Every weight, except where the small size of the weight renders it Stamping of impracticable, shall have the denomination of such weight stamped on the ^eas^ea with top or side thereof in legible figures and letters. denomination. Every measure of capacity shall have the denomination thereof stamped on the outside of such measure in legible figures and letters. A weight or measure not in conformity with this section shall not be stamped with such stamp of verification under this Act as is hereinafter mentioned. 29. Every measure and weight whatsoever used for trade shall be verified stamping of and stamped by an inspector with a stamp of verification under this Act. veiifloation on Every person who uses or has in his possession for use for trade any '^^^^^ measure or weight not stamped as required by this section, shall be liable to a fine not exceeding five pounds, or in the case of a second offence ten pounds, and shall be liable to forfeit the said measure or weight, and any contract bargain sale or dealing made by such measure or weight shall be void. 80. A weight made of lead or pewter, or of any mixture thereof, shall not Lead or pewter be stamped with a stamp of verification or used for trade, unless it be whoUy weights, and substantially cased with brass copper or iron, and legibly stamped or marked ' ' cased : Provided that nothing in this section shall prevent the insertion into a weight of such a plug of lead or pevrter as is bon^ fide necessary for the purpose of adjusting it and of af&xing thereon the stamp of verification. A person guilty of any offence against or disobedience to the provisions of (c) 52 & 53 Vict. 0. 21, ss. 3, 4. 1034 41 & 42 Vict. cap. 49. stamping of yerificatioii on weights for coin. Forgery, &c. of stamps on measures or weights. Powers and duties of Board of Trade as to standards of weights and measures, &c. Custody of im- perial and Board of Trade stan- dards to remain with Board of Trade. Custody and periodical verifi- cation of parlia^ mentary copies of imperial standards. Periodical verifi- cation of Board of Trade standards. this section, shall be liable to a penalty not exceeding five pounds, or in case of a second offence ten ponnds. 31. Every coin weight, not less in weight than the weight of the lightest coin for the time being current, shall be verified and stamped by the Board of Trade with a mark of verification tmder this Act, and otherwise shall not be deemed a just weight for determining the weight of gold and silver coin of the realm. Every person who uses any weight declared by this section not to be a just weight shall be liable to a fine not exceeding fifty pounds. 32. If any person forges or counterfeits any stamp used for the stamping under this Act of any measure or weight, or used before the commencement of this Act for the stamping of any measure or weight, under any enactment repealed by this Act, or wilf ully increases or diminishes a weight so stamped, he shall be liable to a fine not exceeding fifty pounds. Any person who knowingly uses, sells, utters, disposes of, or exposes for sale any measure or weight with such forged or ooiinterfeit stamp thereon, or a weight so increased or diminished, shall be liable to a fine not exceeding ten pounds. AJl measures and weights with any such forged or counterfeit stamp shall be forfeited ((?). II. — ADMnnSTEATION. (a.) Central. Board of Trade. 33. The Board of Trade shall have all such powers and perform all such duties relative to standards of measure and weight, and to weights and measures, as are by any Act or otherwise vested in or imposed on the Treasury, or the ComptroUer-General of the Exchequer, or the Warden of the Standards ; and aU things done by the Board of Trade, or any of their ofEcers, or at their office, in relation to standards of weights and measures in pursuance of this Act shall be as valid, and have the like effect and conse- quences, as if the same had been done by the Treasury, or by the Comptroller- Greneral or other officer of the Exchequer, or by the Warden of the Standards, or at the office of the Exchequer. It shall be the duty of the Board of Trade to conduct all such comparisons, verifications, and other operations with reference to standards of measure and weight, in aid of scientific researches or otherwise, as the Board of Trade from time to time thinks expedient, and to make from time to time a report to Parliament on their proceedings and business under tTiia Act. Custody and Verification of Standards and Copies. 34. The imperial standards of measure and weight, the Board of Trade standards of measure and weight, and all balances, apparatus, books, docu- ments, and things used in connection therewith or relating thereto, deposited at the passing of this Act in the Standards Department, or in any other office of the Board of Trade, shaU remain and be in the custody of the Board of Trade. 35. The parliamentary copies of the imperial standards of measure and weight mentioned in part two of the Krst Schedule to this Act shaU continue to be deposited as therein mentioned. The copies of the imperial standards of measxire and weight made in pur- suance of this Act, when approved by Her Majesty in Council, shall be deposited at some office of the Board of Trade, and be in the custody of the Board of Trade. The Board of Trade shaU cause the parliamentary copies of the imperial standards of measure and weight, except the copy immured in the new palace at Westminster, to be compared once in every ten years vrith each other, and once in every twenty years with the imperial standards of mea- sure and weight. 36. Once at least in every five years the Board of Trade shall cause the Board of Trade standards for the tune being to be compared with the parlia- mentary copies of the imperial standards of measure and weight made and approved in pursuance of this Act and with each other, and to be adjusted or renewed, if requisite. (J) This section now applies to weighing machines : 52 & 53 Vict. c. , 1 (4). 21, "Weights and Measures Act, 1878. 1035 87. The Board of Trade shall cause to be compared with the Board of Verification by- Trade standards and verified at such places as the Board of Trade in each Board of Trade case direct all copies of any of those standards which are submitted for the abmtods. purpose by any local authority, and have been used or are intended to be used as local standards, and if they find lie same fit for the purpose of being used by inspectors of weights and measures under this Act as standards for the verification and inspection of weights and measures, shall cause them to be stamped as verified or reverified in such manner as to show the date of such verification or re -verification, and every such verification shall be evidenced by an indenture, and every such re-verification shall be evidenced by an indorsement upon the original indenture of verification, or by a new indenture of verification. Any such indenture or indorsement, if purporting to be signed (either before or after the passing of this Act) by an officer of the Board of Trade, shall be evidence of the verification or re-verification of the weights and measui'es therein referred to. Any such indenture or indorsement shall not be liable to stamp duty, nor shall any fee be payable on the verification or re-verifioation of any local standard. An account shall be kept by the Board of Trade of aU local standards verified or re- verified. 38. Whereas the Board of Trade have obtained accurate copies of the Powerol Board metric standards mentioned in part two of the Third Schedule to this Act, «' "^^^ *". and it is expedient to make the provision hereinafter mentioned for the ™^~J^and° verification of metric weights and measures, be it therefore enacted as measures. foUows : The Board of Trade may, if they think fit, cause to be compared with the metric standards in their custody and verified aU metric weights and mea- sures which are submitted to them for the purpose, and are of such shape and construction as may be from time to time in that behalf directed by the Board of Trade, and which the Board of Trade are satisfied are intended to be used for the purpose of science or of manufacture, or for any lawful purpose not being for the purpose of trade within the meaning of this Act. 89. The Board of Trade, on payment of such fee, not exceeding five Verification and shillings, as they from time to time prescribe, shall cause all coin weights stamping of required by this Act to be verified, to be compared witli the standard weights """^ weignts. for weighing coin, and, if found to be just, stamped with a mark approved of by the Board, and notified in the London Gazette. All fees under this section shall be paid into the Exchequer. (b.) Zocal Administration, Zocal Standards. 40. The local authority (mentioned in the Fourth Schedule to this Act) of Provision of every county and borough feom time to time shall provide such local stan- joeal standards dards of measure and weight as they deem requisite for the purpose of the by local autho- oomparison by way of verification or inspection, in accordance with this Act, of afi weights and measures in use in their county or borough, and shall fii the places at which such standards are to be deposited. The said local authority shall also provide from time to time proper means for verifying weights and measures by comparison with the local standards of such authority and for stampiag the weights and measures so verified. 41. A local standard of weight shall not be deemed legal nor be used for Periodical verifl- the purposes of this Act unless it has been verified or re- verified within five oftioo o| 'ooal '•,'■11 ., .. . 1.1. j_. J standards, years before the time at whicn it is uaea. A local standard of measure shall not be deemed legal nor be used for the purposes of this Act unless it has been verified or re-verified within ten years before the time at which it is used. A local standard of weight or measure which has become defective in consequence of any wear or accident, or has been mended, shall not be legal nor be used for the purpose of this Act until it has been re-verified by the Board of Trade. .^ , ^ , A local standard may, save as aforesaid, be re-venfied, for the purpose of this section, by such local comparison thereof as is hereinafter mentioned, it on that local comparison it is found correct, but otherwise shall be, and in any case may be, re-verified by the Board of Trade. 1036 41 & 42 Vict. cap. 49. Production of local standards. A local comparison of a local standard shaU be made ty an inspector of ■weights and measures for the oonnty or borough in which such standard is used comparing the same, in the presence of a justice of the peace, ■with some other local standard ■which has been verified or re-verified by the Board of Trade, in the case of a weight -within the previous five years, and in the case of a measure within the previous ten years. Upon a local comparison where the local standard is found correct the justice shall sign an indorsement upon the indenture of verification of that standard, stating such local comparison and verification, and the error, if any, found thereon, and the indorsement so signed shall be transmitted to the Board of Trade to be recorded in the account of the verification of local standards. The indorsement when so recorded shall be evidence of the local comparison and verification, and a statement of the record thereof, if pur- porting to be signed by an ofBoer of the Board of Trade, shall be evidence of the same ha-sdng been so recorded. It shall be la-wful for Her Majesty from time to time, by Order in Council, to define the amount of error to be tolerated in local standards when verified or re- verified by the Board of Trade, or when re-verified by such a local comparison as is authorised by this section. 48. The local standards shall be produced by the person having the custody thereof, upon reasonable notice, at such reasonable time and place within the county, borough, or place for which the same have been provided, as any person by -writiag under his hand requires, upon payment by the person requiring such production of the reasonable charges of producing the Appointment of inspectors of ■weights and measures. Verification and stamping by inspectors of ■weights and measures. local Verification and Inspection of Weights and Measures. 43. Every local authority shall from time to time appoint a sufficient n^umber of inspectors of weights and measures for safely keeping ■the local standards provided by such authority, and for the discharge of the other duties of inspectors under this Act ; and. where they appoint more than one such inspector, shall allot to each inspector (subject to any arrangement made for a chief inspector or inspectors) a separate district, to be distinguished by some name, number, or mark; and the local authority may suspend or dismiss any inspector appointed by them or appoint additional inspectors, as occasion may require, and shall assign reasonable remuneration to each inspector for his duties. A local authority may, if they think fit, appoint different persons to be inspectors for verification and for inspection respectively of weights and measures under this Act. [A maker or seller of weights or measures, or a person employed in the making or selling thereof, shall not be an inspector of weights and measures under this Act («).] An inspector of weights and measures shall f orth^with on his appointment enter into a recognizance to the Cro^wn (to be sued for in any court of record) in the sum of two hundred pounds for the due performance of the duties of his office, and for the due payment, at the times fixed by the local authority appointing him, of all fees received by bim under this Act, and for the safety of the local standards and the stemps and appliances for verification committed to his charge, and for their due surrender immediately on his removal or other cessation from office to the person appointed by the local authority to receive them. 44. The local authority shall from time to time fix the times and places ■within their jurisdiction at which each inspector appointed by them is to attend for the purpose of the verification of weights and measures ; and the inspector shall attend, -with the local standards in his custody, at each time and place fixed, and shall examine every measure or weight which is of the same denomination as one of such standards and is brought to biTn for the piu-pose of verification, and compare the same vrith that standard, and if he iind the same correct shall stamp it with a stamp of verification in such manner as best to prevent fraud ; and in the case of a measure or of a weight of a quarter of a pound or upwards, shall further stamp thereon » name, number, or mark ^tinguishing the district for which he acts. He shall also enter in a book kept by him minutes of every such verifica- tion, and give, if required, a certificate under his hand of every such stamping. («) Repealed : see 62 & 63 Vict. c. 21, ss. 12, 36. Weights and Measures Act, 1878. 1037 An inspector appointed by the local authority for a county may enter a place wiuiin the district of an inspector appointed by any other local authority, and there verify and stamp the -weights and measures of any person residing within his own district, but if he knowingly stamp a weight or measure of any person residing in the district of an inspector legally appointed by another local authority, he shall be liable to a fine not exceeding twenty shilUngs for every weight or measure which he so stamps. 46. A weight or measure duly stamped by an inspector under this Act Validity of shall be a legal weight or measure throughout the United Kingdom, unless weights and found to be false or unjust, and shall not be liable to be re-stamped because rtamoed*' used in any place other than that in which it was originally stamped. throughout the 46. [Where a measure for liquids is constructed with a small window or United transparent part through which the contents, whether' to the brim or to any Kingdom, other index thereof, may be seen without impediment, such measure may be Power to stamp verified and stamped by inspectors under this Act, although such measure is ™^™e8 made made partly of metal and partly of glass or other transparent medium, and and partly of that miiether such measure corresponds exactly to a Board of Trade standard, glass. or whether it exceeds such standard, but has the capacity of such standard indicated by a level line drawn through the centre of the window or trans- parent part (/).] 47. [An inspector under this Act may take in respect of the verification and Fees for com- stamping of weights and measures such fees not exceeding those specified in Prison and the Kf th Sched^e to this Act as the authority appointing him from time to ° ^™^' time fix, and shall at such times not less often than once a quarter as the said authority direct, accouut for and pay over to the treasurer of the local rate or such person as the said authority direct all fees taken by him (g).! Where the Board of Trade, upon the appUoation of any local authority from time to time represent to Her Majesty that it would be expedient to alter the fees taken by the inspectors of such authority under this Act (whether specified in the said schedule or in any order previously made under this section) or, for the purpose of adapting those fees to the local standards provided by such authority, to add to the said fees, it shall be lawful for Her Majesty by Order in Council from time to time to alter or add to the said fees. 48. Every inspector under this Act authorized in writing under the hand Power to inspect of a justice of the peace, also every justice of the peace, may at aU reasonable me?«™es, ^ times inspect all weights measures scales balances steelyards and weighing &o!^an(i to'onter machines within his jurisdiction which are used or in the possession of any shops, &o., for person or on any premises for use for trade, and may compare every such fiat purpose, weight and measure with some local standard, and may seize and detain any weight measui-e scale balance or steelyard which is liable to be forfeited in pursuance of this Act, and may for the purpose of such inspection enter any place, whether a bu£ding or in the open air, whether open or enclosed, where he has reasonable cause to believe that there is any weight measure scale balance steelyard or weighing inaohine which he is authorised by this Act to inspect. Any person who neglects or refuses to produce for such inspection all weights measures scales balances steelyards and weighing machines in his possession or on his premises, or refuses to permit the justice or inspector to examine the same or any of them, or obstructs the entry of the justice or inspector under this section, or otherwise obstructs or hinders a justice or inspector acting under this section, shall be liable to a fine not exceeding five, or, in the case of a second offence, ten pounds. 49. If an inspector under this Act stamps a weight or measure in contra- Penalty on vention of any provision of this Act, or without duly verifying the same inspectorfor by comparison with a local standard, or is guilty of a breach of an^ duty misconduct, imposed on him by tins Act, or otherwise misconducts himself in the execution of his office, he shall be liable to a fine not exceeding five pounds for each offence. Local Authorities. 60. For the piu-poses of this Act "the local authority " and "the local Local authorities rate " shall mean in each of the different areas mentioned in the first column and local rate, of the Fourth Schedule to this Act the authority and the rate or fund mentioned in that schedule in connexion with that area : Provided that in England the council of a borough which has not a separate (/) Eepealed : 52 & 53 Viot. o. 21, ss. 5, 36. Iff) Bepealed: 52 & 63 Vict. c. 21, s. 36. 1038 41 & 42 Vict. cap. 49. Expenses of local authority. Power of local authorities to combine for purposes of Act. Power to local authority to make byelaws as to local veri- fication, &c. Appointment of inspectors in towns and other Power of vestry, &c. in Metro- polis to put an end to appoint- ment of inspec- tors of weights and measures under Local Act. court of quarter sessions shall not, unless they so resolve, be the local authority for the purposes of this Act, and if they so resolve and provide local standards and appoint inspectors after the oonunencement of this Act, they shall forthwith give notice of such resolution and appointment, under the corporate seal of the borough, to the clerk of the peace of the county in ■which the borough is situate, and after the expiration of one month from the day on which that notice of the said appointment is given the powers of in- spectors of weights and measures appointed by the justices of the county shall, as to such borough and the weights and measures of persons residing therein, cease ; but imtU such notice is given the borough shall be deemed to form part of the said county in like manner as if the same were not a borough. Where at the commencement of this Act legal local standards are provided and inspectors are appc&ited by the council of a borough not having a sepa- rate court of quarter sessions, that councU shall continue to be the local authority until they otherwise resolve. 51. The expense of providing and re-verifying local standards, the salaries of the inspectors, and all other expenses incurred by the local auliority under this Act shall be paid out of the local rate. The treasurer of the county in which a borough in England having a separate court of quarter sessions is situate shall exclude from the account kept by him of all sums expended out of the county rate to which the borough is liable to contribute all sums expended in pursuance of this Act. 62. Any two or more local authorities may combine, as regards either the whole or any part of the areas within their jurisdiction, for all or any of the purposes of this Act, upon such terms and in such manner as may be from time to time mutually agreed upon. An inspector appointed in pursuance of an agreement for such combina- tion shall, subject to the terms of his appointment, have the same authority, jiurisdiction and duties as if he had been appointed by each of the authorities who are parties to such agreement. 53. Any local authority from time to time, with the approval of the Board of Trade, may make, and when made, revoke, alter, and add to, byelaws for regulating the comparison with the local standards of such authority, and the verification and stamping of weights and measures in use in their county or borough, and for regulating the local comparison of the local standards of such aumority, and generally for regulating the duties under this Act of the inspectors appointed by the local authority or of any of those inspectors. Such byelaws may impose &ies not exceeding twenty shillings for the breach of any byelaw, to be recovered on summary conviction. The Board of Trade before approving any such byelaws shall cause them to be published in such manner as they think sufficient for giving notice thereof to all persons interested (A). 54. Where a town or other place has been or may hereafter be authorised under any Act, whether local or otherwise, to appoint inspectors or examiners of weights and measures, or where any other place has been or may hereafter be, by charter Act of Parliament or omerwise, possessed of legal jurisdiction, and such town or place is for the time being provided with legal local standards, the magistrates of such town or place, or other persons authorised as aforesaid, may appoint inspectors of weights and measures within the limits of their jurisdiction, and suspend and dismiss such inspectors, and such inspectors shall within such limits exclusively have the same power and dis- charge the same duties as inspectors of weights and measures appointed under this Act by the local authority for the coxmty, and shall pay over and account for the fees received by them under this Act, to such persons as may be duly authorised by the magistrates or other persons appointing them (i). 55. Where in any place in the Metropolis — ^that is to say, in the parishes and places in which the Metropolitan Board of Works have power to levy the consolidated rate — any vestry commissioners or other body have any duties or powers, under any Local Act charter or otherwise, in relation to the appointment of inspectors or examiners of weights and measures, such vestry conunissioners or body may, at a meeting specially convened for the purpose of which not less than fourteen days' notice has been'given, resolve that it is expedient that their said duties and powers should cease in such place. The clerk or other like officer of such vestry commissioners or body shall give notice of such resolution to the clerk of the peace for the county in (A) See 62 & 63 Vict. o. 21, s. 1 (3). (i) As to the county of Loudon, see 52 & 63 Vict. c. 21, s. 16. Weights and Measures Act, 1878. 1039 which such place is situate, and the clerk of the peace shall lay such notice before the next practicable court of quarter sessions for the county, and after the receipt of such notice by the court of quarter sessions the appointment, and all powers of appointment, of any inspector or examiner appointed under such Local Act charter or otherwise, shaU cease in the said ^ce, without prejudice to any proceedings then pending for penalties or otherwise (A). Legal Froceedinga. 86. All offences under this Act may be prosecuted and all fines and for- Prosecution of feitnres under this Act may be recovered on summary conviction before a offences and court of summary jurisdiction in manner provided by the Summary Jurisdic- '^^"'™'7of fines, tion Act. The court when hearing and determining an information or complaint under this A.ct shall be constituted either of two or more justices of the peace in petty sessions sitting at a place appointed for holding petty sessions, or of some magistrate or officer sitting alone or with others at some court or other place appointed for the administration of justice and for the time bein>' empowered by law to do alone any act authorised to be done by more than one justice of the peace. 67. The following enactments shall apply to proceedings under this Act Provisions as before a court of summary jurisdiction ; (that is to say,) to summary 1. The description of any offence in the words of this Act, or in similar Proceeiiioss- words, shall be sufficient in law ; and 2. Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence, may be proved by the defendant but need not be specified or negatived in the information or complaint, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the informant or complainant ; and 3. A warrant of commitment shall not be held void by reason of any defect I therein, if it be therein alleged that the offender has been convicted, and there is a good and valid conviction to sustain the same. 4. Such portion of any fine under this Act, not exceeding a moiety, as the court of summary jurisdiction before whom a person is convicted think fit to direct, may, if the court in their discretion so order, be paid to the informer. 5. All weights measures scales balances and steelyards forfeited under this Act shall be broken up, and the materials thereof may be sold or otherwise disposed of as a court of summary jurisdiction direct, and the proceeds of such sale shall be applied in like manner as fines under this Act. 68. A person shall not be liable to any increased penalty for a second Limitation as to offence under any section of this Act unless that offence was committed after conviction for a conviction within five years previously for an offence under the same second offences. Sbction. 69. Where any weight measure scale balance steelyard or weighing Evidence as to machine is found in the possession of any person carrying on trade within possession, the meaning of this Act, or on the premises of any person which, whether a building or in the open air, whether open or enclosed, are used for trade within the meaning of this Act, such person shall be deemed for the purposes of this Act, uutU the contrary is proved, to have such weight measure scale balance steelyard or weighing machine in his possession for use for trade. 60. Any person who feels himself aggrieved by a conviction or order of a Appeal from court of summary jurisdiction under tiis Act may appeal therefrom, subject conviction, in England to the conditions following ; that is to say, (1.) The appeal shall be made to the next practicable court of general or quarter sessions having jurisdiction m the county or place in which the decision of the court was given, audholden not leas than twenty- one days after the day on which such' decision was given ; and (2.) The appellant shall, within ten days after the day on which the deci- sion was given, serve notice on the other party and on the clerk of the court of summary jurisdiction of his intention to appeal, and of the general grounds of such appeal ; and (3.) The appellant shall, within three days after the day on which he gave ^ )Now as to the County of London, see 52 & 53 Vict. o. 21, e. 16. 1040 41 & 42 Vict. cap. 49. Frovifiioii as to action against _ person acting in execution of Act. Continuance of inquisition recorded for ascertaining rents and tolls payable. Orders in Council, Effect of e dules. notice of appeal, enter into a recognizance before a court of sum- mary jurisdiction, with or -wiiliout a surety or sureties as the court may direct, conditioned to appear at the said sessions and to try sucSi appeal, and to abide the judgment of the court thereon, and to pay such costs as may be awarded by the court, or the appel- lant may, if the court of summary jurisdiction thinks it expeifient, instead of entering into a recognizance, give such other security, by deposit of money with the clerk of the court of summary jurisdic- tion or otherwise, as the court deems sufficient ; and (4.) Where the appellant is in custody a court of summary jurisdiction may, if it seem fit, on the appellant entering into such recognizance or giving such other security as aforesaid, release him from custody ; and (5.) The court of appeal may adjourn the hearing of the appeal, and upon the hearing thereof may confirm, reverse, or modify the decision of the court of summary jurisdiction, or remit the matter to the court of summary jurisdiction with the opinion of the court of appeal thereon, or make such other order in the matter as the court thinks just. The court of appeal may also make such order as to costs to be paid by either party as the court thinks just ; and (6.) Whenever a decision is reversed by the court of appeal the clerk of the peace shall indorse on the conviction or order appealed against a memorandum that such conviction or order has been quashed, and whenever any copy or certificate of such conviction or order is made, a copy of such memorandum shall be added thereto, and shall be sufficient evidence that the conviction or order has been quashed in every case where such copy or certificate would be sufficient evidence of such conviction or order ; and (7.) Every notice in writing required by this section to be given by an appellant may be signed by him, or by his agent on his behalf, and may be transmitted in a registered letter by the post in the ordinary way, and shall be deemed to have been served at the time when it would be delivered in the ordinary course of the post. 61. In "an action for any act done in pursuance or execution or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act, tender of amends before the action is commenced may in lieu of or in addition to any other plea be pleaded, if the action was com- menced after such tender, or is proceeded with after, payment into court of any money in satisfaction of the plaintiff's claim. If the action is commenced after such tender, or is proceeded with after such payment, and the plaintifE does not recover more than the sum tendered or paid respectively, the plaintifE shall not recover any costs incurred after such tender or payment, and the defendant shall be entitled to his costs, to be taxed as between solicitor and client, as from the time of such tender or payment ; but this provision shall not affect costs on any injunction in the action. III. — ^MlSOELLAMEOUS. 62. Every inquisition which, in pursuance of any Act hereby repealed, has been taken for ascertaining the amount of contracts to be performed or rents to be paid in grain or malt, or in any ottier commodity or thing, or with reference to the measure or weight of any grain, malt or other commodity or thing, and the amount of any toU, rate or duty payable according to any weight or measure in use before the passing of the said Act, and has been enrolled of record in her Majesty's Court' of Exchequer, shall continue in force, and may be given in evidence in any legal proceeding, and the amount ascertained by such inquisition shall, when converted into imperial weights and measures, continue to be the rule of payment in regard to all such con- tracts rents tolls rates or duties. 63. It shall be lawful for her Majesty in CouncU from time to time to make orders for the purposes of this Act, and to revoke and vary any such order. All Orders iu Council made under this Act shaU be published in the London Edinburgh and DubUn Gazettes, and shall be forthwith laid before both Houses of Paxliament, and shall have full effect as part of this Act. 64. The schedules to this Act, with the notes thereto, shall be construed and have effect as part of this Act. Weights and Measures Act, 1878. 1041 65. Where an enactment refers to any Act repealed by this Act, or to any CooBtruetioii of enactment thereof, the same shall be construed to refer to this Act or to the ^"'* refrarmg corresponding enactment of this Act. ma^M^. Savings and Definitions. 66. Nothing in this Act shall affect the validity of the models of gas Saving as to holders verified and deposited in the standards department of the Board of ?"ij^'* °' ^^ Trade in pursuance of the Act of the session of the twenty-second and twenty- 22 &^23 ^e^ third years of the reign of her present Majesty, chapter sixty-six, intituled 0. 66. "An Act for regulating measures used in sales of gas," and of the Acts amending the same, and the provisions of this Act with respect to Board of Trade standards shall apply to such models ; and the provisions of this Act with respect to defining the amount of error to be tolerated in local standards when verified or re-verified, shall apply to defining the amount of error to be tolerated in such copies of the said models of gas holders as are provided by any justices council commissioners or other local authority in pursuance of the said Acts. 67. Nothing in this Act shall extend to prohibit, defeat, injure, or lessen Saving as to the rights granted by charter to the master, wardens, and commonalty of the "glito of the mystery of Founders of the City of London. pany. 68. Nothing in this Act shall prohibit, defeat, injure, or lessen the right of „ . . the mayor and commonalty and citizens of the City of London, or of the lord i^n'don?' mayor of the City of London for the time being, with respect to the stamping or sealiug of weights and measures, or with respect to the gauging of wine or oil, or other gaugeable liquors. 69. Nothing in tjus Act shall extend to supersede, limit, take away, lessen, 4°*.?°'?? or prevent the authority which any person or body politic or corporate, or power of the any person appointed at any court leet for any hundred or manor, or any leet jury, &o. jury or ward inquest, may have or possess for the examining, regfulating, seizing, breaMng, or destroying a.ny weights, balances, or measures within their respective jurisdictions, and for the purposes of this section the court of burgesses of the City of Weatminster shall be deemed to be a body politic, and nothing in this Act shall be deemed to repeal or supersede the Acts relating to that court, or lessen, dimioish, or alter the powers of the same. 70. In this Act, unless the context otherwise requires, — Definitions: The expression "the Summary Jurisdiction Act" means the Act of the "Summary session of the eleventh and twelfth years of the reign of her present Jurisdiction Majesty, chapter forty-three, intituled "An Act to facilitate the per- Act:" formanoe of the duties of justices of the peace out of sessions within England and Wales with respect to summary convictions and orders," inclusive of any Acts amending the same : The expression "court of summary jurisdiction " means any justice or "Court of justices of the peace, metropolitan police magistrate, stipendiary or other IfS""^ juris- magistrate or officer, by whatever name called, to whom jurisdiction is "™°° '• given by the Summary Jurisdiction Act or any Acts therein referred to : The expression " quarter sessions " includes general sessions : " Quarter ses- OChe expression "Treasury" means the Commissioners of her Majesty's ^0™ = " Ti'easury: "Treasury:" The expression "person" includes a body corporate : "Person:" The expression "stamping" includes casting, engraving, etching, brand- "stamping:" ing, or otherwise marking, in such manner as to be so far as practicable indelible, and the expression "stamp" and other expressions relating thereto shall be construed accordingly : The expression "coin weight" means a weight used or intended to be "Coin weight:" used for weighing coin : The expression "Weights and Measures Act, 1835," means the Act of the "Weights and fifth and sixth years of the reign of King William the Fourth, chapter ^t^V'^ ^'*< sixty-three, intituled " An Act to repeal an Act of the fourth and fifth year of his present Majesty, relating to weights and measures, and to make other provisions instead thereof." rv. — Application op Act to Sootlanb. This Act shaU apply to Scotland, with the following modifications : — 71. In the application of Uiis Act to Scotland, the expression "rents and Application of imperial weights 1042 41 & 42 TicT. CAP. 49. and measurea to tolls, &c. Recovery and application of 27 & 28 Vict. c. 63. Appeal. Definitions as regards Scot- land. 27 & 28Tict. c. 53. Power of sherifl. tolls" includes all stipends, feu duties, customs, casualties, and other demands whatsoever payable in grain, malt, or meal, or any other com- modity or thing. The fiars prices of aU grain in every county shall be atruck by the imperial quarter, and all other returns of the prices of grain shall be set forth by the same, without reference to any other measure whatsoever. Any person who acts in contravention of this provision shall be liable to a fine not exceeding five pounds. 72. AU offences imder this Act which may be prosecuted, and all fines and forfeitures under this Act which may be recovered on summary conviction, may in Scotland be prosecuted or recovered, with expenses, before the sheriff or sheriff substitute or two or more justices of the peace of the county, or the magistrates of the burgh wherein the offence was committed or the offender resides, at the instance either of the procurator fiscal or of any person who prosecutes. Every person found liable in Scotland in any fine recoverable summarily under tiiis Act shall, failing payment thereof immediate or within a specified time, as the case may be, and expenses, be liable to be imprisoned for a term not exceeding sixty days, and the conviction and warrant may be in the form number three of Schedule K. of the Summary Procedure Act, 1864. All fines and forfeitures so recovered, subject to any payment made to the informer, shall be paid as follows : (a) To the Queen's and Lord Treasurer's Remembrancer, on behaU of her Majesty, when the court is the sheriff court : (b) To the collector of county rates, in aid of the county general assess- ment, when the court is the justice of the peace court : (c) To the treasurer of the burgh, in aid of the funds of the burgh, when the court is a burgh court : (d) To the treasurer of the board of police, or commissioners of police, in aid of the police funds, when the court is a police court. 73. An appeal against a conviction under this Act in Scotland shall be to the Court of Justiciary at the next circuit court, or where there are no cir- cuit courts, to the High Court of Justiciary at Edinburgh, and not other- wise, and such appeal may be made in the manner and under the rules, limitations, and conditions contained in the Act of the twentieth year of the reign of Eing George the Second, chapter forty-three, intituled "An Act for taking away and abolishing heritable jurisdictions in Scotland," or as near thereto as circumstances adrait ; vpith this variation, that the appellant shall find caution to pay the fine and expenses awarded against him by the conviction or order appealed from, together with any additional expenses awarded by the court dismissing the appeal. 74. In the application of this Act to Scotland,— The expression " enter into a recognizance" means grant a bond of caution : The expression ' ' any court of record ' ' includes the Court of Session and the ordinary sheriff court : The expression "burgh" shall include royal burgh and parliamentary burgh : The expression "plaintiff" means pursuer, and the expression "defen- dant " means defender : The expression " solicitor " means writer or agent : The expression "Summary Jurisdiction Act" means the Summary Procedure Act, 1864, inclusive of any Act amending the same. 75. A sheriff or sheriff substitute shall have the same power in relation to a local comparison of standards, and to the inspection comparison seizure and detention of weights and measures, and to entry for that purpose, as is given by this Act to a justice of the peace. Contracts to be made by deno- minations of imperial weight, otherwise to be void. V. — Application of Act to Ieelaot). This Act shall apply to Ireland with the following modifications : — 76. In Ireland every contract bargain sale or dealing — For any quantity of corn, grain, pulses, potatoes, hay, straw, flax, roots, carcases of beef or mutton, butter, wool, or dead pigs, sold, delivered, or agreed for ; Or for any quantity of any other commodity sold, delivered, or agreed for Weights and Measures Act, 1878. 1043 by weight (not being a conunodity which may by law be sold by the troy ounce or by apothecaries weight), shall be made or had by one of the following denominations of Imperial weight ; namely : — the ounce avoirdupois ; the imperial pound of sixteen ounces ; the stone of fourteen pounds ; the quarter-hundred of twenty-eight pounds ; the half -hundred of fifty-six pounds ; the hundredweight of one hundred and twelve pounds ; or the ton of twenty hundredweight ; and not by any local or customary denomination of weight whatsoever, otherwise such contract bargain sale or dealing shall be void : Erjvided always, that nothing in the present section shall be deemed to prevent the use in any contract bargain sale or dealing of the denomination of the quarter, half, or other aliquot part of the ounce pound or other denomination aforesaid, or shall be deemed to extend to any contract bargain sale or dealing relating to standing or growing crops, . 77. In Ireland every article sold by weight shall, it weighed, be weighed Mode of in full net standing beam ; and for the purposes of every contract bargain ■weighing, sale or dealing the weight so ascertained shall be deemed the true weight of the article, and no deduction or allowance for tret or beamage, or on any other Deduotiona account, or under any other name whatsoever, the weight of any sack vessel Prohibited, or other covering in which such article may be contained alone excepted, shall be claimed or made by any purchaser on any pretext whatever under a penalty not exceeding five pounds. A proceeding for the recovery of a penalty under this sectjon shall be begun within three mouths after the offence is committed. 78. (1.) The local authority in Ireland shall provide one complete set of Providingof local standards for their county or borough ; also so many copies in ^^ s^^ iron or other sufficient material of the local standards. standards. (2.) The said copies of the local standards when duly verified as herein- after mentioned shall bo the local sub- standards, and shall be used for the verification of weights and measures brought by the public for verification as if they were local standards. (3.) Not less than one set of local sub-standards, and one set of accurate scales, shall be provided for each petty sessions district in a county, and not less than two such sets shall be provided for a borough. (4.) The local authority shall have the local standards from time to time duly compared and re -verified in manner directed by this Act. (S.) The Commissioners of the Dublin Metropolitan Police shall not be under any obligation to provide local standards, but they may, with the assent of the Chief Secretary or Under-Secretary to the Lord Lieutenant, procure such sub-standards scales and stamps as they think necessary for the purposes of this Act in the district for which they are the local authority. 79. In Ireland, in every year — Inquiry by judge (a) In the case of a ooimty, the judge of assize at the first assizes held 9* ^si^e and for the county by inquky of the foreman of the grand jury ; qXter^^iona and as to provision (b) In the case of every borough in a county, the recorder of the of local borough, or, if there be no recorder, the chairman of the quarter gj|^^^|^5a sessions for that county at the quarter sessions, held next after the twenty-fifth day of March, shall inquire whether one complete set of local standards, and a sufficient number of local sub-standards of weights and measures, and a sufficient number of scales and stamps (for verification), have been provided in such county or in such borough. If it appear to the judge or chairman upon such inquiry that the same have not been so provided, he shall forthwith order the proper ofBoer to provide a complete set of local standards and such sub-standards scales and stamps as appear to the judge or chairman making the order to be sufficient for the purposes of this Act, and that order shall have the effect in the case of a county of a presentment on the county for, and in the case of a borough, of an order on the council of the borough to raise by way of rate, the sum VOL. II.— s. 3 z 1044 41 & 42 Vict. cap. 49. Expenses of ex- officio inspectors. Ex-officio in- spectors of weights and measures. Custody and use of local standards. Custody and periodical veiiJi- cation of local sub-standards. necessary to execute the order, and the said of&oer shall within three months after he receives the order fully execute the same, and in default shall be liable to a fine not exceeding twenty pounds. The proper officer shall, in the case of a county, be the treasurer of the county, and in the case of a borough, the town clerk or other proper officer of the borough. 80. Expenses incurred by anymember of the Eoyal Irish constabulary as an ex-offioio inspector of weights and measures in the execution of this Act shall be payable to such inspector by the person acting as treasurer of the local authority of the district on presentation of accounts of such expenses, to be fur- nished quarterly certified to be correct by the county inspector of the county. The secretary of every grand jury being a local authority under this Act shall, at each assizes or presenting term, and the clerk of every other local authority shall once ia every year lay before each such grand jury or other local aufliority an estimate of the sum which may appear to be necessary to meet such expenses until the next assizes or presenting term, or for the ensuing year ; and every such grand jury or other local authority shall, without previous application to presentment sessions or other preliminary proceedings, present in advance to the person acting as treasurer the sum specified in such estimate, to be raised and paid out of the local rate ; and if the sum so raised proves more than sufficient for the purpose, the balance shall be carried to the credit of the local rate by the person acting as treasurer, and if the sum so raised proves insufficient, the person acting as treasurer shall apply for payment of such expenses any other available funds in his hands. 81. NothiQg in this Act shall authorise the local authority in Ireland, except the local authority of the borough of Dublin, to appoint inspectors of weights and measures, but such head or other constables in each petty sessions district as may be from time to time selected by the inspector general of constabulary, with the approval of the Lord Lieutenant, shall be ex-officio inspectors of weights and measures under this Act within that district, and shall perform their duties under this Act under the direction of the justices of petty sessions, without fee or reward, and notwithstanding any manorial jurisdiction or claim of jurisdiction within such district : Provided that if within one month from the date of such selection the justices signify their disapproval of the selection of any head or other constable, another selection ^all be made by the same authority, subject to the same conditions, and the inspector general of constabulary shall within three days after any selection has been made in a petty sessions district, give or cause to be given to the clerk of that district notice of such selection, and the clerk shall immediately make known the said selection to the justices of the district. An ex-officio inspector of weights and measures may exercise, without any authority from a justice of the peace, the powers given by this Act to an inspector of weights and measures having sudi authority. !m the district in which the commissioners of the Dublin metropolitan police are the local authority under this Act, such of the superintendents inspectors or acting inspectors of the said police as may be selected by the local authority with the approval of the Lord Lieutenant shall be ex-officio inspectors of weights and measures within the said district («). 82. The local standards of every county or borough in Ireland shall be in, the custody of such sub-inspector of constabulary as may be from time to time appointed for that county or borough by the inspector-general of oonstabiiary, with the approval of the Lord Lieutenant. Such sub-inspector shall, subject to such regulations as the inspector general of constabulary, with the approval of the Lord Lieutenant, from time to time makes, compare with the local standards in his custody, and adjust and verify the local sub-standards sent to hun for the purpose, and when the same are correct shall stamp the same with a stamp of verification, and for the purpose of such verification and stamping, and of the verification of local standards, such sub-inspector of constabulary shall be deemed to be an inspector of weights and measures appointed under IMs Act. 83. The local sub- standards shall be deposited in the custody of the ex- offioio inspector of weights and measures, and shall at least once in every year, and also at other times when required by the county inspector of con- {a) Amended: 52 & 53 Vict. o. 21, s, 19. Weights and Measures Act, 1878, 1045 stabulary of the county, or by the justices in petty sessions of the county, be compared with the local standarda of the county and verified, and when so verified shall untU the expiration of one year or any shorter period at which the next comparison of the same under this section is made be deemed to be local sab-standaroii and be valid local standards for the purpose of the comparison by way of verification or inspection of weights and measures under this Act. The sub-standards provided by the commissioners of the DubUn metropo- Utau poUoe shall be verified by comparison with the local standards of the city of Dublin, as directed by this section, with this qualification, that the said commissioners, and not the county inspector or the justices, shall have authority to require the same to be verified oftener than once a year. Any person who uses any sub-8tanda,rd for any purpose other than that authorized hj this Act shall be liable to a fine not exceeding five pounds. 84. For the purpose of the prosecution of oft'ences and the recovery of Eooovciy of fines under this Act, in Ireland, — ^'^^' ^''• (1.) The expression "Sununary Jurisdiction Acts" in this Act means, within the police district of Dublin metropolis, the Acts regulating the powers and duties of justices of the peace for such district, or of the police of such district, and elsewhere in Ireland the Potty l* ^ 15 Vict. Sessions (Ireland) Act, 1851, and any Act amending or affecting °' ^'^' the same ; and (2.) A court of summary jurisdiction when hearing and determining an in- formation or complaint in any matter arising under this Act shall be constituted within the police district of Dublin metropolis of one of the divisional justices of that district sitting at a police court within the district, and elsewhere of a stipendiary magistrate sitting alone, or with others, or of two or more justices of the peace sitting in petty sessions at a place appointed for holding petty sessions ; and (3.) Appeals from a court of summary jurisdiction shall lie in the manner and subject to the conditions and regulations prescribed in the twenty-fourth section of the Petty Sessions (Ireland) Act, 1851, 14 & 15 Vict, and any Acts amending the same. "• ^^' 85. In this Act, unless the context otherwise requires. Definitions. The expression "Lord Lieutenant " means the lieutenant or oiher chief governor or governors of Ireland for the time being : The expression " treasurer " includes the finance committee and the secre- tary of the grand jury for the county of Dublin. VI. — ^RepeaIi. 86. The Acts mentioned in the first part of the Sixth Schedule to this Act Repeal, are hereby repealed to the extent in the third column of that schedule men- tioned ; subject to the following qualification, that is to say, that so much of the said Acts as is set forth in the second part of that schedule shall be re-enacted (i) in manner therein appearing, and shall be in force as if enacted in the body of this Act. Provided that, — (1.) Every inspector appointed in pursuance of any enactment hereby repealed shaE continue in office as if he had been appointed in pursuance of this Act ; and (2.) Ajiy person holding office as examiner of weights and measures under any enactment repealed by this Act, and not being an inspector of weights and measures within the meaning of this Act, shall con- tinue in office and receive the same remuneration, and have the same powers and duties and be subject to the same liabilities and to the same power of dismissal as if tins Act had not passed. (3.) Every notice published in a Gazette in relation to coin weights in pursuance of any enactment hereby repealed shall continue in force. (4.) All weights and measures duly verified and stamped in pursuance of any enactment hereby repealed, shall continue and be as valid as if they had been verified and stamped in pursuance of this Act, and that although such weights or measures could not have been veri- fied and stamped in pursuance of this Act ; and all weights and measures which at the commencement of this Act may lawfully be used without being stamped with a stamp of veriftcation or a stamp /*) See 52 & 53 Vict. o. 21, s. 36, and 5th Sched. 3z2 1046 41 & 42 Vict. cap. 49. of their denonmiation, and wliioli are required by tliis Act to be stamped with, such a stamp, may, notwithstandmg they are not so stamped, he used until the expiration of six: mouths after the commencement of this Act, without being subject to be seized or forfeited, and without rendering the person using or having possession of the same subject to any fine. (S.) This repeal shall not affect — (a) The past operation of any enactment hereby repealed, nor anything duly done or suilered under any enactment hereby repealed ; nor (b) Any right, privilege, obligation, or KabiUty acquired, accrued, or incurred under any enactment hereby repealed ; nor (c) Any penalty, forfeiture, or punishment incurred in respect of any ofience committed against any enactment hereby repealed ; nor (d) Any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punish- ment as aforesaid ; and any such investigation, legal prooeeduig, and remedy may be carried on as if this Act had not passed ; and (6.) This repeal shaU not revive any enactment, right, office, privUege, matter, or thing not in force or existing at the commencement of this Act. SCHEDULES. Sections 4, 10, 13, 64. FIRST SCHEDULE. PART I. ImPEEIAIj StA17DA£D9. The following standards were constructed under the direction of the Com- missioners of her Majesty's Treasug;, after the destruction of the former imperial standards in the fire at the Houses of Parhament. The imperial standard for determining the length of the imperial standard yard is a soKd square bar, thirty-eight inches long and one inch square in transverse section, the bar being of bronze or gun-metal ; near to each end a cylindrical hole is sunk (the distance between the centres of the two holes being thirty-six inches) to the depth of half an inch, at the bottom of this hole is inserted in a smaller hole a gold plug or pin, about one-tenth of au inch in diameter, and upon the surface of this pin there are out three fine lines at intervals of about the one-hundreth part of an inch transverse to the axis of the bar, and two Hnes at nearly the same interval parallel to the axis of the bar ; the measure of length of the imperial standard ya.rd is given by the interval between the middle transversal line at one end and the middle transversal line at the other end, the part of each Une which is employed being the point midway between the longitudinal lines ; and the said points ' are in this Act referred to as the centres of the said gold plugs or pins ; and such bar is marked "copper 16 oz., tin 2|, zinc 1. Mr. Baily's metal. No. 1 standard yard at 62''-00 Fahrenheit. Cast in 1845. Troughton & Simms, London." The imperial standard for determining the weight of the imperial standard pound is of platinum, the form being that of a cylinder nearly 1-35 inch in height and 1-15 inch in diameter, with a groove or channel round it, whose middle is about 0"34 inch below the top of the cylinder, for insertion of the points of the ivory fork by which it is to be lifted ; the edges are carefully rounded ofB, smd, such standard pound is marked, P.S.' 1844, 1 lb. Sections 8, as, 64. PART II. Paeliamentaet Copies of Imseeiai, Stanbaeds. The.foUowing copies of the standards above mentioned in part one of this Schedule were constructed at the same time as the above standards. They are of the same ooustructiou.and form as the above standards, and they are respectively marked and deposited as foUows : — (1.) One of the copies of the imperial standard for determining the "Weights and Measures Act, 1878. 1047 imperial standard yard, being a bronze bar, marked "copper 16 oz., tin 2i, zinc 1. Mr. Baily's metal. No. 2. Standard yard at eio-g-t Fairenlieit. Cast in 1845. Troughton & Simms, London ;" and one of the copies of the imperial standard for determining the imperial standard pound marked No. 1., P.O. 1844, 1 lb., have been deposited at the Eioyal Mint ; (2.) One other of the copies of the imperial standard for determining the imperial standard yard, being a bronze bar, marked "copper 16 oz., tin 2 J, zinc 1. Mr. Baily's metal. No. 3. Standard yard at 62°-10 Pahrenheit. Cast in 1846. Troughton & Simms, London," and one other of the copies of the imperial standard for determining the imperial standard pound marked No. 2., P.O. 1844, 1 lb., have been delivered to the Royal Society of London ; (3.) One other of the copies of the imperial standard for determining the imperial standard yard, being a bronze bar, marked "copper 16 oz., tin 2i, zinc 1. Mr. Baily's metal. No. 5. Standard yard at 62''-16 Fahrenheit. Cast in 1846. Troughton & Simms, London," and one other of the copies of the imperial standard for determining tjie imperial standard pound marked No. 3., P.C. 1844, 1 lb., have been deposited in the Royal Observatory of Greenwich ; (4.) The other of the copies of the imperial standard for determining the imperial standard yard, being a bronze bar, marked "copper 16 oz., tin 2J, zinc 1. Mr. BaUy's metal. No. 4. Standard yard at 61°'98 Fahrenheit. Cast in 1845. Troughton & Simms, Loudon," and the other of the copies of the imperial standard for determining the imperial standard pound marked No. 4., P.C. 1844, 1 lb., have been immured in the New Palace at Westminster. SECOND SCHEDULE. BoASD OF Tbade Staitbasds. Stanbabds of the measures and weights following are at the commencement of this Act in use under the direction of the Board of Trade. Sections 8,64. Measitees of Length. Meastjebs of Capacity. Denomination of Standard. Denomination of Standard. MEASUEB OF LBNCHH. MEASUBES of CAPAOTiT. 100 feet. Bushel. 66 feet, or a chain of 100 links. HaU-bushel. Rod, polo, or perch. Peck. 10 feet. Gallon. 6 feet, or 2 yards. Halt- gallon. 5 feet. Quart. 4 feet. Pint. 3 feet, or 1 yard. Half-pint. 2 feet. GiU. 1 foot. Half-giU. 1 inch divided into 12 duodecimal. Quarter-gOl. 10 decimal, and 16 binary equal MEASUEES TTSED IN 'I'lLK SALE OF EBUQS. parts. Fluid ounces : — 4, 3, 2, 1. Fluid drachms : — 4, 3, 2, 1. Minims : — 30, 20, 10, 6, 4, 3, 2, 1. NoTB.— The brass gallon marked "Imperial Standard Gallon, Anno Domini mdcooxxiv.. Anno V G" Regis," which has a diameter equal to its height, and was made in pursuance of 5 Geo. 4, c. 74, s. 6, and is at the passing of this Act in the custody of the Warden of the Standards, sihaU be deemed to be a Board of Trade standard for the gallon. 1048 41 «& 42 Vict. cap. 49. Wejohts. Senomioatlon of Stasdaid. Denamination of gtandaxd. Denomination of Standaid. AVOIEDUTOIS WBISHTS. lEOT BULLION -WJamHIS. DEOTWATi OSAnr -WMSETS. 66 pounds. 500 ounces. 4,000 grains. 28 „ 400 2,000 14 „ 300 1,000 7 ;; 200 600 4 „ 100 }) 300 2 „ 50 200 1 pound. 40 ij 100 8 ounces. 30 t) 50 4 „ 20 }) 30 2 „ 10 20 1 ounce. 6 f, 10 8 drams. 4 S 4 „ 3 >> 3 2 „ 2 ») 2 1 dram. 1 ounce. 1 i » 0-5 0-5 grain. 240 grains, commonly 0-4 0-3 called 1 penuyvreigMs. 0-3 0-2 120 grains, commonly 0-2 0-1 called 6 pennywelghte. 0-1 0-05 72 grains, commonly 0-05 0-03 called 3 pennyweights. 0-04 0-02 48 grains, commonly 0-03 0-01 called 2 pennyweights. 0-02 24 grains, oonmionly 0-01 oaUed 1 pennyweight. 0-005 0-004 0-003 0-002 0-001 Coin Weiohis. Denomination of Coin. Standard Weight. wigU. Metric Weight. Gold: Five pound , Grams. 616-37239 246-54895 123-27447 61-63723 436-36363 218-18181 174-54546 87-27272 43-63636 29-09090 21-81818 14-54545 7-27272 146-83333 87-50000 43-75000 Grams, 39-94028 Two pound 15-97611 Sovereigfn 7-98805 . Half Sovereign , 3-99402 SiLTEB : Crown 28-27590 Half-crown , 14-13796 Florin , . 11-31036 Stilling 6-65518 Sixpence 2-82759 Groat, or fourpence Threepence 1-88506 1-41379 Twopence 0-94253 Penny . . , 0-47126 9-44984 5-66990 2-S3495 Bbonzk : Penny , Halfpenny Farthing ■Weights and Measures Act, 1878. 1049 THIED SCHEDULE. PART I. KeXEUO EQT7IVAI.EinS, Tablb 9f the Values of the Principal Denotninations of Measures and ■Weights on the Metric System expressed by means of Denominations of Imperial Measures and Weights, and of the Values of the Principal Denominations of Measures and "Weights of the Bnperial system expressed by means of Metric "Weights and Measures. Mbastjebb op Lbnoth. Metric Denominations and Values, Eijnivalents in Imperial Denominations. Metres. Miles. Yards. Feet. liiB. Denimnls. Myriametre , , , 10,000 1,000 100 10 1 ToT7 < e 376 11-9 lor 10,936 11-9 1,093 1 10-79 109 1 1-079 10 2 9-7079 1 3-3708 3-9371 0-3937 0-0394 Kilometre Hectometre Dekametre •••, Metre Decimetre Centimetre JWill'Tnet'-p ,11,,,,,,,,,,,., Mbabttbb of Subi'aob. Metric Denominations and "Values, Equivalents in Imperial Denominations. Square Metres. Acres. Square Yards. Decimals. Hectare, i.e., 100 Ares .... Dekare, i.e., 10 Ares Are 10,000 1,000 100 1 f 2 2280-3326 \ or 11,960-3326 1196-0333 119-6033 Centiare, i.e., xfe-Are . , , , 1-1960 Sections 18,64. Measuees of Capaoiit. Metric Denominations and Values. Equivalents in Imperial Denominations. Cubic Metres. '1 n 1 1 S ll Ejlolitre, i.e., 1,000 Litres. , Hectolitre, i.e., 100 Litres.. Dekalitre, i.e., 10 Litres .. Litre • ■., 1 ToTJ ..TtfW 3 1 3 2 2 3 1 0* 0-77 0-077 1-6077 1-76077 DeoiUtre, i.e., iV-Litre ., . , CentUitre, i.e., xJu-iLitre . . 0-176077 0-0176077 1050 41 & 42 Vict. cap. 49. Weiohts. Metric Denominations and Values. MiUier , . . . Quintal , . Myriagram Kilogram Hectogram Dekagram Grram .... Decigram Centigram Milligram Grams. 1,000,000 100,000 10,000 1,000 100 10 1 iooo Kquivalente in Imperial Denominations. IM 19 1 6 6 9 7 10 7 18 : 2 3 (or 15432-3487 grains) 3 15-04 6-304 11-8304 4-3830 . 8-4383 5-6438 0-56438 0-056438 0-0056438 0-00056438 r " ' ' ]yiEASUBE8 OB' LeNOTB > 1 . 1 . • Imperial Measures. Equivalents in Metric Measures. Millimetre. Decimetre. • ' ' Metre. ' " Kilometre. = 25-39954 = 3-04794 = 0-30479 0-91438 1-82877 5-02911 20-11644 201-16437 1,609-31493 I'oot or 12 inclies Tabtp, or 3 feet, or 36 Inclies Fathom, or 2 yards, or 6 feet Pole or 5 J yards Chain, or 4 poles, or 22 yards Furlong 40 poles, or 220 ^ yards ; — 0-20116 Mile, 8 furlongs, or 1,760 — 1-60931 Measubbs oi' Sttepaob. Equivalents in Metric Measures. Imperial Measures. Square Decimetres. Squaxe Metres. Ares. Hectares. Square inch = 0-06451 = 9-28997 = 83-60971 = 0-092900 =""0-836097 =25-291939 = 10-116776 Square foot or 144 square Square yard, or 9 square feet, or 1,296 square Pole or perch, or 30| Bood, or 40 perches, or 1,210 square yards .... AoEB, or 4 rood!s, or 4,840 square yards Square mile or 640 acres = 0-40467 = 268-98945 Weights and Measubes Act, 1878. 1051 Measubes op Ca? aoitt. Equivalents in Metric Kea«nres. Deoilitree. Litres. DekaUtres. Hectolitres. Gill = 1-41983 = 5-67932 1 • = 0-14198 = 0-66793 = 1-13587 = 4-64346 = 9-08692 = 0-90869 = 3-63477 Quart or 2 pints G-AT.T,ON or 4 quarts .... Peck or 2 gallons Bushel, or 8 gallons, or Quarter or 8 bushels .... = 2-90781 Cttbio Meastjee. Equivalents in Metric Measures. Imperial Measures. Cubio Centimetres. Cubio Decimetres. Cubio Metres. 16-38618 28-31531 Cubic foot or 1,728 cubic inches 0-76451 Weiohts. Equivalents in Metric Weights. Imperial Weights. Grams. Dekagrams. Kilograms. Mi'llier or Metric Ton. Grain = 0-06479895 = 1-77185 = 28-34954 =453-69265 = 31-103496 = 2-83496 = 45-35927 = 3-11035 = 0-45359 = 50-80238 = 1016-04754 Dram *, Ounce, avoirdupois, or 16 drams, or 437-5 Pouiii), or 16 ounces, or 266 drams, or 7,000 grains Hundredweight or 112 lbs Tonor20cwt Ounce, troy, or 480 = 1-01605 1062 41 & 42 Vict. cap. 49. Sections 88,64. PART 11. Mhtbio SlAirOAIlDS. List of metric standards in the custody of the Board of Trade at the passing of this Act : Measmes of Length. Double metre or 2 metres, Meibe or 1 metre. Decimetre or 0"1 , , ,, ■ Centimetre or 0"01 . „ Millimetre or O'OQl „ 20, 10, 5, 2 Mlograms. KiLOOEAH. 500, 200, 100, 60, 20, 10, 6, 2, 1 grams. 5, 2, 1 decigrams. S, 2, 1, 0*5 milligrams. Measures of Capacittf. 20, 10, 5, 2 litres. LlTEE. 0-5 litre or 500 cubic centimetres 0-2 „ 200 0-1 100 0-05 „ 50 0-02 „ 20 0-01 „ 10 0-005 ,, 6 . . 0-002 „ 2 0-001 „ 1 Sections 40, 50, 64. Area. County FOURTH SCHEDUIiE. Local AiiTHOBmEB. ENGLAND. County of the city of London. Borough , Local Authority. The' justices in general or quarter sessions assem- bled. The court of the Lord Mayor and aldermen of the city. The mayor, aldermen, and burgesses acting by the council. Local Bate. The county rate. The consolidated rate. The borough fund and borough rate. SCOTLAND. County Burgh , , The justices in general or quarter sessions as- sembled. The magistrates The county general as- sessment. The police assessment. Weights and Measures Act, 1878. IRELAOT). 1053 Area. liOcal Autbority. Local Kate. Countv t ( • The grand jury acting at any assises or pre- senting term. The Commissioners of the Dublin metropoli- tan police. The presentments to be made by the grand The funds applicable to defray the expenses of the Dublin metropo- litan police. Snoh portion of the po- lice district of Dublin metropolis as is without the municipal houn- Aavy of the borough of Dublin. council, or if the bo- roughis liable to county cess and no rate is levied in the borough, the county cess of the county in which the borough or the larger part thereof is situate. Notes. For the purposes of this schedule — The expression " county," as regards England, does not include a coimty of a city or a county of a town, but includes every riding, division, or parts of a coun^ having a separate court of quarter sessions. The Soke of Peter- borough shall be deemed to be a county, but every other liberty of a county not forming part of the City of London shall be deemed to form part of the county in wmch the same is situate or which it adjoins, and if it adjoins more than one county, then of the county with which it has the longest common boundary. The expression "borough," as regards England, means any place for the time being subject to the Municipal Corporation Act, 1836, and any Act amending the same, which has a separate commission of the peace. The expression "county," as regards Ireland, includes a riding and a oounly of a city and a county of a town. The county of Dublin shall be deemed not to include any portion of the police district of Dublin metropolis. The two constabulary districts of the county of Gralway shall respectively be deemed to be counties for the purposes of this Act. The expression "borough," as regards Ireland, means any borough or town corporate. In the borough of Dublin the rate to be levied by the council shall mean the improvement rate. [FIFTH SCHEDULE {a). EEEa or Inspbotoes. The following fees are the maximum fees which, unless altered as authorised by this Act, may be taken by any inspector of weights and measures appointed under this Act. For comparing and stamping all brass weights : — «. d. Each half hundredweight 9 Each quarter of a hundredweight ' 6 Each stone :■■■■■. " '^ Each weight under a stone to a pound inclusive 1 Each weight under a pound OJ Each set of weights of a pound and under 2 (a) Now repealed: 62 & 63 Vict. c. 21, s. 36. Sections 47, 64. 1054 41 & 42 Vict, gap, 49, Section 64, 86. For comparing and stamping all iron weigihts, or weights of other desorip- tions not made of brass : — s. d. Each half hundredweight 3 Each quarter of a hundredweight 2 Each stone i Each weight under a stone J Each set of weights of a pound and under 2 For comparing and stamping all wooden measures : — a. d. Each bushel 3 Each haM bushel , 2 Each peck, and all under 1 Each yard OJ For comparing and stamping all measures of capacity of liquids made of copper or other metal : — ' s.'d. Each four gallon .,,,,,..,.,'. ".,■.,.'■,■.'.. 9 Each two gallon 4 Each gallon : 2 Each half gallon 1 Each quart and under , , OJ (b).] SIXTH SCHEDULE. FiESi Pabt. Enactments repealed. A description or citation of a portion of an Act is inclusive of the word, section, or other part first or last mentioned, or otherwise referred to as forming the beginning or as forming the end of the portion described in the description or citation. ' Portions of Acts which have already been specifically repealed are in some instances included in the repeal in this schedule, in order to preclude hence- forth the necessity of looking back to previous Acts. Session and chapter. 31 Edw. '3, St. 1 6 Anne, o. 11 (5 & 6 Anne, c. 8. in BufEhead.) 15 Geo. 2, c. 20 . , 35 Geo. 3, c. 102 Title or short title of Act. The statute made at Westminster on the Monday next after the feast of Easter, in the thirty-first year, statute the first. An Act for the union of the two kingdoms of England and Scot- land. An Act to prevent the counter- feiting of gold and gUver lace, and for settling and adjusting the proportions of fine silver and sUk, and for the better making of gold and silver thread. An Act for the more effectual prevention of the use of defec- tive weights, and of false and unequal balances. ^Extent of repeal. Chapter two. Article seventeen. Section five. The whole Act. (J) This schedule is repealed: 62 & 63 Vict. c. 21, s. 36. Weights and Measures Act, 1878. 1055 Besiion and chapter. iGeo. 3, 0. 86.... 37 Geo. 3, u. 143 . 56 Geo. 3, o. 43 . , 6 Geo. 4, u. 74 6 Geo. 4, u. 12 . . . . 6 & 6 Will. 4, 0. 63 16 & 17 Viet. 0. 29 16 & 17 Viot. 0. 79 18 & 19 Vict. 0. 72 22 & 23 Vict. c. 56 23&24Viot. 0.119 24 & 25 Viot. 0. 75 Title or short title of Act. An Act for the better regulation of mills. An Act to explain and amend an Act made in the thirty-fifth year of the reign of his present Majesty, intitmed "An Act for the more effectual prevention of the use of defective weights and of false and unequal balances." An Act for the more effectual prevention of the use of false and deficient measures. An Act for ascertaining and establishing uniformity of weights and measures. An Act to prolong the time of the commencement of an Act of the last session of Parliament for as- certaining and establishing uni- formity of weights and mea- sures, and to amend the said Act. . An Act to repeal an Act of the fourth and fifth year of his pre- sent Majesty relating to weights and measures, and to make other provisions instead thereof. An Act for regulating the weights used in sales of bulJiou. An Act for making sundry pro- visions with respect to municipal corporations in England. An Act for legalizing and pre- serving the restored standards of weights and measures. An Act to amend the Act of the fifth and sixth years of king WiUiam the Fourth, chapter sixty-three, relating to weights and measures. An Act to amend the law relating to weights and measures in Ire- land. An Act for amending the Muni- cipal Corporations Act. Extent of repeal. Section one from " and any person or persons ap- pointed " down to " with respect to weights and balances," and from " and every miller or other persons as afore- said, in whose miU shall be found any weight or weights" to the end of the sec- tion. The whole Act. The whole Act. The whole Act, except section twenty-five. The whole Act. The whole Act. The whole Act. Section five. The whole Act. The whole Act. The whole Act. Section six. 1056 41 & 42 TicT. CAP. 49. Session and chapter. 25 & 26 Vict. ^. 76 25 & 26 Vict. c. 102 27 & 28 Vict. 0. 117 29 & 30 Vict. u. 82 30 & 31 Vict. c. 94 33 & 34 Viot. u. 10 Title or short title of Act. The "Weights and Measures (Ire- land) Amendment Act, 1862. The Metropolis Amendment Act, 1862. The Metric Weights and Measures Act, 1864. An Act to amend the Acts relating to the standard -weights and measures, and to the standard trial pieces of the coin of the realm. An Act to provide for the inspec- tion of weights and measures, and to regtilate the law telaiting thereto, in certain parts of the police district of Dublin metro- . polls. The Coinage Act, 1870 Extent of repeal. The whole Act ex- .cept section two, and Part three and so much of Part four as re- lates to Part three. Section one hundred and one. The whole Act. The whole Act. The whole Act. Section serenteen, from the begin- ; ning of the section down to "weight of and for weigh- ing such coin," and from " all weights which are not less in weight," to the end of the section. Sale of coals hy weight and not by measure. Supply of weigh- masters in Ire- land with scales, and copies of local standards. Second Pabt. Enactments re-enacted. 5 & 6 Will. 4, c. 63, b. 9. [All coals, slack, culm, and cannel of every description shall be sold by weight, and not by measure. Every person who sells any coals, slack, cuhn, or cannel of any description by measure, and not by weight, shall be liable on summary conviction to a fine not exceeding forty shillings for every such sale (c).] 5 & 6 Will. 4, u. 63, =. 26. In Ireland, in every city or town, not being a county of itsdf, every person, persons, or body corporate exercising the privilege of appointing a weigh-master, shall supply him with accurate scales, and with an accurate set of copies of the local standards, and in default shall be hable on summary conviction to a fine of twenty pounds, and the accuracy of such set of copies shall be certified under the hand of some inspector of weights and measures. They shall also, once at least in every five years, cause such copies to be readjusted by comparison with some local standards whiqh have been verified by the Board of Trade, and in default shall be liable on summary conviction to a fine of five pounds. Such set of copies shall for the purpose of comparison and verification be considered local standards, and shall be used for no other purpose whatever, and if they are so used the person using the same shall be liable on summary conviction to a fine of five pounds. (c) Now repealed : 62 & 53 Vict. c. 21, s. 36, and 5th Sched, Companies A,ct, 1879, 1057 22 & 23 Vict. u. 56, ss. 6, 8, 12. The owners or managers of any public market in Great Britain where Owners of goods are exposed or kept for sale shall provide proper scales and balances ™™kets to ^o- and weights and measures or other machines, for the purpose of weighing or ^ scales, &o. measuring all goods sold, offered, or exposed for sale in any such market, and shall deposit the same at the office of the clerk or toU collector of such market, or some other convenient place, and shall have the accuracy of all such scales and balances and weights and measures or other machines tested at least twice in every year by the inspector of weights and measures of and for the county, borough, or place where the market is situate ; All expenses attending the purchase, adjustiug, and testing thereof shall he paid out of the moneys collected for tolls in the market ; Such clerk or toll collector shall at aU reasonable times, whenever called upon so to do, weigh or measure all goods which have been sold, offered, or exposed for sale in any such market, upon payment of such reasonable sum as may from time to time be decided upon by the said owners or managers, subject to the approval and revision of the justices in general or quarter sessions assembled if such market be in England, or of the sheriff if it be in Scotland ; For every contravention of this section the offender shaU be liable, on summary conviction, to a fine not exceeding five pounds. 22 & 23 Vict. c. 56, ss. 7, 8, 12. Every clerk or toU Collector of any public market in G-reat Britain, at aU Power to clerks reasonable times, may weigh or measure aU goods sold, offered, or exposed ^^^^^'^j? for sale in any such market ; and if upon such weighing or measuring any eoia.^&of md such goods are found deficient in weight or measure or otherwise contrary to if weighing the provisions of this Act, such clerk or toll collector shall take the necessary found deficient proceedings for recovering any fine, to which the person selling, offering, or offeSS!"" exposing for sale, or causing to be sold, offered, or exposed for sale, such goods, is liable, and the court convicting the offender may award out of the fine to such clerk or toll collector such reasonable remuneration as to the court seems fit. For every offence against or disobedience to this section the offender shall be liable on sunmiary conviction to a fine not exceeding five pounds. 42 & 43 ViOT. C. 72. An Act to provide for the re-hearing of Investigations into Shipping GasualMea, and to amend the Rules as to the mode of holding, and procedure at, smh Investigations. [I5th August, 1879.]' 42 & 43 ViOT. 0. 76. An Ad to amend the Lawwith respect to the Liability of Memhers of Banhinq and other Joint Stock Companies; and for other purposes. [_l6th August, 1879.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Companies Act, 1879. Short title. 8, This Act shall not apply to the Bank of England. ~ Act not to apply to Bank of England. 1058 42 & 43 Vict. cap. 76. Act to be con- strued mth 25 & 26 Vict. 0..89, soft 81 Vict. c. 131, and 40 & 41 Vict. 0.26. Begistration anew of com- pany. 25 & 26 Viet, c. 89. 30 ■& 31 Vict. 0. 131. 40 & 41 Vict. 0.26. 42 & 43 Vict. 0.76. 26 & 26 Vict. 0.89. Beserre capital of company, how provided. 25 & 26 Vict. 0.89. 30 & 31 Vict. 0. 131. 40 & 41 Vict. 0. 26. 42 & 43 Vict. 0. 76. 26 & 26 Vict. c. 89, s. 182, repealed, and liability of bank of issue un- limitedin respect of notes. Audit of accounts of banJmig com- panies. 3. This Act shall, so far as is consistent with the tenor thereof, he con- strued as one -vrith the CompanieB Acts, 1862, 1867, and 1877, and those Acts together with this Act may he referred to as the Companies Acts, 1862 to 1879. 4. Subject as in this Act mentioned, any company registered before or after the passing of this Act aa an unlimited company may register under the Companies Acts, 1862 to 1879, as a limited company, or any company already registered as a limited company may re-register under the provisions of this Act. The registration of an unlimited company as a limited company in pur- suance of this Act shall not affect or prejudice any debts, liabilities, obliga- tions, or contracts incurred or entered into by, to, with, or on behalf of such company prior to registration, and such debts, liabilities, contracts, and obligations may be eiuorced in manner provided by Part VII. of the Com- panies Act, 1862, in the case of a company registering in pursuance of that Part. 5. An unlimited company may, by the resolution passed by the members when assenting to registration as a limited company under the Companies Acts, 1862 to 1879, and for the purpose of such registration or otherwise, increase the nominal amount of its capital by increasing the nominal amount of each of its shares. Provided always, that no part of such increased capital shall he capable of being called up,, except in the event of and for the purposes of the company being wound up. And, in cases where no such increase of nominal capital may be resolved upon, an unlimited company may, by such resolution as aforesaid, provide that a portion of its uncalled capital shall not be capable of being called up, except in the event of and for the purposes of the company being wound up. A Umited company may by a specisu. resolution declare that any portion of its capital which has not been already called up shall not he capable of being called up, except in the event of and for the purpose of the company being wound up ; and thereupon such portion of capital shall not be capable of being called up, except in the event of and for the purposes of the company being wound up. 6. Section one hundred and eighty-two of the Companies Act, 1862, is hereby repealed, and in place thereof it is enacted as follows : — A bank of- issue registered as a limited company, either before or after the passing of this Act, shall not be entitled to limited liabiEty in respect of its notes ; and the members thereof shall cpntmue liable in respect of its notes in the same manner as if it had been registered, as an unlimited company ; hut in case the general assets of the company are, in the event of the company being wound up, insufiioient to satisfy the claims of both the note-holders and the general creditors, then the members, after satisfying the remaining demands of the note-holders, shall h'e Matte to contribute towards payment of the debts of the general creditors a sum equal to the amount received by the note-holders out of the general assets of the company. For the purposes of i£is section the expression " the general assets of the company" means the funds available for payment of the general creditor as well as the note-holder. It shall be lavrf ul for any bank of issue registered as a limited company to make a statement on its notes to the effect that the limited liability does not extend to its notes, and that the members of the company continue liable in respect of its notes in the same manner as if it had been registered as an unlimited company. 7. (1.) Once at the least in every year the accounts of every banking company registered after the passing of this Act as a limited company shaU be examined by an auditor or auditors, who shall be elected annually by the " company in general meeting. (2.) A director or of&cer of the company shall not be capable of being elected auditor of such company. (3.) An auditor on quitting office shall be re-eUgible. (l.jifi ■ • • i any casual vacancy occurs in the office of any auditor the surviving auditor or auditors (if any) may act, but if there is no surviving auditor, the directors shall forthwith call an extraordinary general meeting for the pur- pose of supplying the vacancy or vacancies in the auditorship. (6.) Every auditor shall have a list delivered to Tiirn of j5l books kept by Companies Act, 1880. 1059 the company, and shall at all reasonable times have access to the boots and accounts of the company ; and any auditor may, in relation to such books and accounts, examine the directors or any other officer of the company : Provided that if a banking company has branch banks beyond the limits of Europe, it shall be sufficient if the auditor is allowed access to such copies of and extracts from the books and accounts of any such branch as may have been transmitted to the head office of the banking company in the United Kingdom. (6.) The auditor or auditors shall make a report to the members on the accounts examined by him or them, and on every balance sheet laid before the company in general meeting during his or their tenure of office ; and in every such report shall state whether, in his or their opinion, the balance sheet referred to in the report is a full and fair balance sheet properly drawn up, so as to exhibit a true and correct view of the state of the company's affairs, as shown by the books of the company ; and such report shall be read before the company in general meeting. (7.) The remuneration of the auditor or auditors shall be fixed by the general meeting appointing such auditor or auditors, and shall be paid by the company. 8. Every balance sheet submitted to the annual or other meeting of the Signature of members of every banking company registered after the passing of this Act balance sheet, as a Bmited company shall be signed by the auditor or auditors, and by the secretary or manager (if any), and by the directors of the company, or three of such directors at the least. 9. On the registration, in pursuance of this Act, of a company which has Application of been already registered, the registrar shall make provision for closing the 25 & 26 Vict, former registration of the company, and may dispense with the deUvery to so^'gx vjet him of copies of any documents with copies of which he was furnished on the c. 131, and occasion of the original registration of the company (i) ; but, save as aforesaid, 40 & 41 Vict, the registration of such a company shall take place m the same manner and "• ^^' have the same effect as if it were the first registration of that company under ^^ *^^ ^''^*- the Companies Acts, 1862 to 1879, and as if the provisions of the Acts under ^ fc'sivict. which the company was previously registered and regulated had been c. 131, contained in diSferent Acts of Parliament from those under which the 40 & 41 Vict, company is registered as a limited company. 42 &'^Vict 10. A company authorised to register under this Act may register there- c. 76. under and avail itself of the privileges conferred by this Act, notwithstanding privileges of Act any provisions contained in any Act of Parliament, royal charter, deed of available not- settlement, contract of copartnery, cost book, regulations, letters patent, or withstanding , T. . , ' . ..... "^ 1 A' Ai: ° _ coiLstitution of other instrument constituting or regulatmg the company. company. 43 ViOT. C. 19. An Act to amend the Companies Acts of 1862, 1867, 1877, and 1879. [24) Acceptance ; (o) Acceptance supr^ protest ; (d) Bills in a set. (4.) Where a foreign note is dishonoured, protest thereof is unnecessary. 1090 45 & 46 ViuT. CAP. 61. Good faith. Signature. Computation of time. "When noting equivalent to protest. Protest when notary not accessible. Dividend -war- rants may be crossed. Repeal. Savings. 33&34Viot. 0.97. 26 & 26 Vict, c. 69. Saving of Bum- mary diligence in Scotland. PAET V. SuPPLEMENTAET. 90. A thing is deemed to be done in good faitt, within the meaning of- this Act, where it is in fact done honestty, whether it is done negligently or not. 91. — (1.) Where, by this Act, any instrument or writing is required to be signed by any person, it is not necessary that he should sign it with his own hand, but it .is sufficient if his signature is written thereon by some other person, by or under his authority. (2:) In the case of a corporation, where, by this Act, any instrument or writing is required to be signed, it is sufficient if the instrument or writing be sealed with the corporate seal. But nothing in this section shaU be construed as requiring the bill or note of a corporation to be under seal. 92. Where, by this Act, the time Umited for doing any act or thing is less than three days, in reckoning time, non-business days are excluded. " Non-business days " for the purposes of this Act mean — (a) Sunday, Good Friday, Christmas Day : (b) A bank holiday under the Bank Holidays Act, 1871, or Acts amend- ing it : (o) A day appointed by Koyal proclamation as a pubUo fast or thanks- giving day. Any other day is a business day. 93. For the purposes of this Act, where a biU or note is required to be protested within a specified time or before some further proceeding is taken, it is sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding ; and the formal protest may be extended at any time thereafter as of the date of the noting. 94. Where a dishonoured bill or note is authorised or required to be protested, and the services of a notary cannot be obtained at the place where the bill is dishonoured, any householder or substantial resident of the place may, in the presence of two witnesses, give a certificate, signed by them, attesting the dishonour of the biU, and the certificate shaU in all respects operate as if it were a formal protest of the bill. The form given in Schedule 1 to this Act may be used with necessary modifications, and if used shaE be sufficient. 95. The provisions of this Act as to crossed cheques shall apply to a warrant for payment of dividend. 96. The enactments mentioned in the second schedule to this Act are hereby repealed as from the commencement of this Act to the extent in that schedule mentioned. Provided that such repeal shall not affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest. 97. — (1.) The rules in bankruptcy relating to bills of exchange, promissory notes, and cheques, shall continue to apply thereto notwithstanding anything in this Act contained. (2.) The rules of common law including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, shall continue to apply to biUs of exchange, promissory notes, and cheques. (3.) Nothing in this Act or in any repeal affected thereby shall affect — (a) The provisions of the Stamp Act, 1870, or Acts amending it, or any law or enactment for the time being in force relating to the revenue : (b) The provisions of the Companies Act, 1862, or Acts amending it, or any Afct relating to joint stock banks or companies : (c) The provisions of any Act relating to or confirming the privileges of the Bank of England or the Bank of Ireland respectively : (d) The validity of any usage relating to dividend warrants, or the indorse- ments thereof. 98. Nothing in this Act or in any repeal effected thereby shall extend or restrict, or in any way alter or affect the law and practice in Scotland in regard to summary diligence. Bills of Exchange Act, 1882. 1091 99. Where any Act or dooument refers to any enactment repealed by tMs Constrootion Act, the Act or dooument shall be construed, and shall operate, as if it re- ^^^ °^^^^ -^°'^' ferred to the corresponding provisions of this Act. 100. In any judicial proceeding in Scotland, any fact relating to a bOl of Parole evidence exchange, bank cheque, or promissory note, which is releyant to any question allowed in oer- of liability thereon, may be proved by parole evidence : provided that this moceedm^in enactment shall not in any way affect the existing law andT practice whereby Scotland. the party who is, according to the tenour of any bill of exchange, bank cheque, or promissory note, debtor to the holder in the amount thereof, may be required, as a condition of obtaining a sist of diligence, or suspension of a charge, or threatened charge, to make such consignation, or to find such caution as the Court or judge before whom the cause is depending may require. This section shall not apply to any case where the bOl of exchange, bank cheque, or promissory note has undergone the sesennial prescription. SCHEDULES. FIRST SCHEDULE. Form of protest which may be used when the services of a notary cannot be Section 94. obtained. Know all men that I, A. B. [householder], of , in the county of , in the United Kingdom, at the request of C. D., there being no notary public available, did on the day of , 188 , at , demand payment [or acceptance] of the bill of exchange hereunder written, from E. P., to which demand he made answer [state answer, if any] where- fore I now, in the presence of G. H. and J. K. do protest the said bill of exchange. (Signed) A. B. J K 1 Witnesses. N.B. — The bill itself should be annexed, or a copy of the bill and all that is written thereon should be underwritten. SECOND SCHEDULE. Enactubnts Befealed. Session and Chapter. Title of Act and extent of Bepeal. 9 Will, 3, c. 17 3 & 4 Anne, c. 8 17Gteo. 3, u. 30 39 & 40 Geo. 3, u. 42 48 Geo. 3, c. 88 VOL. II. — S. An Act for the better payment of inland bUls of exchange. An Act for giving Hke remedy upon promissory notes as is now used upon bills of exchangee, and for the better payment of inland biUs of exchange. An Act for further restraining the negotiation of promissory notes and inland bOls.of exchange under a limited sum within that part of Great Britain called England. An Act for the better observance of Good Friday in certain cases therein mentioned. An Act to restrain the negotiation of promissory notes and inland bUls of exchange under a limited sum in England. 4c 1092 45 & 46 Vict. cap. 61. Session and Chapter. Title of Act and extent of Bepeal. 1 & 2 Geo. 4, 0. 78 7 & 8 Geo. 4, 0. 15 9 Geo. 4, 0. 24 2 & 3 Wm. 4, c. I 6 & 7 wm. 4, 0. 58 8 & 9 Vict. c. 37 in part. 19 & 20 Viot. o. 97 in part. 23 &24 Vict. c. Ill in part. 34 & 35 Vict. 0. 74 39 & 40 Vict. u. 81 41 & 42 Viot. u. 13 An Act to regulate acceptances of bills of ex- cliange. An Act for declaring tlie law in relation to tiUs of excliange and promissory notes 'becoming payable on Good !Friday or Christmas Day. An Act to repeal certain Acts, and to consolidate and amend the laws relating to bills of ex- change and promissory notes in Ireland, in part ; that is to say, Sections two, four, seven, eight, nine, ten, eleven. An Act for regnlatiag the protesting for non- payment of biUs of exchange drawn payable at a place not being the place of the residence of the drawee or drawees of the same. An Act for declaring the Ia,w as to the day on which it is reqtdsite to present for payment to acceptor, or acceptors supra protest for honour, or to the 'referee or referees, in case of need, bills of exchange which have been dishonoured. An Act to regulate the issue of bank notes in Ire- land, and to regulate the repayment of certain sums advanced by the Governor and Company of the Bank of Ireland for the public service, in part ; that is to say. Section twenty-four. The Mercantile Law Amendment Act, 1856, in part ; that is to say, Sections six and seven. An Act for granting to her Majesty certain duties of stamps, and to amend the laws relat- ing to the stamp duties, in part ; that is to say, Section nineteen. An Act to abolish days of grace in the case of bills of exchange and promissory notes payable at sight or on presentation. The Crossed Cheques Act, 1876. The BUls of Exchange Act, 1878. Enactment eepealbd as to Scotland. 19 & 20 Viot. c. 60 in part. The Mercantile Law (Scotland) Amendment Act, 1856, in part ; that is to say. Sections ten, eleven, twelve, thirteen, fourteen, fifteen, and sixteen. 45 & 46 Viot. o. 76, An Ad to amend the Merchant Shipping Act, Colonial Courts of Inquiry, 1854, with respect to - [18tt Augvst, 1882.] Payment of Wages in Public-houses Prohibition Act. 1093 46 & 47 VioT. 0. 28. An Act to amend the Companies Acts, 1862 and 1867. I20th August, 1883.] Be it enacted by the Queen's most excellent Majesty, by and -with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as the Companies Act, 1883. Short title. 2. This Act shall, so far as is consistent with the terms thereof, be con- Construction of strued as one with the Companies Acts, 1862 and 1867. Act. 3. This Act shall come into force on the first day of September one Commencement thousand eight hundred and eighty-three. of Act. 4. In the distribution of the assets of any company being wound up under Wages and the Companies Acts, 1862 and 1867, there shall be paid in priority to other salary to be j„. i„ i„s'^ I r J preferential debts (a),— claims. (a) AU wages or salary of any clerk or servant m respect of service rendered to the company during four months before the commence- ment of the winding up not exceeding fifty pounds ; and (b) All wages of any labourer or workman in respect of services rendered to the company during two months before the commencement of the winding up. 8, The foregoing debts shall rank equally among themselves, and shall be Such claims to paid in full, unless the assets of the company are insufficient to meet them, ™°^ equally. in which case they shall abate in equal proportions between themselves. 6. Subject to the retention of such sums as may be necessary for the Liquidator to costs of administration or otherwise, the liquidator or liquidators or official discharge same liquidator shall discharge the foregoing debts forthwith, so far as the assets s^^ie^t^^g°i of the company are and wUl be sufficient to meet them, as and when such assets come into the hands of such liquidator or liquidators or official liquidator. 46 & 47 Vict. o. 31. An Act to prohibit the Payment of Wages to Workmen in Puhlic-houses and certain other places. I20th August, 1883.] Whereas by the Coal Mines Eegulations Act, 1872, and the Metalliferous 35&36Tiot. Mmes Eegulation Act, 1872, the payment in pubUc-houses, beershops, or t,''l-^„.. other places in the said Acts mentioned of wages to persons employed m or j, ^^ "^ * "^■ about any mines to which the said Acts apply is prohibited, and it is expe- dient to extend such prohibition to the payment in public-houses, beershops, and other places in England and Scotland of wages to all workmen as defined by this Act : , . j Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and by the authority of the same, as follows : ,„ . -r^ ■,-,■ , 1. This Act may be cited as the Payment of Wages m Pubhc-houses Short title. Prohibition Act, 1883. . 2. In this Act the expression "workman" means any person who is a Definition of labourer, servant in husband^, journeyman, artificer, handicraftsman, or is -workman, otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, but does not include a domestic or menial servant, nor any person employed in or about any mine to which the Coal Mines Regulation Act, 1872, or the Metalliferous Mines Regulation Act, 1872, applies. (a) See Bankruptcy Act, 1883, s. 40, 4c2 1094 46 & 47 Vict. cap. 52. No wages to be pa d within public-hou^e. Peaa.ties. Ac*-, not to apply to Ireland. 3. From and after the passing of this Act no wages shall be paid to any workman at or within any pnhlio-house, beershop, or place for the sale of any spirits, wine, cyder, or other spirituous or fermented liquor, or any office, garden, or place belonging thereto or occupied therewith, save and except such wages as are paid by the resident owner or occupier of such public-house, beershop, or place to any workman bon^ fide employed by him. Every person who contravenes or fails to comply with or permits any person to contravene or fail to comply with this Act shall be guilty of an offence against this Act. And in the event of any wages being paid by any person in contravention of the provisions of this Act for or on behalf of any employer, such employer shall himself be guilty of an offence against this Act, unless he prove that he had taken all reasonable uieans in his power for enforcing the provisions of this Act and to prevent such contravention. 4. Every person who is guilty of an offence against this Act shall be liable to a penalty not exceeding ten pounds for each offence ; and all offences against this Act may be prosecuted and aU penalties under this Act may be re- covered by any person summarily in England in the manner provided by the Summaiy .Turisdiotion Acts, and in Scotland in the manner provided by the Summary Jurisdiction (Scotland) Acts, 1864 and 1881. 5. This Act shall not apply to Ireland. 46 & 4Y Vict. o. 41. An Act to amend the Merchant Shipping Acts, 1854 to 1880, with re- spect to Fishing Vessels and Apprenticeship to the Sea Fishing Service and otherivise, \2bth August, 1883.] 46 & 47 Vict. o. 52. An Act to amend and consolidate the Law of Bankruptcy. [2oth August, 1883.] Be it enacted by the Queen's most excellent Majesty, by, and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows :— Short title. Extent of Act. Commencement of Act. 1. This Act may be cited as the Bankruptcy Act, 1883. 2. This Act shall not, except so far as ia expressly provided, extend to Scotland or Ireland. 3. This Act shall, except as by this Act otherwise provided, commence and come into operation from and immediately after the thirty-first day of December, one thousand eight hundred and eighty-three. Acts of bankruptcy. PART I. Peoobedinqs teom Act of Bankktjptot to Disohaeoe. Acts of Bankruptcy . 4. (1.) A debtor commits an act of bankruptcy in each of the following ases : — (a) If in England or elsewhere he makes a conveyance or assignment of Bankruptcy Act, 1883. 1095 liis property to a trustee or trustees for the benefit of his creditors generally ; (b) If in England or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof : (o) If in England or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon which would under this or any other Act be void as a fraudulent preference if he were adjudged bankrupt : (d) If with intent to defeat or delay his creditors he does any of the following things, namely, departs out of England, or being out of England remains out oi England, or departs from his dweUiug- house, or otherwise absents himself, or begins to keep house : (e) If execution issued against him has been levied by seizure and sale of his goods under process in an action in any court, or in any civil proceeding in the High Court : (f) If he files in the Court a declaration of his inability to pay his debts or presents a bankruptcy petition against himself : (g) If a creditor has obtained a final judgmentagainst him for any amount, and execution thereon not having been stayed, has served on him in England, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, requiring him to pay the judgment debt in accord- ance with the terms of the judgment, or to secure or compound for it to the satisfaction of the creditor or the Court, and he does not, within seven days after service of the notice, in case the service is effected in England, and in case the service is effected elsewhere, then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice, or satisfy the Court that he has a coimter-claim set off or cross demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained : (h) If the debtor gives notice to any of his creditors that he has suspended, or that ho is about to suspend, payment of his debts. (2.) A bankruptcy notice under this Act shall be in the prescribed form, and shall state the consequences of non-compliance therewith, and shall be served in the prescribed manner. deceiving Order. 6. Subject to the conditions hereinafter specified, if a debtor commits an Jurisdiction to act of bankruptcy the Court may, on a bankruptcy petition being presented make receiving either by a creditor or by the debtor, make an order, in this Act called a °™®'^- receiving order, for the protection of the estate. 6. (1.) A creditor shall not be entitled to present a bankruptcy petition Conditions on against a debtor unless — ^v netitSn" (a.) The debt owing by the debtor to the petitioning creditor, or, if two or ' '^ more creditors join in the petition, the aggregate amount of debts owing to the several petitioning creditors, amounts to fifty pounds, and (b.) The debt is a liquidated sum, payable either immediately or at some certain future time, and (c.) The act of bankruptcy on which the petition is grounded has occurred within three months before the presentation of the petition, and (d.) The debtor is domiciled in England, or, within a jrear before the date of the presentation of the petition, has ordinarily resided or had a dwelling-house or place of business in England. (2.) If the petitioning creditor is a secured creditor, he must, in his petition, either state that he is willing to give up his security for the benefit of the creditors in the event of the debtor being adjudged bankrupt, or give an estimate of the value of his security. In the latter case, he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him, after deducting the value so estimated in the same manner as if he were an unsecured creditor. 7. (1.) A creditor's petition shall be verified by affidavit of the creditor, or Proceedings and of some person on his behalf having knowledge of the facts, and served in the ^^^5 prescribed manner. petition. (2.) At the hearing the Qourt shall require proof of the debt of the 1096 46 & 47 Vict. cap. 62. Debtor's petition and order thereon. Effect of receiving order. Discretionary powers as to appointment of receiver and stay of pro- ceedings. Service of order staying pro- Power to appoint special manager. petitioning creditor of the aervice of tie petition, and of the act of bank- ruptcy, or, if more than one act of bankruptcy is alleged in the petition, of some one of the alleged acts of bankruptcy, and, if satisfied with the proof, may make a receiving order in pursuance of the petition. (3.) If the Court is not satisfied with the proof of the petitioning creditor's debt, or of the act of bankruptcy, or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made, the Court may dismiss the petition. (4.) When the act of bankruptcy relied on is non-compliance with a bank- ruptcy notice to pay, secure, or compound for a judgment debt, the Court may, if it thinks fit, stay or dismiss the petition on the ground that an appeal is pending from the judgment. (5.) Where the debtor appears on the petition, and denies that he. is indebted to the petitioner, or that he is indebted to such an amount as would justify the petitioner in presenting a petition against him, the Court, on such security (if any) being given as the Court may require for payment to the petitioner of any debt which may be established against him in due course of law, and of the costs of establishing the debt, may instead of dismissing the petition stay aU proceedings on the petition for such time as may be required for trial of the question relating to the debt. (6.) Where proceedings are stayed, the Court may, if by reason of the delay caused by the stay of proceedings or for any other cause it thinks just, make a receiving order on the petition of some other creditor, and shall there- upon dismiss, on such terms as it thinks just, the petition in which proceed- ings have been stayed as aforesaid. (7.) A creditor's petition shall not, after presentment, be withdrawn with- out the leave of the Court. 8. (1.) A debtor's petition shall allege that the debtor is unable to pay his debts, and the presentation thereof shall be deemed an act of bankruptcy without the previous filing by the debtor of any declaration of inability to pay his debts, and the Court shall thereupon make a receiving order. (2.) A debtor's petition shall not, after presentment, be withdrawn with- out the leave of the Court. 9. (1.) On the making of a receiving order an ofBoial receiver shall be thereby constituted receiver of the property of the debtor, and thereafter, except as directed by this Act, no creditor to whom the debtor is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the debtor in respect of the debt, or shall commence any action or other legal proceedings unless with the leave of the Court and on such terms as the Court may impose. (2.) But this section shall not affect the power of any secured creditor to realize or otherwise deal with his security in the same manner as he would have been entitled to realize or deal with it if this section had not been passed. 10. (1.) The Court may, if it is shown to be necessary for the protection of the estate, at any time after the presentation of a bankruptey petition, and before a receiving order is made, appoint the official receiver to be interim receiver of the property of the debtor, or of any part thereof, and direct him to take immediate possession thereof or of any part thereof. (2.) The Court may at any time after the presentation of a bankruptey petition stay any action, execution, or other legal process against the property or person of the debtor, and any Court in which proceedings are pending against a debtor may, on proof that a bankruptcy petition has been presented by or against the debtor, either stay the proceedings or allow them to continue on such terms as it may think just. 11. Where the Court makes an order staying any action or proceeding, or staying proceedings generally, the order may be served by sending a copy thereof, under the seal of the Court, by prepaid post letter to the address for service of the plaintiff or other party prosecuting such proceeding. 12. (1.) The official receiver of a debtor's estate may, on the application of any creditor or creditors, and if satisfied that the nature of the debtor's estate or business or the interests of the creditors generally require the appointment of a special manager of the estate or business other than the official receiver, appoint a manager thereof accordingly to act until a trustee is appointed, and with such powers (including any of the powers of a receiver) as may be entrusted to him by the official receiver. Bankkuptcy Act, 1883. 1097 (2.) The special manager shall give security and account in such manner as the Board of Trade may direct. (3.) The special manager shaU receive such remuneration as the creditors may, by resolntion at an ordinary meeting, determine, or in default of any such resolution, as may be prescribed. 13. Notice of every receiving order, stating the name, address, and AdTertisement description of the debtor, the date of the order, the Court by which the of reociTing order is made, and the date of the petition, shall be gazetted and advertised ""^ "' in a local paper in the prescribed manner. 14. If in any case where a receiving order has been made on a bankruptcy Power to Court petition it shall appear to the Court by which such order was made, upon an oei^ncorder in application by the official receiver, or any creditor or other person interested, certain oases. that a majority of the creditors in number and value are resident in Scotland or in Ireland and that from the situation of the property of the debtor, or other causes, his estate and effects ought to be distributed among the creditors under the Bankrupt or Insolvent Laws of Scotland or Ireland, the said Court, after such inquiry as to it shall seem fit, may rescind the receiving order and stay all proceedings on, or dismiss the petition upon such terms, if any, as the Court may think fit. Proceedings consequmt on Order, 15. (1.) As soon as may be after the making of a receiving order against a First and other debtor a general meeting of his creditors (in this Act referred to as the first ™|^^^ meeting of creditors) shall be held for the purpose of considering whether a proposal for a composition or scheme of arrangement shall be entertained, or whether it is expedient that the debtor shall be adjudged bankrupt, and generally as to the mode of dealing vrith the debtor's property. (2.) With respect to the summoning of and proceedings at the first and other meetings of creditors, the rules in the First Schedule shall be observed. ,16. (1.) Where a receiving order is made against a debtor, he shaU make Debtor's rtate- out and submit to the official receiver a statement of and in relation to his °'™' " *"*■"• affairs in the prescribed form, verified by affidavit, and showing the par- ticulars of the debtor's assets, debts, and liabilities, the names, residences, and occupations of his creditors, the securities held by them respectively, the dates when the securities were respectively given, and such further or other information as may be prescribed or as the official receiver may require. (2.) The statement shall be so submitted within the following times, namely : (i.) If the order is made on the petition of the debtor, within three days from the date of the order. (ii.) If the order is made on the petition of a creditor, within seven days from the date of the order. But the Court may, in either case, for special reasons, extend the time. (3.) If the debtor fails without reasonable excuse to comply with the requirements of this section, the Court may, on the application of the official receiver, or of any creditor, adjudge him bankrupt. (4.) Any person stating himseH in writing to be a creditor of the bankrupt may, personally or by agent, inspect this statement at aU reasonable times, and take any copy thereof or extract therefrom, but any person untruthfully BO stating himself to be a creditor shall be guilty of a contempt of Court, and shall be punishable accordingly on the application of the trustee or official receiver. Fublic Examination of Debtor. 17, (I.) Where the Court makes a receiving order it shall hold a public Public sitting, on a day to be appointed by the Court, for the examination of the examination of debtor, and the debtor shall attend thereat, and shall be examined as to his "«"«"■. conduct, dealings, and property. (2.) The examination shall be held as soon as conveniently may be after the expiration of the time for the submission of the debtor's statement of affairs. (3.) The Court may adjourn the examination from time to time. (4.) Any creditor who has tendered a proof , or his representative authorised in writing, may question the debtor concerning his affairs and the causes of his failure. (.5.) The official receiver shall take part in the examination of the debtor ; 1098 46 & 47 Vict. cap. 52. and for the purpose thereof, if ipeoially authorised by the Board of Trade, may employ a solicitor with or without counsel. (6.) If a trustee is appointed before the conclusion of the examination he may take part therein. (7.) The Court may put such questions to the debtor as it may think expedient. (8.) The debtor shall be examined upon oath, and it shall be his duty to answer all such questions as the Court may put or allow to be put to him. Such notes of the examination as the Court thinks proper shall be taken down in writing, and shall be read over to and signed by the debtor, and may thereafter be used in evidence against him ; they shall also be open to the inspection of any creditor at all reasonable times. (9.) When the Court is of opinion that the affairs of the debtor have been sufficiently investigated, it shall, by order, declare that his examination is concluded, but such order shall not be made until after the day appointed for the first meeting of creditors. Composition or Scheme of Arrmtgemmt. Power for 18. (1.) The creditors may at the first meeting or any adjournment thereof, aooertamdCourt ^^ special resolution, resolve to entertain a proposal for a composition in to approve satisfaction of the debts due to them from the debtor, or a proposal for a composition or scheme of arrangement of the debtor's affairs. arrangement. p.) The composition or scheme shall not be binding on the creditors unless it is confirmed by a resolution passed (by a majority in number representing three fourths in value of all the creditors who have proved) at a subsequent meeting of the creditors, and is approved by the Court. Any creditor who has proved his debt may assent to or dissent from such composition or scheme by a letter addressed to the official receiver in the prescribed form, and attested by a witness, so as to be received by such official receiver not later than the day preceding such subsequent meeting, and such creditor shall be taken as being present and voting at such meeting. (3.) The subsequent meeting shall be summoned by the official receiver by not less than seven days notice, and shall not be held until after the public examination of the debtor is concluded. The notice shall state generally the terms of the proposal, and shall be accompanied by a report of the official receiver thereon. (4.) The debtor or the official receiver may, after the composition or scheme is accepted by the creditors, apply to the Court to approve it, and notice of ihe time appointed for hearing the application shall be given to each creditor who has proved. (5.) The Court shall, before approving a composition or scheme, hear a report of the official receiver as to the terms of the composition or scheme and as to the conduct of the debtor, and any objections which may be made by or on behalf of any creditor. (6.) If the Court is of opinion that the terms of the composition or scheme are not reasonable, or are not calculated to benefit the general body of cre- ditors, or in any case in which the Court is required under this Act where the debtor is adjudged bankrupt to refuse his discharge, the Court shall, or if any such facts are proved as would under this Act justify the Court in refusing, qualifying, or suspending the debtor's discharge, the Court may, in its discretion, refuse to approve the composition or scheme. (7.) If the Court approves the composition or scheme, the approval may be testified by the seal of the Coxirt being attached to the instrument containing the terms of the composition or scheme, or by the terms being embodied in an order of the Court. (8.) A composition or scheme accepted and approved in pursuance of this section shall be ■binding on all the creditors so far as relates to any debts due to them from the debtor and provable in bankruptcy. (9.) A certificate of the official receiver that a composition or scheme has been duly accepted and approved shall, in the absence of fraud, be conclusive as to its validity. (10.) The provisions of a composition or scheme under this section may be enforced by the Court on applioatinn by any person interested, and any dis- obedience of an order of the Court made on the application shall be deemed a contempt of Court. Bankruptcy Act, 1883. 1099 (U.) If default is made in payment of any instalment due in pursuance of the composition or scheme, or if it appears to the Court, on satisfactory evidence, that the composition or scheme cannot in consequence of legal diffi- culties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, or that the approval of the Court was obtained by fraud, the Court may, if it thinks fit, on application by any creditor, adjudge the debtor bankrupt, and annul the composition or scheme, but without prejudice to the validity of any sale, disposition, or payment duly made, or thing duly done tinder or in pursuance of the composition or scheme. Where a debtor is adjudged bankrupt under this sub-section any debt provable in other respects, which has been contracted before the date of the adjudication, shall be provable in the bankruptcy. (12.) If, under or in pursuance of a composition or scheme, a trustee is appointed to administer the debtor's property or manage his business. Part V. of this Act shall apply to the trustee as if he were a trustee in a bankruptcy, and as if the terms "bankruptcy," " bankrupt," and "order of adjudication " included respectively a composition or scheme of arrange- ment, a compounding or arranging debtor, and order approving the composi- tion or scheme. (13.) Part III. of this Act shall, so far as the nature of the case and the terms of the composition or scheme admit, apply thereto, the same interpre- tation being ^iven to the words "trustee," "bankruptcy," "bankrupt," and " order of adjudication," as in the last preceding sub-section. (14.) No composition or scheme shall be approved by the Court which does not provide for the pajTnent in priority to other debts of all debts directed to be so paid in the distribution of the property of a bankrupt. (15.) The acceptance by a creditor of a composition or scheme shall not release any person who under this Act would not be released by an order of discharge if the debtor had been adjudged bankrupt. 19. Notwithstanding the acceptance and approval of a composition or Effect of scheme, such composition or scheme shall not be binding on any creditor so composition or far as regards a debt or liability from which, under the provisions of this ^™^™^' Act, the debtor would not be discharged by an order of discharge in bank- ruptcy, unless the creditor assents to the composition or scheme. Adjudication of Bankruptey . 20. (1.) Where a receiving order is made against a debtor, then, if the Adjudication of creditors at the first meeting or any adjournment thereof by ordinary resolu- tankraptcy tion resolve that the debtor be adjudged bankrupt, or pass no resolution, or position not if the creditors do not meet, or if a composition or scheme is not accepted or accepted or approved in pursuance of this Act within fourteen days after the conclusion approved, of the examination of the debtor or such further time as the Court may allow, the Court shall adjudge the debtor bankrupt ; and thereupon the property of the bankrupt shall become divisible among his creditors and shall vest in a trustee. (2.) Notice of every order adjudging a debtor bankrupt, stating the name, address, and description of the bankrupt, the date of the adjudication, and the Court by which the adjudication is made, shall be gazetted and advertised in a local paper in the prescribed manner, and the date of the order shall for the purposes of this Act be the date of the adjudication. 21. (1.) Where a debtor is adjudged bankrupt, or the creditors have Appointment of resolved that he be adjudged bankrupt, the creditors may, by ordinary reso- t™stee. lution, appoint some fit person, whether a creditor or not, to fill the office of trustee of the property of the bankrupt ; or they may resolve to leave his appointment to the conmiittee of inspection hereinafter mentioned. (2.) The person so appointed shall give security in manner prescribed to the satisfaction of the Board of Trade, and the Board, if satisfied with the security, shall certify that his appointment has been duly made, unless they object to the appointment on the ground that it has not been made in good faith by a majority in value of the creditors voting, or that the person ap- pointed is not fit to act as trustee, or that his connexion with or relation to the bankrupt or his estate or any particular creditor makes it difficult for hun to act with impartiality in the interests of the creditors generally. (3.) Provided that where the Board make any such objection they shall, if so requested by a majority in value of the creditors, notify the objection to the High Court, and thereupon the High Court may decide on its validity. 1100 46 & 47 Vict. cap. 52. Committee of inspection. Power to accept compoaition or scheme after bankruptcy adjudication. (4.) The appointment of a trustee shall take effect as from the date of the certificate. (6.) The ofBcial receiver shall not, save as by this Act provided, be the trustee of the bankrupt's property. (6.) If a trustee is not appointed by the creditors within four weeks from the date of the adjudication, or, in the event of negotiations for a composi- tion or scheme being' pending at the expiration of those four weeks, then within seven days from the close of those negotiations by the refusal of the creditors to accept, or of the Court to approve, the composition or scheme, the official receiver shall report the matter to the Board of Trade, and there- upon the Board of Trade shall appoint some fit person to be trustee of the bankrupt's property, and shall certify the appointment. (7.) Provided that the creditors or the committee of inspection (if so autho- rized by resolution of the creditors) may, at any subsequent time, if they think fit, appoint a trustee, and on the appointment being made and certified the person appointed shall become trustee in the place of the person ap- pointed by the Board of Trade. (8.) When a debtor is adjudged bankrupt after the first meeting of credi- tors has been held, and a trustee has not been appointed prior to the adju- dication, the official receiver shall forthwith summon a meeting of creditors for the purpose of appointing a trustee. 22. (1.) The creditors, qualified to vote, may at their first or any subse- quent meeting, by resolution, appoint from among the creditors qualified to vote, or the holders of general proxies or general powers of attorney from such creditors, a committee of inspection for the purpose of superintending the administration of the bankrupt's property by the trustee. The com- mittee of inspection shall consist of not more than five nor less than three persons. (2.) The committee of inspection shall meet at such times as they shall .from time to time appoint, and failing such appointment, at least once a month ; and the trustee or any member of the committee may also call a meeting of the committee as and when he thinks necessary. (3.) The committee may act by a majority of their members present at a meeting, but shall not act unless a majority of the committee are present at the meeting. (4.) Any member of the committee may resign his office by notice in writing signed by him, and delivered to the trustee. (6.) If a member of the committee becomes bankrupt, or compounds or arranges with his creditors, or is absent from five consecutive meetings of the committee, his office shall thereupon become vacant. (6.) Any member of the committee may be removed by an ordinary reso- lution at any meeting of creditors of which seven days notice has been given, stating the object of the meeting. (7.) On a vacancy occurring in the office of a member of the committee, the trustee shall forthwith summon a meeting of creditors for the purpose of filling the vacancy, and the meeting may, by resolution, appoint another creditor or other person eligible as above to fill the vacancy. (8.) The continuing members of the committee, provided there be not less than two such continuing members, may act notwithstanding any vacancy in their body ; and where the number of members of the committee of inspec- tion is for the time being less than five, the creditors may increase that number, so that it do not exceed five. (9.) If there be no committee of inspection, any act or thing or any direc- tion or permission by this Act authorized or required to be done or given by the committee may be done or given by the Board of Trade on the applica- tion of the trustee. 23. (1.) "Where a debtor is adjudged bankrupt the creditors may, if they think fit, at any time after the adjudication, by special resolution, resolve to entertain a proposal for a composition in satikfaction of the debts due to them under the bankruptcy, or for a scheme of arrangement of the bankrupt's affairs ; and thereupon the same proceedings shall be taken and the same consequences shall ensue as in the case of a composition or scheme accepted before adjudication. (2.) If the Court approves the composition or scheme it may make an order annulling the bankruptcy and vesting the property of the bankrupt in him Bankruptcy Act, 1883. 1101 or in such other person as the Court may appoint, on such terms, and sub- ject to such conditions, if any, as the Court may declare. (3.) If default is made in payment of any instalment due in pursuance of the composition or scheme, or if it appears to the Court that the composition or scheme cannot proceed without injustice or undue delay, or that the approval of the Court was obtained by fraud, the Court may, if it thinks fit, on appUoation by any person interested, adjudge the debtor bankrupt, and annul the composition or scheme, but without prejudice to the validity of any sale, disposition, or payment duly made, or thing duly done, under or in piirsuance of the composition or scheme. Where a debtor is adjudged bankrupt imder this sub-section, aU debts, provable in other respects, which have been contracted before the date of such adjudication shall be provable in the bankruptcy. Control over Fcraon and Froperty of Debtor. 24. (1.) Every debtor against whom a receiving order is made shall, un- Duties of debtor less prevented by sickness or other sufficient cause, attend the first meeting "s to diaoovery of his creditors, and shall submit to such examination and give such infor- Sf property.'"" mation as the meeting may require. (2.) He shall give such inventory of his property, such list of his creditors and debtors, and of the debts due to and from them respectively, submit to such examination in respect of his property or his creditors, attend such other meetings of his creditors, wait at such times on the official receiver, special manager, or trustee, execute such powers of attorney, conveyances, deeds, and instruments, and generally do aU such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as may be reasonably required by the oflicial receiver, special manager, or trustee, or may be prescribed by general rules, or be directed by the Court by any special order or orders made in reference to any particular case, or made on the occa- sion of any special application by the official receiver, special manager, trastee, or any creditor or person interested. (3.) He shall, if adjudged bankrupt, aid, to the utmost of his power, in the reaKsation of his property and the distribution of the proceeds among his creditors. (4.) If a debtor wilfully fails to perform the duties imposed on him by this section, or to deliver up possession of any part of his property, which is divi- sible amongst his creditors under this Act, and which is for the time being in his possession or under his control, to the official receiver or to the trustee, or to any person authorized by the Court to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of court, and may he punished accordingly. 25. (1.) The Court may, by warrant addressed to any constable or Arrest of debtor prescribed officer of the Court, cause a debtor to be arrested, and any books, under certain papers, money, and goods in his possession to be seized, and him and them to ''"'''"™* ^''^• be safely kept as prescribed until such time as the Court may order under the following circumstances : (a.) If after a bankruptey notice has been issued under this Act, or after presentation of a bankruptey petition by or against him, it appears to the Court that there is probable reason for believing that he is about to abscond with a view of avoiding payment of the debt in respect of which the bankruptey notice was issued, or of avoiding service of a bankruptcy petition, or of avoiding appearance to any such petition, or of avoi^ng examination in respect of his affairs, or of otherwise avoiding, delaying, or embarrassing proceedings in bankruptcy against him. (i.) If, after presentation of a bankruptcy petition by or against him, it appears to the Court that there is probable cause for believing that he is about to remove his goods with a view of prevraiting or delaying possession being taken of them by the official receiver or trustee, or that there is probable ground for believing that he has concealed or is about to conceal or destroy any of his goods, or any hooks, docu- ments, or writings, which might be of use to his creditors in the course of his bankruptcy, (c.) If, after service of a bankruptey petition on him, or after a receiving order is made against him, he removes any goods in his possession 1102 46 & 47 Vict. cap. 52. Re-direction of debtor's letters. Discovery of debtor's property. above the value of five pounds, without the leave of the of&cial receiver or trustee. [d.) If, without good cause shown, he fails to attend any examination ordered by the Court. Provided that no arrest upon a bankruptcy notice shall be valid and pro- tected unless the debtor before or at the time of his arrest shall be served with such bankruptcy notice. (2.) No payment or composition made or security given after arrest made under this section shall be exempt from the provisions of this Act relatiag to fraudulent preferences. 86. Where a receiving order is made against a debtor, the Court, on the application of the official receiver or trustee, may from time to time order that for such time, not exceeding three months, as the Court thinks fit, post letters addressed to the debtor at any place, or places, mentioned in the order for re-direction shall be re-directed, sent or delivered by the Postmaster- General, or the officers acting under him, to the official receiver, or the trustee, or otherwise as the Court directs, and the same shall be done accordingly. 27. (1.) The Court may, on the application of the official receiver or trustee, at any time after a receiving order has been made against a debtor, summon before it the debtor or bis wife, or any person known or suspected to have in his possession any of the estate or effects belonging to the debtor, or supposed to be indebted to the debtor, or any person whom the Court may deem capable of giving information respecting the debtor, his dealings or pro- perty, and the Court may require any such person to produce any documents in his custody or power relating to the debtor, his deaHngs or property. (2.) If any person so summoned, after having been tendered a reasonable sum, refuses to come before the Court at the time appointed, or refuses to produce any such document, having no lawful impediment made known to the Court at the time of its sitting and allowed by it, the Court may, by warrant, cause him to be apprehended and brought up for examination. (3.) The Courtmay examine on oath, either by word of mouth or by written interrogatories, any person so brought before it concerning the debtor, his dealings or property. (4.) If any person on examination before the Court admits that he is in- debted to the debtor, the Court may, on the application of the official receiver or trustee, order him to pay to the receiver or trustee, at such time and in such manner as to the Court seems expedient, the amount admitted, or any part thereof, either in full discharge of the whole amount in question or not, as the Court thinks fit, with or without costs of the examination. (.5.) If any person on examination before the Court admits that he has in his possession any property belonging to the debtor, the Court may, on the application of the official receiver or trustee, order him to deliver to the offi- cial receiver or trustee such property, or any part thereof, at such time, and in such manner, and on such terms as to the Court may seem just. (6.) The Court may, if it think fit, order that any person who if in Eng- land would be liable to be brought before it under this section shall be examined in Scotland or Ireland, or in any other place out of England. Discharge of bankrupt. Discharge of BanJtrupt. 88. (1.) A bankrupt may, at any time after being adjudged bankrupt, apply to the Court for an order of discharge, and the Court shall appoint a day for hearing the application, but the application shall not be heard until the public examination of the bankrupt is concluded. The application shall be heard in open Court. (2.) On the hearing of the application the Court shall take into considera- tion a report of the official receiver as to the bankrupt's conduct and affairs, and may either grant or refuse an absolute order of discharge, or suspend the operation of the order for a specified time, or grant an order of discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the bankrupt, or with respect to his after- acquired property : Provided that the Court shall refuse the discharge in all cases where the bankrupt has committed any misdemeanor under this Act, or Part II. of the Debtors Act, 1869, or any amendment thereof, and shall, on proof of any of the facts hereinafter mentioned, either refuse the order, or Bankruptcy Act, 1883. 1103 suspend the operation of the order for a specified time, or grant an order of discharge, subject to such conditions as aforesaid. (3.) The facts hereinbefore referred to are— (a) That the bankrupt has omitted to keep such books of account as are usual and proper in the business carried on by him and as suffi- ciently disclose his business transactions and financial position within the three years immediately preceding his bankruptcy ; (b) That the bankrupt has continued to trade after knowing himself to be insolvent : (o) That the bankrupt has contracted any debt provable in the bankruptcy, without having at the time of contracting it any reasonable or pro- bable ground of expectation (proof whereof shall lie on him) of being able to pay it : (d) That the bankrupt has brought on his bankruptcy by rash and hazardous speculations or unjustifiable extravagance in living : (e) That the bankrupt has put any of his creditors to unnecessary expense by a frivolous or vexatious defence to any action properly brought against him : (f) That the bankrupt has within three months preceding the date of the receiving order, when unable to pay his debts as they become due, given an undue preference to any of his creditors : (g) That the bankrupt has on any previous occasion been adjudged bankrupt, or made a [statutory] (a) composition or arrangement with his creditors : (h) That the bankrupt has been guilty of any fraud or fraudulent breach of trust : (4.) For the purposes of this section the report of the official receiver shall be primel facie evidence of the statements therein contained. (5.) Notice of the appointment by the Court of the day for hearing the application for discharge shaU be published in the prescribed manner and sent fourteen days at least before the day so appointed to each creditor who has proved, and the Court may hear the official receiver and the trustee, and may also hear any creditor. At the hearing the Court may put such ques- tions to the debtor and receive such evidence as it may think fit. (0.) The Court may, as one of the conditions referred to in this section, require the bankrupt to consent to judgment being entered against him by the official receiver or trustee for any balance of the debts provable under the bankruptcy which is not satisfied at the date of his discharge ; but in such case execution shall not be issued on the judgment without leave of the Court, which leave may be given on proof that the bankrupt has since his discharge acquired property or income available for payment of his debts. (7.) A disdiarged bankrupt shall, notwithstanding his discharge, give such assistance as the trustee may require in the realization and distribution of such of his property as is vested in the trustee, and if he fails to do so he shall be guUty of a contempt of Court ; and the Court may also, if it thinks fit, revoke his discharge, but without prejudice to the validity of any sale, disposition, or payment duly made or thing duly done subsequent to the discharge, but before its revocation. 29. In either of the following cases ; that is to say, •^li^™! (1.) In the case of a settlement made before and iu consideration of mar- '■" °"'"' ° riage where the settlor is not at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement ; or (2.) In the case of any covenant or contract made in consideration of mar- riage for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or interest (not being money or property of or in right of his wife) ; If the settlor is adjudged bankrupt or compounds or an-anges with his creditors, and it appears to the Court that such settlement, covenant, or contract was made in order to defeat or delay creditors, or was unjustifiable having regard to the state of the settlor's affairs at the time when it was made, the Court may refuse or suspend an order of discharge, or grant an [a) See 50 & 51 Vict. c. 57, s. 16. settlements. 1104 46 & 47 Vict. cap. 52. Effect of order of discharge. Undischarged bankrupt obtaining credit to extent of 201. to be guilty of misdemeanor. order subject to conditions, or refuse to approve a composition or arrange- ment, as the case may be, in like manner as in cases .wnere the debtor has been gTiilty of fraud. 30. (1.) An order of discharge shall not release the bankrupt from any debt on a recognizance nor from any debt with which the bankrupt may be chargeable at the suit of the Crown or of any person for any offence against a statute relating to any branch of the pubUc revenue, or at the suit of the sheriff or other public officer on a bail bond entered into for the appearance of any person prosecuted for any such offence : and he shall not be discharged from such excepted debts unless the Treasury certify in writing their consent to his being discharged therefrom. An order of discharge shall not release the bankrupt from any debt or liability incurred by means of any fraud or fraudulent breach of trust to which he was a party, nor from any debt or liability whereof he has obtained forbearance by any fraud to which he was a party. (2.) An order of discharge shall release the bankrupt from all other debts provable in bankruptcy. (.3.) An order of discharge shall be conclusive evidence of the bankruptcy, and of the validity of the proceedings therein, and in any proceedings that may be instituted against a bankrupt who has obtained an order of discharge in respect of any debt from which he is released by the order, the bankrupt may plead that the cause of action occurred before his discharge, and may give this Act and the special matter in evidence. (4.) An order of discharge shall not release any person who at the date of the receiving order was a partner or co-trustee with the bankrupt or was joiatly bound or had made any joint contract with him, or any person who was surety or in the nature of a surety for him. 31. Where an undischarged bankrupt who has been adjudged bankrupt under this Act obtains credit to the extent of twenty pounds or upwards from any person without informing such person that he is an xmdischarged bankrupt, he shall be guilty of a misdemeanor, and may be dealt with and punished as if he had been guilty of a misdemeanor under the Debtors Act, 1869, and the provisions of that Act shall apply to proceedings under this section. DisquaMcatlons of bankrupt. PAUT II. DlSQUAXlPIOATIONS OF BANKETTPT. 32. (1.) Where a debtor is adjudged bankrupt he shall, subject to the provisions of this Act, be disqualified for — (a) Sitting or voting in the House of Lords, or on any committee thereof, or being elected as a peer of Scotland or Ireland to sit and vote in the House of Lords ; (b) Being elected to, or sitting or voting in, the House of Commons, or on any committee thereof ; (c) Being appointed or acting as a justice of the peace ; (d) Being elected to or holding or exercising the ofBce of mayor, alderman, or councillor ; (e) Being elected to or holding or exercising the office of guardian of the poor, overseer of the poor, member of a sanitary authority, or member of a school board, highway board, burial board, or select vestry. (2.) The disqualifioations to which a baiikrupt is subject under this section shall be removed and cease if and when, — (a) the adjudication of bankruptcy against hiTn is annulled ; or (b) he obtains from the Court his discharge with a certificate to the effect that his bankruptcy was caused by misfortune without any mis- conduct on his part. The Court may grant or withhold such certificate as it thinks fit, but any refusal of such certificate shall be subject to appeal. (3.) The disqualifications imposed by this section shall extend to all parts of the United Kingdom. Bankruptcy Act, 1883. 1105 33. (1.) If a member of the House of Commons is adjudged bankrupt, and Vacating of seat the disqualifications arising therefrom under this Act are not removed within j? House of six months from the date of the order, the Court shall, immediately after the ^'"'™'°°-'- expiration of that time, certify the same to the Speaker of the House of Commons, and thereupon the seat of the member shall be vacant. (2.) Where the seat of a member so becomes vacant, the Speaker, during a recess of the House, whether by prorogation or by adjournment, shaU forthwith, after receiving the certificate, cause notice thereof to be published in the London Gazette ; and after the expiration of six days after the publi- cation shall (unless the House has met before that day, or will meet on the day of the issue), issue his warrant to the clerk of the Crown to make out a new writ for electing another member in the room of the member whose seat has so become vacant. (3.) The powers of the act of the twenty-fourth year of the reign of King George the Third, chapter twenty-sbc, " to repeal so much of two Acts made in the tenth and fifteenth years of the reign of his present Majesty as authorises the Speaker of the House of Commons to issue his warrant to the clerk of the Crown for making out writs for the election of members to serve in Parliament in the manner therein mentioned ; and for substituting other provisions for the like purposes," so far as those powers enable the Speaker to nominate and appoint other persons, being members of the House of Conunons, to issue warrants for the making out of new writs during the vacancy of the ofBoe of Speaker, or during his absence out of the realm, shall extend to enable him to make the like nomination and appointment for issuing warrants, under the like circumstances and conditions, for the election of a member in the room of any member whose seat becomes vacant under this Act. 84. If a person is adjudged bankrupt whilst holding the office of mayor. Vacating of alderman, councillor, guardian, overseer, or member of a sanitary authority, munioiTOl and school board, highway board, burial board, or select vestry, his office shall otli^r offices, thereupon become vacant. 85. (1.) Where in the opinion of the Court a debtor ought not to have Power for coui-t been adjudged bankrupt, or where it is jjroved to the satisfaction of the to annul adju- Court that the debts of the bankrupt are paid in fuU, the Court may, on the oert^'oM&s. application of any person interested, by order, annul the adjudication. (2.1 Where an adjudication is annulled under this section all sales and dis- positions of property and payments duly made, and all acts theretofore done, by the official receiver, trustee, or other person acting under their authority, or by the Court, shall be valid, but the property of the debtor who was adjudged bankrupt shall vest in such person as the Court may appoint, or in default of any such appointment revert to the debtor for all his estate or interest therein on such terms and subject to such conditions, if any, as the Court may declare by order. (3.) Notice of the order annulling an adjudication shall be forthwith gazetted and published in a local paper. 86. For the purposes of this part of this Act, any debt disputed by a Meaning of pay- debtor shall be considered as paid in full, if the debtor enters into a bond, in ™™* "' ^^^^ "• such sum and with such sureties as the Court approves, to pay the amount to be recovered in any proceeding for the recovery of or concerning the debt, vrith costs, and any debt due to a creditor who cannot be found or cannot be identified shall be considered as paid in fuU if paid into Court. PART III. Abministeation 0]? Peopeety. Proof of Debts, 87. (1.) Demands in the nature of unliquidated damages arising otherwise Description of than by reason of a contract, promise, or breach of trust, shall not be prov- ^baiSrote^ able in bankruptcy. (2.) A person having notice of any act of bankruptcy available against the 1106 46 & 47 Vict. cap. 52. Mutual credit and set-off. Bules as to proof of debts. Priority of debts. debtor shall not prove under the order for any debt or liability contracted by the debtor subsequently to the date of his so having notice. (3). Save as aforesaid, all debts and liabilities, present or future, certain or contingent, to -which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any obligation incurred before the date of the receiving order, shall be deemed to be debts provable in bankruptcy. (4.) An estimate shall be made by the trustee of the value of any debt or liability provable as aforesaid, which by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value. (&.) Any person aggrieved by any estimate made by the trustee as afore- said may appeal to the Court. (6.) If, in the opinion of the Court, the value of the debt or liability is in- capable of being fairly estimated, the Court may make an order to that effect, and thereupon the debt or liabiKty shall, for the purposes of this Act, he deemed to be a debt not provable in bankruptcy. (7.) If, ia the opinion of the Court, the value of the debt or liability is capable of being fairly estimated, the Court may direct the value to be assessed, before the Court itself without the intervention of a jury, and may give all necessary directions for this purpose, and the amount of the value when assessed shall be deemed to be a debt provable in bankruptcy. (8.) " Liability" shall for the purposes of this Act include any compensa- tion for work or labour done, any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agreement, or undertaking, whether the breach does or does not occur, or is or is not likely to occur or capable of occurring before the discharge of the debtor, and generally it shall include any express or im- plied engagement, agreement, or undertaking, to pay, or capable of resulting in the payment of money, or money's worth, whether the payment is, as respects amount, fixed or unliquidated ; as respects time, present or future, certain or dependent on any one contingency or on two or more contingencies ; as to mode of valuation capable of being- ascertained by fixed rules, or as matter of opinion. 38. Wliere there have been mutual credits, mutual debts, or other mutual dealings between a debtor against whom a receiving order shall be made under this Act, and any other person proving or claiming to prove a debt under such receiving order, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively ; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a debtor in any case where he had at the time of giving credit to the debtor, notice of an act of bankruptcy committed by the debtor, and available against him. 39. With respect to the mode of proving debts, the right of proof by sec\rred and other creditors, the admission and rejection of proofs, and the other matters referred to in the Second Schedule, the rules in that schedule shall be observed. 40. (1.) In the distribution of the property of a bankrupt there shall he paid in priority to all other debts, — (a) All parochial or other 'local rates due from the bankrupt at the date of the receiving order, and having become due and payable within twelve months next before such time, and aU assessed taxes, land tax, property or income tax, assessed on him up to the fifth day of April next before the date of the receiving order, and not exceeding in the whole one year's assessment ; (b) All wages or salary of any clerk or servant in respect of services ren- dered to the bankrupt during four months before the date of the receiving order, not exceeding fifty pounds ; and (c) All wages of any labourer or workman, not exceeding fifty pounds, whether payable for time or piece-work, in respect of services ren- dered to the bankrupt during four months before the date of the receiving order. (2.) The foregoing debts shall rank equally between themselves, and shall be paid in full, unless the property of the bankiupt is insufficient to meet Bankrupts Act, 1883. 1107 them, in wMoh case they shall abate in equal proportions between them- selves. (3.) In the case of partners the joint estate shall be applicable ia the first instance in payment of their joint debts, and the separate estate of each partner shall be applicable in the first instance in payment of his separate debts. If there is a surplus of the separate estates it shall be dealt with as part of the joint estate. If there is a surplus of the joint estate it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each partner in the joint estate. (4.) Subject to the provisions of this Act all debts proved in the bank- ruptcy shall be paid pari passu. (6.) If there is any surplus after payment of the foregoing debts, it shall be applied in payment of interest from the date of the receiving order at the rate of four pounds per centum per annum on all debts proved in the bank- ruptcy. (6.) Nothing in this section shall alter the effect of section five of the Act twenty-eight and twenty-mne Victoria, chapter eighty-six, "to amend the Law of Partnership," or shall prejudice the provisions of the EViendly 38&89Vic!t. Societies Act, 1876. _ _ "• *">• 41. (1.) Where at the time of the presentation of the bankruptcy petition Preferential any person is apprenticed or is an articled clerk to the bankrupt, the adju- am^nScraMp dication of bankruptcy shall, if either the bankrupt or apprentice or clerk gives notice in writing to the trustee to that effect, be a complete discharge of the indenture of apprenticeship or articles of agreement ; and if any money has been paid by or on behalf of the apprentice or clerk to the bankrupt as a fee, the trustee may, on the appUoation of the apprentice or clerk, or of some person on his behalf , pay such sum as the trustee, subject to an appeal to the Court, thinks reasonable, out of the bankrupt's property, to or for the use of the apprentice or clerk, regard being had to the amount paid by him or on his behalf, and to the time during which he served with the bankrupt under the indenture or articles before the commencement of the bankruptcy, and to the other circumstances of the case. (2.) Where it appears expedient to a trustee, he may, on the application of any apprentice or articled clerk to the bankrupt, or any person acting on behalf of such apprentice or articled clerk; instead of acting under the pre- ceding provisions of this section, transfer the indenture of apprenticeship or articles of agreement to some other person. 48. (1.) The landlord or other person to whom any rent is due from the Power to land- bankrupt may at any time either before or after the commencement of the J™* to distrain bankruptcy, distrain upon the goods or effects of the bankrupt for the rent " "^^ ' due to bim from the bankrupt, with this limitation, that if such distress for rent be levied after the commencement of the bankruptcy it shall be available only for one year's rent accrued due prior to the date of the order of adjudi- cation, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the surplus due for which the distress may not have been available. (2.) For the purposes of this section the term "order of adjudication" shall be deemed to include an order for the administration of the estate of a debtor whose debts do not exceed fifty poimds, or of a deceased person who dies insolvent. Property available for Payment of Debts. 43. The bankruptcy of a debtor, whether the same takes place on the Relation back of debtor's own petition or upon that of a creditor or creditors, shall be deemed trustee's title, to have relation back to, and to commence at, the time of the act of bank- ruptcy being committed on which a receiving order is made against him, or, if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and to commence at, the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within three months next preceding the date of the presentation of the bankruptcy petition ; but no bankruptcy petition, receiving order, or adjudication shall be rendered invalid by reason of any act of bankruptcy anterior to the debt of the petitioning creditor. 44. The property of the bankrupt divisible amongst his creditors, and in this Description of VOL. II. — S. 4d 1108 46 & 47 Vict. cap. 52. banfcrapt's pro- Act referred to as the property of the bankrupt, shall not comprise the fol- perty dmsible lowing particulars : crefflOTs (1-) Property held by the bankrupt on trust for any other person : (2.) The tools (if any) of his trade and the necessary wearing apparel and bedding of himself, his wife and children, to a value, inclusive of tools and apparel and bedding, not exceeding twenty pounds in the whole : But it shall comprise the following particulars : (i.) All such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge ; and (u.) The capacity to exercise and to take probeedings ' for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge, except the right of nomi- nation to a vacant ecclesiastical benefice ; and, (iii.) AH goods being, at the commencement of the bankruptcy, in the pos- session, order or disposition of the bankrupt, in his trade or busi- ness, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof ; provided that things in action other than debts due or growing due to the bank- rupt is the course of his trade or business, shall not he deemed goods within the meaning of this section. Mffect of Ba/nkruptcy on antecedent Transactions. Eestriotion of 45. (1.) Where a creditor has issued execution against the goods or lands rights of creditor of a debtor, or has attached any debt due to him, he shall not be entitled to ™attacSeS''' retain tiie benefit of the execution or attachment against the trustee in bank- ruptcy of the debtor, unless he has completed the execution or attachment before the date of the receiving order, and before notice of the presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor. (2.) For the purposes of this Act, an execution against goods is completed by seizure and sale ; an attachment of a debt is completed by receipt of the debt ; and an execution against land is completed by seizure, or, in the case of an equitable interest, by the appointment of a receiver. Duties of sheriff 46. (1.) Where the goods of a debtor are taken in execution, and before iQ*" e°°^if''^™ the sale thereof notice is served on the sheriff that a receiving order has been made against the debtor, the sheriff shall, on request, deliver the goods to the official receiver or trustee under the order, but the costs of the execution shall be a charge on the goods so delivered, and the official receiver or trustee may sell the goods or an adequate part thereof for the purpose of satisfying the charge. (2.) Where the goods of a debtor are sold under an execution in respect of a judgment for a sum exceeding twenty pounds, the sheriff shall deduct the costs of the execution from the proceeds of sale, and retain the balance for fourteen days, and if within that time notice is served on him of a bank- ruptcy petition having been presented against or by the debtor, and the debtor is adjudged bankrupt thereon or on any other petition of which the sheriff has notice, the sheriff shall pay the balance to the trustee in the bank- ruptcy, who shall be entitled to retain the same as against the execution creditor, but otherwise he shall deal with it as if no notice of the presentation of a bankruptcy petition had been served on him. (3.) An execution levied by seizure and sale on the goods of a debtor is not invalid by reason only of its being, an act of bankruptcy, and a person who purchases the goods in good faith under a sale by the sheriff shall in all cases acquire a good title to them against the trustee in bankruptcy. Avoidance of 47_ (i_j Any settlement of property not being a settlement made before me^!™^ ^^ ^ ^^ ™ consideration of marriage, or made in favour of a purchaser or incum- brancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bank- rupt within two years after the date of the settlement, be void against the trustee in the bankruptcy, and shall, if the settlor becomes bankrupt at any subsequent time witmn ten years after the date of the settlement, be void Bankruptcy Act, 1883. 1109 against the truatee in the bankruptcy, unless the parties claiming under the settlement can prove that the settlor was at the time of making the settle- ment able to pay all his debts without the aid of the property comprised ia the settlement, and that the interest of the settlor in such property had passed to the trustee of such settlement on the execution thereofT (2.) Any corenant or contract made in consideration of nmiriage, for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or mterest, whether vested or contingent in possession or remainder and not being money or property of or in right of his wife, shall, on his becoming bankrupt before the property or money has been actually transferred or paid pursuant to the contract or covenant, be void against the trustee in the bankruptcy. (3.) " Settlement " shall for the purposes of this section include any con- veyance or transfer of property. 48. (1.) Every conveyance or transfer of property, or charge thereon Avoidance of made, every payment made, every obligation inciirred, and every judicial prrferences in proceeding taken or suffered by any person unable to pay his debts as they °^™'"' cases. become due from his own money in favour of any creditor, or any person in trust for any creditor, with a view of giving such creditor a preference over the other creditors shall, if the person making, taking, paying, or suffering the same is adjudged bankrupt on a bankruptcy petition presented within . three months after the date of making, taking, paying, or suffering the same, be deemed fraudulent and void as against the trustee in the bank- ruptcy. (2.) This section shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the bankrupt. 49, Subject to the foregoing provisions of this Act with respect to the Protection of effect of bankruptcy on an execution or attachment, and with respect to the ^^ifL^nns avoidance of certain settlements and preferences, nothing in this Act shall -without notice, invalidate, in the case of a bankruptcy — (a) Any payment by the bankrupt to any of his creditors, (b) Any payment or delivery to the bankrupt, (c) Any conveyance or assignment by the bankrupt for valuable con- sideration, (d) Any contract, dealing, or transaction by or with the bankrupt for valuable consideration, Provided that both the following conditions are complied with, namely — (1.) The payment, delivery, conveyance, assignment, contract, dealing, or ti'ansaction, as the case may be, takes place before the date of the receiving order ; and (2.) The person (other than the debtor) to, by, or with whom the pay- ment, delivery, conveyance, assignment, contract, dealing, or trans- action was made, executed, or entered into, has not at the time of the payment, delivery, conveyance, assignment, contract, dealing, or transaction, notice of any available act of bankruptcy committed by the bankrupt before that time. Bealisation of Properly. 60. (1.) The trustee shall, as soon as may be, take possession of the deeds. Possession of books, and documents of the bankrupt, and all other parts of his property £3?^ ^ capable of manual delivery. (2.) The trustee shall, in relation to and for the purpose of acquiring or retaining possession of the property of the bankrupt, be in the same position as if he were a receiver of the property appointed by the High Court, and the Court may on his application, enforce such acquisition or retention accordingly. (3.) Where any part of the property of the bankrupt consists of stock, shares in ships, shares, or any other property transferable in the books of any company, office, or person, the trustee may exercise the right to transfer the property to the same extent as the bankrupt might have exercised it if he had not become bankrupt. (4.) Where any part of the property of the bankrupt is of copyhold or customary tenure, or is any like property passing by surrender and admittance or in any similai' manner, the trustee shall not be compellable to 4p2 1110 46 & 47 Vict. cap. 52. Seizure of property of baiikrupt. - Sequestration of ecclesiafitlcal 34 & 35 Vict. c. 43. 34 & 35 Vict. 0.45. Appropriation of portion of pay or salary to creditors. be admitted to the property, but may deal -witli it in the same mamier as if it had been capable of being and, had "been duly surrendered or otherwise conveyed to such uses as the trustee may appoint ; and any appointee of the trustee shaU be admitted to or otherwise invested with the property accordingly. (5.) Where any part of the property of the bankrupt consists of things in action, such things shall be deemed to have been duly assigned to the trustee. (6.) Any treasurer or other officer, or any banker, attorney, or agent of a bankrupt, shall pay and deliver to the trustee all money and securities in his possession or power, as such officer, banker, attorney, or agent, which he is not by law entitled to retain as against the bankrupt or the trustee. If he does not he shall be guilty of a contempt of court, and may be punished accordingly on the application of the trustee. 61. Any person acting under warrant of the Court may seize any part of the property of a bankrupt in the custody or possession of the baniarupt, or of any other person, and with a view to such seizure may break open any house, building, or room of the bankrupt where the bankrupt is supposed to be, or any building or receptacle of the bankrupt where any of his property is supposed to be ; and where the Court is satisfied that there is reason to believe that property of the bankrupt is concealed in a house or place not belonging to him, the Court may, if it thinks fit, grant a search warrant to any constable or officer of the Court, who may execute it according to its tenor. 52. (1.) Where a bankrupt is a beneficed clergyman, the trustee may apply for a sequestration of the profits of the benefice, and the certificate of the appointment of the trustee shall be sufficient authority for the granting of sequestration without any writ or other proceeding, and the same shaU accordingly be issued as on a writ of levari facias founded on a judgment against the bankrupt, and shall have priority over any other sequestration issued after the commencement of the bankruptcy in respect of a debt provable in the bankruptcy, except a sequestration issued before the date of the receiv- ing order by or on behalf of a person who at the time of the issue thereof had not notice of-an act of bankruptcy committed by the bankrupt, and available for grounding a receiving order against him. (2.) The bishop of the diocese in which the benefice is situate may, if he thinks fit, appoint to the bankrupt such or the like stipend as he might by law have appointed to a curate duly licensed to serve the benefice in case the bankrupt had been non-resident, and the sequestrator shall pay the sum so appointed out of the profits of the benefice to the bankrupt, by quarterly instalments while he performs the duties of the benefice. (3.) The sequestrator shall also pay out of the profits of the benefice the salary payable to any duly Uoensed curate of the church of the benefice in respect of duties performed by him as such during four months before the date of the receiving order not exceeding fifty pounds. (4.) Nothing in this section shall prejudice the operation of the Ecclesi- astical Dilapidations Act, 1871, or the Sequestration Act, 1871, or any mort- gage or charge duly created under any Act of Parliament before the commencement of the bankruptcy on the profits of the benefice. 63. (1 .) Where a bankrupt is an officer of the army or navy, or an officer or clerk or otherwise employed or engaged in the civil service of the Crown, the trustee shall receive for distribution amongst the creditors so much of the bankrupt's pay or salary as the Court, on the application of the trustee, with the consent of the chief officer of the department under which the pay or salary is enjoyed, may direct. Before making any order under this sub- section the Court shall communicate with the chief officer of the department as to the amount, time, and manner of the payment to the trustee, and shall obtain the written consent of the chief officer to the terms of such payment. (2.) Where a bankrupt is in the receipt of a salary or income other than as aforesaid, or is entitled to any half pay, or pension, or to any compensation granted by the Treasury, the Court, on the application of the trustee, shall from time to time make such order as it thinks just for the payment of the salary, income, half pay, pension, or compensation, or of any part thereof, to the tnistee to be applied by him in such manner as the Court may direct. (3.) Nothing in this section shall take away or abridge any power of the chief officer of any publio department to dismiss a bankrupt, or to declare the pension, half pay, or compensation of any bankrupt to be forfeited. Bankruptcy Act, 1883. 1111 64. (1.) Uutil a trustee is appointed tRe official receiver shall be the trustee Vesting and for the purposes of this Act, and immediately on a debtor being adjudged transfer of bankrupt, the property of the bankrupt shall vest in the trustee. property. (2.) On the appointment of a trustee the property shall forthmth pass to and vest in the trustee appointed. (3.) The property of the bankrupt shall pass from trustee to trustee, including under that term the oificial receiver when he fills the office of trustee, and shall vest in the trustee for the time being during his continu- ance in office, without any conveyance, assignment, or transfer whatever. (4.) The certificate of appointment of a trustee diall, for all purposes of any law in force in any part of the British dominions requiring registration, enrolment, or recording of conveyances or assignments of property, be deemed to be a conveyance or assignment of property, and may be registered, enrolled, and recorded accordingly. S6. (1.) Where any part of the property of the bankrupt consists of land of Disclaimer of any tenure burdened with onerous covenants, of shares or stock in companies, onerous of unprofitable contracts, or of any other property that is unsaleable, or not property, readily saleable, by reason of its binding the possessor thereof to the perform- ance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, but subject to the provisions of this section, may, by writing signed by him, at any time within three months after the first appointment of a trustee, disclaun the property. Vrovided that where any such property shall not have come to the know- ledge of the trustee within one month after such, appointment, he may disclaim such property at any time within two months after he first became aware thereof. (2.) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests, and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and shall also discharge the trustee from all personal liabihty in respect of the property disclaimed as from the date when the property vested/ in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the trustee from liability, affect the rights or liabilities of any other person. (3.) A trustee shall not be entitled to disclaim a lease without the leave of the Court, except in any cases which may be prescribed by general rules, and the Court may, before or on granting such leave, require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such orders with respect to fi.xtures, tenant's iniprovements, and other matters arising out of the tenancy as the Court thmks just. (4.) The trustee shall not be entitled to disclaim any property in pursuance of this section in any case where an application in vTriting has been made to the trustee by any person interested in the property requiring him to decide whether he wiU disclaim or not, and the trustee has for a period of twenty- eight days after the receipt of the application, or such extended period as may be allowed by the Court, declined or neglected to give notice whether he disclaims the property or not ; and, in the case of a contract, if the trustee, after such appUoation as aforesaid, does not within the said period or extended period disclaim the . contract, he shall be deemed to have adopted it. (5.) The Court may, on the appUoation of any person who is, as against the trustee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-perform- ance of the contract, or otherwise, as to the Court may seem equitable, and any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy. (6.) The Court may, on application by any person either claiming any interest in any disclaimed property, or under any liability not discharged by this Act in respect of any disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property in or delivery thereof to any person entitled thereto, or to whom it may seem just that the same should be delivered by way of compensation for such liabflity as afore- ma 46 & 47 Vict. cap. 52, Powers of trustee to deal with property. Powers exerciseable by trustee with permission of committee of inspection. said, or a trustee for him, and on such terms as the Court thinks just ; and on any such vesting Older being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose. Provided always, that where the property disclaimed is of a leasehold nature, the Court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as mortgagee by demise except upon the terms of making such person subject to Qie same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the banloniptcy petition was filed, and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and if there shall be no person claiming under the banfanipt who is willing to accept an order upon such terms, the Court shall have power to - vest the bankrupt's estate and interest in the property in any person liable either personally or in a representative character, and either alone or jointly with the bankrupt to perform the lessee's covenants in such lease, freed and discharged from all estates, incumbrances, and interests created therein by the banixupt. (7.) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the injury, and may accordingly prove the same as a debt under the bankruptcy. 56. Subject to the provisions of this Act, the trustee may do all or any of the following things : — ' (1.) Sell all or any part of the property of the bankrupt (including the goodwill of the business, if any, and the book ^ebts due or growing due to the bankrupt), by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels : (2.) Grive receipts for any money received by him, which receipts shall effectually discharge the person paying the money from all responsi- bility in respect of the application thereof : (3.) Prove, rank, claim, and draw a dividend in respect of any debt due to the bankrupt : (4.) Exercise any powers the capacity to exercise which is vested in the trustee under this Act, and execute any powers of attorney, deeds, and other instruments, for the purpose of carrying into effect the provisions of this Act : (5.) Deal with any proi)erty to which the bankrupt is beneficially entitled as tenant in taU in the same manner as the bankrupt might have dealt with it ; and sections fifty-six to seventy-three (both inclusive) of the Act of the session of the third and fourth years of the reign of King WiUiam the Fourth (chapter seventy-four), "for the abolition of fines and recoveries, and for the substitution of more simple modes of assurance," shall extend and apply to proceedings under this Act, as if those sections were here re-enacted and made applicable in terms to those proceedings. 67. The trustee may, with the permission of the committee of inspection, do all or any of the following things : (1.) Carry on the business of the bankrupt, so far as may be necessary for the beneficial winding up of the same : (2.) Bring, institute, or defend any action or other legal proceeding relating tg the property of the bankrupt : (3.) Employ a solicitor or other agent to take any proceedings or do any business which may be sanctioned by the committee of inspection : (4.) Accept as the consideration for the sale of any property of the bank- rupt a sum of money payable at a future time subject to such stipulations as to security and otherwise as the committee think fit: (6.) Mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts : (6.) Kef er a,ny dispute to arbitration, compromise all debts, claims, and liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist between the bankrupt and any person who may have incurred any liability Bankruptcy Act, 1883. 1113 to the bankrupt, on the receipt of such sums, payable at such times, and generally on such terms as may beagreed on : (7.) Make such compromise or other arrangement as may be thought expedient with creditors, or persons claiming to be creditors, in respect of any debts provable under the bankruptcy : (8.) Make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the trustee by any person or by the trustee on any person : (9.) Divide in its existing form amongst the creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readUy or advantageously sold. The jpermission given for the purposes of this section shall not be a general permission to do all or any of the above-mentioned things, but shall only be a permission to do the particular thing or things for which permission is sought in the specified case or cases. Distribution of Property . £8. (1.) Subject to the retention of such sums as may be necessary for the Declaration and sts of administration, or otherwise, the trustee shall, with all convenient distribution of speed, declare and distribute dividends amongst the creditors who have 'Ji"^™*'. proved their debts. (2.) The first dividend, if any, shall be declared and distributed within four months after the conclusion of the first meeting of creditors, unless the trustee satisfies the committee of inspection that there is sufficient reason for postponing the declaration to a later date. (3.) Subsequent dividends shall, in the absence of sufficient reason to the contrary, be declared and distributed at intervals of not more than six months. (4.) Before declaring a dividend the trustee shall cause notice of his intention to do so to be gazetted in the prescribed manner, and shall also send reasonable notice thereof to each creditor mentioned in the bankrupt's statement who has not proved his debt. (5.) When the trustee has declared a dividend he shall send to each creditor who has proved a notice showing the amount of the dividend and when and how it is payable, and a statement in the prescribed form as to the particulars of the estate. 69. (1.) Where one partner of a firm is adjudged bankrupt, a creditor to Joint and whom the bankrupt is indebted jointly with the other partners of the firm, ^^P^*? or any of them, shall not receive any dividend out of the separate property of °'""^''"^- the bankrupt until all the separate creditors have received the fuU amount of their respective debts. (2.) Where joint and separate properties are being administered, dividends of the joint and separate properties shall, subject to any order to the contrary that may be made by the Court on the appUoation of any person interested, be declared together : and the expenses of and incident to such dividends shall be fairly apportioned by the trustee between the joint and separate properties, regard being had to the work done for and the benefit received by each property. 60. In the calculation and distribution of a dividend the trustee shall make Provision for provision for debts provable in bankruptcy appearing from the bankrupt's creators statements, or otierwise, to be due to persons resident in places so distant d2f^ra°&* from the place where the trustee is acting that in the ordinary course of - ' ' communication they have not had sufficient time to tender their proofs, or to establish them if disputed, and also for debts provable in bankruptcy, the subject of claims not yet determined. He shall also make provision for any disputed proofs or claims, and for the expenses necessary for the administra- tion of the estate or otherwise, and, subject to the foregoing provisions, he shall distribute as dividend all money in hand.- 61. Any creditor who has not proved his debt before the declaration of any Right of dividend or dividends diaU be entitled to be paid out of any money for the creditor irtio has time being in the hands of the trustee any dividend or dividends he may S^oredajM«^ have fail^ to receive before that money is applied to the payment of any tion of a future dividend or dividends, but he shall not be entitled to disturb the dividend. 1114 . 46 & 47 Vict. cap. 52. Knal dividend. No action for dividend. Power to allow bankrupt to manage property. Allowance to bankrupt for maintenance or service. Bight of bank- rupt to surplus. distribution of any dividend declared before his debt was proved by reason tbat he has not participated therein. 68. When the trustee has realised all the property of the bankrupt, or so much thereof as can, in the joint opinion of himself and of the committee of inspection, be realised vpitnout needlessly protracting the trusteeship, he shall declare a final dividend, but before so doing he shall give notice in manner prescribed to the persons whose claims to be creditors have been notified to him, but not established to his satisfaction, that if they do not establish their claims to the satisfaction of the Court within a time limited by the notice, he will proceed to make a final dividend, without regard to their claims. After the expiration of the time so limited, or, if the Court on application by any such claimant grant bi-m further time for establishing his claim, then on the expiration of such further time, the property of the bankrupt shall be divided among the creditors who have proved their debts, without regard to the claims of any other persons. 63. No action for a dividend shall lie against the trustee, but if the trustee refuses to pay any dividend the Court may, if it thinks fit, order him to pay it, and also to pay out of his own money interest thereon for the time that it is vrithheld, and the costs of the application. 64. ( 1 .) The trustee, with the permission of the committee of inspection, may appoint the bankrupt himself to superintend the management of the property of the bankrupt or of any part thereof, or to carry on the trade (it any) of the bankrupt for the benefit of his creditors, and in any other respect to aid in administering the property in such manner and on such terms as the trustee may direct. (2.) The trustee may from time to time, with the permission of the com- mittee of inspection, make such allowance as he may think just to the bankrupt out of his property for the support of the bankrupt and his family, or in consideration of his services if he is engaged in winifing up his estate, but any such allowance may be reduced by the Court. 65. The bankrupt shall be entitled to any surplus remaining after payment in full of his creditors, with interest, as by tiiis Act provided, and of the costs, charges, and expenses of the proceedings under the bankruptcy petition. Appointment by Board of Trade of official receivers of debtors' estates. Deputy for official receiver. PART rv. Offioiai; Reobivebs and Staff op Boaed of Teade. 66. (I.) The Board of Trade may, at anytime after the passing of this Act, and from time to time, appoint such persons as they think fit to be ofiioial receivers of debtors' estates, and may remove any person so appointed from such office. The official receivers of debtors' estates shall act under the general authority and directions of the Board of Trade, but shall also be officers of the courts to which they are respectively attached. (2.) The number of official receivers so to be appointed, and the districts to be assigned to them, shall be fixed by the Board of Trade, with the concurrence of the Treasury. One person only shall be appointed for each district unless the Board of Trade, with the concurrence of the Treasury, shall otherwise direct ; but the same person may, with the like concurrence, be appointed to act for more than one district. (3.) Where more than one official receiver is attached to the Court, such one of them as is for the time being appointed by the Court for any particular estate shall be the official receiver for lie purposes of that estate. The Court shall distribute the receiverships of the particular estates among the official receivers in the prescribed manner. 67. (1.) The Board of Trade may from time to time, by order direct that any of its officers mentioned in the order shall be capable of discharging the duties of any official receiver during any temporary vacancy in the office, or during the temporary absence of any official receiver tMough illness or otherwise. (2.) The Board of Trade may, on the application of an offioiai receiver, at any time by order nominate some fit person to be his deputy, and to act Bankruptcy Act, 1883. 1115 for him for such time not exceeding two months as the order may fix, and under such conditions as to remuneration and otherwise as may be prescribed. 68. (1.) The duties of the official receiver shall have relation both to the conduct of the debtor and to the administratiou of his estate. (2.) An official receiver may, for the purpose of affidavits verifying proofs, petitions, or other proceedings under this Act, administer oaths. (3.) All expressions referring to the trustee vmder a bankraptoy shaU, unless the context otherwise requires, or the Act otherwise provides, include the official receiver when acting as trustee. (4.) The trustee shall supply the official receiver with such information, and give him such access to, and facilities for inspecting the bankrupt's books and documents and generally shall give him such aid, as may be requisite for enabling the official receiver to perform his duties under this Act. 69. As regards the debtor, it shall be the duty of the official receiver— (1.) To investigate the conduct of the debtor and to report to the Court, stating whether there is reason to beUeve that the debtor has committed any act which constitutes a misdemeanor under the Debtors Act, 1869, or any amendment thereof, or under this Act, or which would justify the Court in refusing, suspending or qualifying an order for his discharge. (2.) To make such other reports concerning the conduct of the debtor as the Board of Trade may direct. (3.) To take such part as may be directed by the Board of Trade in the public examination of the debtor. (4.) To take such part, and give such assistance, in relation to the prosecu- tion of any fraudulent debtor as the Board of Trade may direct. 70. (1.) As regards the estate of a debtor it shall be the duty of the official receiver — (a.) Pending the appointment of a trustee, to act as interim receiver of the debtor's estate, and, where a special manager is not appointed, as manager thereof : (b.) To authorise the special manager to raise money or make advances for the purposes of the estate in any case where, in the interests of the creators, it appears necessary so to do : (c.) To summon and preside at the first meeting of creditors : (d.) To issue forms of proxy for use at the meetings of creditors : (e.) To report to the creditors as to any proposal which the debtor may have made with respect to the mode of liquidating his affairs : (f.) To advertise the receiving order, the date of the creditors first meeting and of the debtor's public examination, and such other matters as it may be necessary to advertise : (g.) To act as trustee during any vacancy in the office of trustee. (2.) For the purpose of his duties as interim receiver or manager the official receiver shall have the same powers as if he were a receiver and manager appointed by the High Court, but shall, as far as practicable, consult the wishes of the creditors with respect to the management of the debtor's pro- perty, and may for that purpose, if he thinks it advisable, summon meetings of the persons claiming to be creditors, and shall not, unless the Board of Trade otherwise order, incur any expense beyond such as is requisite for the protection of the debtor's property or the disposing of perishable goods. Provided that when the debtor cannot himself prepare a proper statement of affairs, the official receiver may, subject to any prescribed conditions, and at the expense of the estate, employ some person or persons to assist in the preparation of the statement of affairs. (3.) Every official receiver shall account to the Board of Trade and pay over all moneys and deal with all securities in such manner as the Board from time to time direct. 71. The Board of Trade may, at any time after the passing of this Act, and from time to time, with the approval of the Treasury, appoint such additional officers, including official receivers, clerks, and servants (if any) as may be required by the Board for the execution of this Act, and may dismiss any person so appointed. Status of official receiver. Duties of official receiver as regards the debtor's conduct. Buties of official receiver as to debtor's estate. Power for Board of Trade to appoint officers. 1116 46 & 47 Vict. cap. 52. Bemuneration of trustee. PAET V. Teustbes in Bankeumcy. Semuneration of Trustee. 72. (1.) Where the creditors appoint any person to be trustee of a debtor's estate, his remuneration (if any) shall be feed by an ordinary resolution of the creditors or if the creditors so resolve by the Committee of Inspection, and shall be in the nature of a commission or percentage, of which one part shall be payable on the amount realised, after deducting any sums paid to secured creditors out of the proceeds of their securities, and the other part on the amount distributed iu dividend. (2.) If one fourth iu number or value of the creditors dissent from the resolution, or the bankrupt satisfies the Board of Trade that the remunera- tion is unnecessarily large, the Board of Trade shall fe the amount of the remuneration. (3.) The resolution shall express what expenses the remuneration is to cover, and no liability shall attach to the bankrupt's estate, or to the creditors, in respect of any expenses which the remuneration is expressed to cover. (4.) Where no remuneration has been voted to a trustee he shall be allowed out of the bankrupt's estate such proper costs and expenses incurred by him in or about the proceedings of the bankruptcy as the taxing officer may allow. (5.) A trustee shall not, under any circumstances whatever, make any arrangement for or accept from the bankrupt, or any solicitor, auctioneer, or any other person that may be employed about a bankruptcy, any gift, remuneration, or pecuniary or other consideration or benefit whatever beyond the remuneration iixed by the creditors and payable out of the estate, nor shall he make any arrangement for giving up, or give up, any part of his remuneration, either as receiver, manager, or trustee to the bankrupt, or any solicitor or other person that may be employed about a bankruptcy. Allowance and taxation of costs. Costs. 73. (1.) Where a trustee or manager receives remuneration for his services as such no payment shall be allowed iu his accounts in respect of the perform- ance by any other person of the ordinary duties which are required by statute or rules to be performed by himself. (2.) Where the trustee is a solicitor he may contract that the remuneration for his services as trustee shall include all professional services . (3.) All bills and charges of solicitors, managers, accountants, auctioneers, brokers, and other persons, not being trustees, shall be taxed by the pre- scribed officer, and no payments in respect thereof shall be allowed in the trustee's accounts without proof of such taxation having been made. The taxing master shall satisfy himself before passing such bills and charges that the employment of such solicitors and other persons, in respect of the particular matters out of which such charges arise, has been duly sanctioned. (4.) Every such person shall, on request by the trustee (which request the trustee shall make a sufficient time before declaring a dividend), deliver his bin of costs or charges to the proper officer for taxation, and if he fails to do so within seven days after receipt of the request, or such further time as the Court, OD application, may grant, the trustee shall declare and distribute the dividend wiliiout regard to any claim by him, and thereupon any such claim shall be forfeited as well against the trustee personally as against the estate. Payment of money into Bank of England. Receipts, Fayments, Accotmts, Audit. 74. (1.) An account called the Bankruptcy Estates Account shall be kept by the Board of Trade with the Bank of England, and all moneys received by the Board of Trade in respect of proceedings under this Act shall be paid to that account. (2.) The account of the Accoxintantin Bankruptcy at the Bank of England shall be transferred to the Bankruptcy Estates Account. (3.) Every trustee in banlEmptcy shaU, in such manner and at such times Bankruptcy Act, 1883. 1117 as the Board of Trade with the concmrenoe of the Treasury direct, pay the money received by him to the Bsinkniptcy Estates Account at the Bank of England, and the Board of Trade shall furnish him with a certificate of receipt of the money so paid. (4.) Provided that if it appears to the committee of inspection that for the purpose of carrying on the debtor's business, or of obtaining advances, or because of the probable amount of the cash balance, or if the committee shall satisfy the Board of Trade that for any other reason it is for the advantage of the creditors that the trustee should have an account with a local bank, the Board of Trade shall, on the application of the committee of inspection, authorise the trustee to make his payments into and out of such local bank as the committee may select. Such account shall be opened and kept by the trustee in the name of the debtor's estate ; and any interest receivable in respect of the account shall be part of the assets of the estate. The trustee shall make his payments into and out of such local bank in the prescribed manner. (6.) Subject to any general rules relating to small bankruptcies under Part VII. of this Act, where the debtor at the date of the receiving order has an account at a bank, such account shall not be withdrawn until the expiration of seven days from the day appointed for the first meeting of creditors, unless the Board of Trade, for the safety of the account, or other sufficient cause, order the withdrawal of the account. (6.) If a trustee at any time retains for more than ten days a sum exceeding fifty pounds, or such other amount as the Board of Trade in any particular case authorise him to retain, then, unless he explains the retention to the satisfaction of the Board of Trade, he shall pay interest on the amount so retained in excess at the rate of twenty pounds per centum per annum, and shall have no claim for remuneration, and may be removed from his office by the Board of Trade, and shall be liable to pay any expenses occasioned by reason of his default. (7.) All payments out of money standing to the credit of the Board of Trade in the Bankruptcy Estates Account shall be made by the Bank of England in the prescribed manner. 76. No trustee in a bankruptcy or under any composition or scheme of Trustee not to aiTangement shall pay any sums received by him as trustee into his private pay into private baukiig account. '«*°""*- 76. (1.) Whenever the cash balance standing to the credit of the Bank- Investment of ruptcy Estates Account is in excess of the amount which in the opinion of the surplus funds. Board of Trade is required for the time being to answer demands in respect of bankrupts' estates, the Board of Trade shall notify the same to the Treasury, and sh^ pay over the same or any part thereof as the Treasury may require to the Treasury, to such account as the Treasury may direct, and the Treasury may invest the said sums or any part thereof in Grovermneut securities to be placed to the credit of the said account. (2.) Whenever any part of the money so invested is, in the opinion of the Board of Trade, required to answer any demands in respect of bankrupts' estates, the Board of Trade shall notify to the Treasury the amount so required, and the Treasury shall thereupon repay to the Board of Trade such sum as may be required to the credit of the Bankruptcy Estates Account, and for that purpose may direct the sale of such part of the said securities as may be necessary. (3.) The dividends On the investments under this section shall be paid to such account as the Treasury may direct, and regard shall be had to the amount thus derived in fixing the fees payable iu respect of bankruptcy proceedings. 77. The Treasury may from time to time issue to the Board of Trade in aid Certain receipts of the votes of Parliament, out of the receipts arising from fees, fee stamps, ^p]f||*ji''ai'd of and dividends on investments under this Act, any sums which may be expenditure, necessary to meet the charges estimated by the Board of Trade in respect of salaries and expenses under this Act. 78. (1.) Every trustee shall, at such times as maybe prescribed, but not Audit of less than twice in each year during his tenure of office, send to the Board of trustee's Trade, or as they direct, an account of his receipts and payments as such ''°°'"™ ■ trustee. (2.) The account shall be in a prescribed form, shall be made in dupli- 1118 46 & 47 Vict. cap. 52. The trustee to f umlsli list of ci-editors. Books to be kept by trustee. Annual state- ment of pro- ceedings. cate, and shaJl be verified by a statutory declaration in the prescribed form. (3.) The Board of Trade shall cause the accounts so sent to be audited, and for the purposes of the audit the trustee shall furnish the Board with such Touchers and information as the Board may reqtiire, and the Board may at any time require the production of and inspect any books or accounts kept by the trustee. (4.) "When any such account has been audited one copy thereof shall be filed and kept by the Board, and the other copy shall be filed with the Court, and each copy shall be open to the inspection of any creditor, or of the bankrupt, or of any person interested. 79. The trustee shall, whenever required by any creditor so to do, and on payment by such creditor of the prescribed fee, furnish and transmit to such creditor by post a list of the creditors, showing in such list the amount of the debt due to each of such creditors. 80. The trustee shall keep, in manner prescribed, proper books, in which he shall from time to time cause to be made entries or minutes of proceedings at meetings, and of such other matters as may be prescribed, and any creditor of the bankrupt may, subject to the control of the Court, personally or by his agent inspect any such books. 81. (1.) Every trustee in a bankruptcy shall from time to time, as may be prescribed, and not less than once in every year during the continuance of the bankruptcy, transmit to the Board of Trade a statement showing the pro- ceedings in the bankruptcy up to the date of the statement, containing the prescribed particulars, and made out in the prescribed form. (2.) The Board of Trade shall cause the statements so transmitted to be examined, and shall call the trustee to account for any misfeasance, neglect, or omission which may appear on the said statements or in his accounts or otherwise, and may require the trustee to make good any loss which the estate of tiie bankrupt may have sustained by the misfeasance, neglect, or omission. Belease of trustee. Belease of Trustee. 82. (1.) When the trustee has realised all the property of the bankrupt, or so much thereof as can, in his opinion, be realised without needlessly pro- tracting the trusteeship, and distributed a final dividend, if any, or has ceased to act by reason of a composition having been approved, or has re- signed, or has been removed from his office, the Board of Trade shall, on his application, cause a report on his accounts to be prepared, and, on his com- plying with all the requirements of the Board, shall take into consideration the report, and any objection which may be urged by any creditor or person interested against the release of the trustee, and shall either grant or with- hold the release accordingly, subject nevertheless to an appeal to the High Coujt. (2.) Where the release of a trustee is withheld the Court may, on the ap- plication of any creditor or person interested, make such order as it thinks just, charging the trustee with the consequences of any act or default he may have done or made contrary to his duty. (3.) An order of the Board releasing the trustee shall discharge him from aU liability in respect of any act done or default made by him in tiie adminis- tration of the aSairs of the bankrupt, or otherwise in relation to his conduct as trustee, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact. (4.) Where the trustee has not previously resigned or been removed, his release shall operate as a removal of bi-m from his office, and thereupon the official receiver shall be the trustee. OflBeial name of trustee. Official Name. 88. The trustee may sue and be sued by the official name of " the trustee of the property of a bankrupt," inserting the name of the bankrupt, and by that name may in any part of the British dominions or elsewhere hold property of every description, make contracts, sue and be sued, enter into any engagements binding on himself and his successors in office, and do all other acts necessary or expedient to be done in the execution of his office. Bankruptcy Acr, 1883. 1119 Appointment and Memoval. 84. (1.) The creditors may, if they think fit, appoint more persona than Power to one to the office of trustee, and when more persons than one are appointed ^PPoint joint they shall declare whether any act required or authorized to be done by the taS^'™ trustee is to be done by all or any one or more of such persons, but all such persons are in this Act included under the term " trustee," and shall be joint tenants of the property of the bankrupt. (2.) The creditors may also appoint persons to act as trustees in succession in the event of one or more of the persons first named declining to accept the office of trustee, or failing to give security, or not being approved of by the Board of Trade. 8d. If a receiving order is made against a trustee, he shall thereby vacate Offiee of trustee his office of trustee. vacated by 86. (1.) The creditors may, by ordinary resolution, at a meeting specially insolvency, called for that purpose, of which seven days notice has been given, remove a Eemoval of trustee appointed by them, and may at the same or any subsequent meeting '"'s'*^. appoint another person to fill the vacancy as hereinafter provided in case of a vacancy in the office of trustee. (2.) If the Board of Trade are of opinion that a trustee appointed by the creditors is guilty of misconduct, or fails to perform his duties under this Act, the Board may remove him from his office, but if the creditors, by ordi- nary resolution, disapprove of his removal, he or they may appeal against it to the High Court. 87. (1.) If a vacancy occurs in the office of a trustee the creditors in general Proceedings in meeting may appoint a person to fill the vacancy, and thereupon the same case of vacancy proceedings shall be taken as in the case of a first appointment. ^"f^"® °' (2.) The official receiver shall, on the requisition of any creditor, summon *''™'*^- a meeting for the purpose of filling any such vacancy. (3.) If the creditors do not within three weeks after the occurrence of a vacancy appoint a person to fill the vacancy, the official receiver shall report the matter to the Board of Trade, and the Board may appoint a trustee ; but in such case the creditors or committee of inspection shall have the same power of appointing a trustee as in the case of a first appointment. (4.) During any vacancy in the office of trustee the official receiver shall act as trustee. Voting powers of Trustee. 88. The vote of the trustee, or of his partner, clerk, solicitor, or solicitor's Limitation of clerk, either as creditor or as proxy for a creditor, shall not be reckoned in J^'^Jf Po^^™ of the majority required for passing any resolution affecting the remuneration ^' or conduct of the trustee. Control over Trustee. 89. (1.) Subject to the provisions of this Act the trustee shall, in the Discretionary administration of the property of the bankrupt and in the distribiltion thereof f^F^ "'^ amongst his creditors, have regard to any directions that may be given by control ttereof . resolution of the creditors at any general meeting, or by the committee of inspection, and any directions so given by the creditors at any general meeting shall in case of conflict be deemed to override any directions given by the committee of inspection. (2. ) The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors, by resolution, either at the meeting appointing the trustee or otherwise may direct, or whenever requested in writing to do so by one-fourth in value of the creditors. (3.) The trustee may apply to the Court in manner prescribed for directions ia relation to any particiiar matter arising under the bankruptcy. (4.) Subject to the provisions of this Act the trustee shall use his own dis- cretion in the management of the estate and its distribution among the creditors. 90. If the bankrupt or any of the creditors, or any other person, is Appeal to Court aggrieved by any act or decision of the trustee, he may apply to the Court, against trustee. and the Court may confirm, reverse, or modify the act or decision complained of, and make such order in the premises as it thinks just. 1120 46 & 47 Vict. cap. 52. Control of Board of Trade over trustees. 91. (1.) The Board of Trade shall take oognizanoe of the conduct of trustees, and in the event of any trustee not faithfully performing his duties, and duly observing all the requirements imposed on him by statute, rules or otherwise, with respect to the performance of his duties, or in the event of any complaint being made to the Board by any creditor in regard thereto, the Board shall inquire into the matter and take such action thereon as may be deemed expedient. (2.) The Board may at any time require any trustee to answer any inquiry made by them in relation to any bankruptcy in which the trustee is engaged, and may, if the Board think fit, apply to the Court to examine on oath the trustee or any other person concerning the bankruptcy. (3.) The Board may also direct a local investigation to be made of the books and vouchers of the trustee. Jurisdiction to be exercised by Higli Court and county courts. Consolidation of London Bank- ruptcy Court ■with Supreme Court of Judicature. Transaction of banlaniptcy business by special judge of High Court. PART VI. CoNSTirOTION, PEOOBmrBE, AKD POWBES OF COTJEI. Jurisdiction. 9S. (1.) The Courts having jurisdictibn in bankruptcy shall be the High Court and the county courts. (2.) But the Lord Chancellor may from time to time, by order under his hand, exclude any county court from having jurisdiction in bankruptcy, and for the purposes of banlanaptoy jurisdiction may attach its district or any part thereof to the High Court, or to any other county court or courts, and may from time to time revoke or vary any order so made. The Lord Chan- cellor may, in Hke manner and subject to the like conditions, detach the district of any county court or any part thereof from the district and juris- diction of the High Court. (3.) The term " district," when usedJn this Act with reference to a county court, means the district of the court for the purposes of bankruptcy juris- diction. (4.) A county court which, at the commencement of this Act, is excluded from having bankruptcy jurisdiction, shall continue to be so excluded until the Lord Chancellor otherwise orders. (5.) Periodical sittings for the transaction of bankruptcy business by county courts having jurisdiction in bankruptcy shall be holden at such times and at such intervals as the Lord Chancellor shall prescribe for each such court. 93. (1.) From and after the commencement of this Act the London Bank- ruptcy Court shall be united and consolidated with and form part of the Supreme Court of Judicature, and the jurisdiction of the London Bankruptcy Court shall be transferred to the High Court. (2.) For the purposes of this union, consolidation, and transfer, and of all matters incidental thereto and consequential thereon, the Supreme Court of Judicature Act, 1873, as amended by subsequent Acts, shall, subject to the provisions of this Act, have effect as if the imion, consolidation, and transfer had been effected by that Act, except that all expressions referring to the time appointed for the commencement of that Act shall be construed as referring to the commencement of this Act, and, subject as aforesaid, this Act and the said above-mentioned Acts shall be read and construed together. 94. (1.) Subject to general rules, and to orders of transfer made under the authority of the Supreme Court of Judicature Act, 1873, and Acts amend- ing it,— (a) All matters pending in the London Bankruptcy Court at the commence- ment of this Act ; and (b) AH matters which would have been within the exclusive jurisdiction of the London Bankruptcy Court, if this Act had not passed ; and (c) All matters in respect of which jurisdiction is given to the High Court by this Act, shall be assigned to such Division of the High Court as the Lord Chancellor may from time to time direct. Bankruptcy Act, 1883. 1121 (2.) All Buoli matters shall, subject as aforesaid, te ordinarily transacted and disposed of by or under the direction of one of the judges of the High Court, and the Lord Chancellor shall from time to time assign a judge for that purpose. (3.) Provided that during vacation, or during the illness of the judge so assigned, or during his absence or for any other reasonable cause such matters, or any part thereof, may be transacted and disposed of by or imder the directions of any judge of the High Court named for that purpose by the Lord Chancellor. (4.) Subject to the provisions of this Act, the officers, clerts, and subordinate persons who are, at the commencement of this Act, attached to the London Bankruptcy Court, and their successors, shall be officers of the Supreme Court of Judicature, and shall be attached to the High Court. (6.) Subject to general rules, all bankruptcy matters shall be entitled, ' ' In bankruptcy." 95. n.) If the debtor against or by w^hom a bankruptcy petition is pre- Petition, where sented has resided or carried on business within the London bankruptcy dis- *" ^ presented, triot as defined by this Act for the greater part of the six months immeifiately preceding the presentation of the petition, or for a longer period during those six months than in the district of any county court, or is not resident in England, or if the petitioning creditor is unable to ascertain the residence of the debtor, the petition shall be presented to the High Court. (2.) In any omer case the petition shall be presented to the county court for the district in which the debtor has resided or carried on business for the longest period during the six months immediately preceding the presentation of the petition. (3.) Nothing in this section shall invalidate a proceeding by reason of its being taken in a wrong court. 96. The London Bankruptcy District shall, for the purposes of this Act, Definition of the comprise the city of London and the liberties thereof, and all such parts of LondonBank- the metropolis and other places as are situated vrithin the district of any '^P'*>' -Uistnct. county court described as a metropolitan county court in the list contained in the Third Schedule. 97. (1.) Subject to the provisions of this Act, every court having orignal Ti'ansfer of pro- jurisdiction in bankruptcy shaU have jurisdiction throughout England. °^^t'to '™'t (2.) Any proceedings in bankruptcy may at any time, and at any stage ^ ' thereof, and^ either with or without appUcatinn from any of the parties thereto, be transferred by any prescribed authority and in the prescribed manner from one court to another court, or may by the like authority be retained in the court in which the proceedings were commenced, although it may not be the court in which the proceedings ought to have been com- menced. (3.) If any question of law arises in any bankruptcy proceeding in a county court which all the parties to the proceeding desire, or which one of them and the judge of the cbunty court may desire, to have determined in the first instance in the High Court, the judge shall state the facts, in the form of a special ease, for the opinion of tite High Court. The special case and the proceedings, or such of them as may be required, shall be transmitted to the High Court for the purposes of the determination. 98. Subject to the provisions of this Act and to general rules the judge of Exercise in the High Court exercising jurisdiction in bankruptcy may exercise in cham- S??^^^' hers the whole or any part of his jurisdiction. junsdiction 99. (1.) The registrars in bankruptcy of the High Court, and the regis- jurigajetionin trars of a county court having jurisdiction in bankruptcy, shall have the banki-uptcy of powers and jurisdiction in this section mentioned, and any order made or act registrar. done by such registrars in the exercise of the said powers and jurisdiction shall be deemed the order or act of the Court. (2.) Subject to general rules limiting the powers conferred by this section, a registrar shall have power — (a) To hear bankruptcy petitions, and to make receiving orders and adju- dications thereon : (b) To hold the public examination of debtors : (o) To grant orders of discharge where the application is not opposed : (d) To approve compositions or schemes of arrangement when they are not opposed : (e) To make interim orders in any case of urgency : 1122 46 & 47 Vict. cap. 52. Powers of county court. Board of Trade to make pay- ments in accordance ■with directions of Court. General power of bankruptcy courts. (f) To make any order or exercise any jurisdiction which by any rule in that behalf is prescribed as proper to be made or exercised in chambers : (g) To hear and determine any unopposed or ex parte application : (h) To summon and examine any person known or suspected to have in his possession effects of the debtor or to be indebted to him, or capable of giving information respecting the debtor, his dealings or property. (3.) The registrars in bankruptcy of the High Court shall also have power to grant orders of discharge and certificates of removal of disqualifications, and to apprQve compositions and schemes of arrangement. (4.) A registrar shall not have power to commit for contempt of Court. (5.) The Lord Chancellor may from time to time by order direct that any specified re^strar of a county court shall have and exercise all the powers of a bankruptcy registrar of the High Court. 100. A. county court shall, for the purposes of its bankruptcy jurisdiction, in addition to the ordinary powers of the Court, have all the powers and jurisdiction of the High Court, and the orders of the Court may be enforced accordingly in manner prescribed. 101. Where any moneys or funds have been received by an official receiver or by the Board of Trade, and the Court makes an order declaring that any person is entitled to such moneys or funds the Board of Trade shaU make an order for the payment thereof to the person so entitled as aforesaid. 102. (1.) Subject to the provisions of this Act, every Court having juris- diction in bankruptcy under this Act shall have full power to decide all ques- tions of priorities, and all other questions whatsoever, whether of law or fa^it, which may arise in any case of bankruptcy coming within the cognizance of the Court, or which the Couit may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case. Provided that the jurisdiction hereby given shall not be exercised by the county court for the purpose of adjudicating upon any claim, not arising out of the bankruptcy, which might heretofore have been enforced by action in the High Court, unless all parties to the proceeding consent thereto, or the money, money's worth, or right ia dispute does not in the opinion of the judge exceed in value two hundred pounds. (2.) A Court having jurisdiction in bankruptcy under this Act shall not be subject to be restrained in the execution of its powers under this Act by the order of any other Court, nor shall any appeal lie from its decisions, except in manner directed by this Act. (3.) If in any proceeding in bankruptcy there arises any question of fact which either of the parties desire to be tried before a jury instead of by the Court itself, or which the Court thinks ought to be tried by a jury, the Court may if it thinks fit direct the trial to be had with a jury, and the trial may be had accordingly, in the High Court in the same manner as if it were the trial of an issue of fact in an action, and in the county court in the manner in which jury trials in ordinary cases are by law held in that Court. (4.) Where a receiving order has been made in the High Court under this Act, the judge by whom such order was made shall have power, if he sees fit, without any further consent, to order the transfer to such judge of any action pending in any other division, brought or continued by or against the bankrupt. (5.) Where default is made by a trustee, debtor, or other person in obeying any order or direction given by the Board of Trade or by an official receiver or any other officer of the Board of Trade under any power conferred by this Act, the Court may, on the application of the Board of Trade or an official receiver or other duly authorised person order such defaulting trustee, debtor, or person to comply with the order or direction so given ; and the Court may also, if it shall think fit, upon any such application make an immediate order for the committal of such defaulting trustee, debtor, or other person; provided that the power given by this subsection shall be deemed to be in addition to and not in substitution for any other right or remedy in respect of such default. Bankruptcy Act, 1883. 1123 Judgmmt Debtors. 108. ^1.) It shall be lawful for the Lord Chancellor by order to direct that Judgment the junsdiotion and powers under section five of the Debtors Act, 1869, debtor|^ sum- now vested in the High Court, shall be assigned to and exercised by the bankraptcy judge to whom bankruptcy business is assigned. business. (2.) It shall be lawful also for the Lord Chancellor in like manner to direct that the whole or any part of the said jurisdiction and powers shall be delegated to and exercised by the bankruptcy registrars of the High Court. (3.) Any order made under this section may, at any time, in Kke manner, be rescinded or varied. (4.) Every county court within the jurisdiction of which a judgment debtor is or resides shall have jurisdiction under section five of the Debtors Act, 1869, although the amount of the judgment debt may exceed fifty pounds. (5.) Where, under section five of the Debtors Act, 1869, application is made by a judgment creditor to a Court, having bankruptcy jurisdiction, for the committal of a judgment debtor, the Court may, if it thinks fit, decline to commit, and in lieu thereof, with the consent of the judgment creditor, and on payment by him of the prescribed fee, make a receiving order against the debtor. In such case the judgment debtor shall be deemed to have committed an act of bankruptcy at the time the order is made. (6.) General rules under this Act may be made for the purpose of carrying into effect the provisions of the Debtors Act, 1869. Appeah. 104. (1.) Every Court having jurisdiction in bankruptcy under this Act Appeals in may review, rescind, or vary any order made by it under its bankruptcy bankruptcy, jurisdiction. (2.) Orders in bankruptcy matters shall, at the instance of any person aggrieved, be subject to appeal as follows : (a.) An appeal shall lie from the order of a county court to Her Majesty's Court of Appeal : (i.) An appeal shall lie from the order of the High Court to Her Majesty's Court of Appeal : («.) An appeal shall, with the leave of Her Majesty's Court of Appeal, but not otherwise, lie from the order of that Court to the House of Lords: i^.) No appeal shall be entertained except iu conformity with such general rufes as may for the time being be in force in relation to the appeal. Troeedwe. 106. (1.) Subject to the provisions of this Act and to general rules, the Discretionary costs of and incidental to any proceeding in Court under this Act shall be in P"^ "' *® the discretion of the Court : Provided that where any issue is tried by a jury the costs shall follow the event, unless, upon application made at the trial, for good cause shown, the judge before whom such issue is tried shall other- wise order. (2.) The Court may at any time adjourn any proceedings before it upon such terms, if any, as it may think fit to impose. (3.) ,The Court may at any time amend any written process or proceedmg under this Act upon such terms, if any, as it may think fit to impose. (4.) Where by this Act or by general rules, the time for doing any act or thing is limited, the Court may extend the time either before or after the expiration thereof, upon such terms, if any, as the Court may think fit to impose. (6.) Subject to general rules, the Court may in any matter take the whole or any part of the evidence either vivi voce, or by interrogatories, or upon afBdavit, or by commission abroad. . • i (6.) For the purpose of approving a composition or scheme by joint debtors, the Court may, if it thinks fit, and on the report of the official receiver that it is expedient so to do, dispense with the public examination of one of such joint debtors if he is unavoidably prevented from attending the examination by illness or absence abroad. von. II.— S. "* E 1124 46 & 47 Vict. cap. 52. Consolidation of petitions. Power to ch aT ige carriage of proceedings. Continiianee of proceedings on death of debtor. Power to stay proceedings. Power to present petition against one partner. Power to dismiss petition against some respon- dents only. Property of partoers to be vested in same trustee. Actions by trustee and bankrupt's partners. Actions on joint contracts. partnership name. 106. Wliere two or more baniruptoy petitions are presented against the same debtor or against joint debtors, the oonrt may consolidate the pro- ceedings, or any of them, on such terms as the conrt thinks fit. 107. Where the petitioner does not proceed with due dUigenoe on his petition, the conrt may substitute as petitioner any other creditor to whom the debtor may be indebted in the amount required by this Act in the case of the petitioning creditor. 108. If a debtor by or against whom a bankruptcy petition has been presented dies, the proceedings in the matter shall, unless the conrt other- wise orders, be continued as if he were alive. 109. The court may at any time, for sufficient reason, make an order staying the proceedings under a bankruptcy petition, either altogether or for a limited time, on such terms and subject to such conditions as the court may think just. 110. Any creditor whose debt is sufficient to entitle him to present a bankruptcy petition against all the partners of a firm may present a petition against any one or more partners of the firm without including the others. 111. Where there are more respondents than one to a petition the court may dismiss the petition as to one or more of them, without prejudice to the effect of the petition as against the other or others of them. 113, Where a receiving order has been made on a, bankruptcy petition against or by one member of a partnership, any other bankruptcy petition against or by a member of the same partnerdup shall be filed in or transferred to the court in which the first-mentioned petition is in course of prosecution, and, unless the court otherwise directs, tiie same trustee or receiver shall be appointed as may have been appointed in respect of the property of the first- mentioned member of the partnership, and the court may give such directions for consolidating the proceedings under the petitions as it thinks just. 113. Where a member of a partnership is adjudged bankrupt, the court may authorise the trustee to commence and prosecute any action in the names of the trustee and of the bankrupt's partner ; and any release by such partner of the debt or demand to which the action relates shall be void ; but notice of the application for authority to commence the action shall be given to him, and he may show cause against it, and on his application the court may, if it thinks fit, direct that he shall receive his proper share of the proceeds of the action, and if he does not claim any benefit therefrom he shall be indemnified against costs in respect thereof as the court directs. 114. Where a bankrupt is a contractor in respect of any contract jointiy with any person or persons, such j)erson or persons may sue or be sued in respect of the contract without the joinder of the bankrupt. 116. Any two or more persons, being partners, or any person carrying on business under a partnership name, may take proceedings or be proceeded against under this Act in the name of the firm, but in such case the court may, on application by any person interested, order the names of the persons who are partners in such firm, or the name of such person to be disclosed in su^h manner, and verified on oath, or otherwise as the court may direct. Disabilities of officers. Enforcement of orders of courts throughout the Unitea Ejng- dom. 116. (1.) No registrar or other officer attached to any court having juris- diction in bankruptcy shall, during his continuance in office, be capable of being elected or sitting as a member of the House of Commons. (2.) No registrar or official receiver or other officer attached to any such court shall, during his continuance in office, either directiy or indirectly, by himself, his clerk, or partner, act as solicitor in any proceeding in bankruptcy or in any prosecution of a debtor by order of the court, and 3 he does so act he shall be liable to be dismissed from office. Provided that nothing in this section shall affect the right of any registrar or officer appointed before the passing of this Act to act as solicitor by himself, his clerk, or partner to the extent permitted by section sixty-nine of the Bankruptcy Act, 1869. Orders and TTurrants of Court. 117. Any order made by a court having jurisdiction in bankruptcy in England under this Act abiall be enforced in Scotiand and Ireland in the courts having jurisdiction in bankruptcy in those parts of the United Kingdom respectively, in the same manner in aU respects as if the order had Bankruptcy Act, 1883. 1125 been made by the court hereby required to enforce it ; and in like manner any order made by a court having iurisdiction in baniruptoy in Scotland shall be enforced in England and Ireland, and any order made by a court having jurisdiotion in bankruptcy in Ireland shall be enforced in England and Scotland by the courts respectively having jurisdiction in bankruptcy in the part of the United Kingdom where the orders may require to be enforced, and in the same manner in all respects as if tho order had been made by the court required to enforce it in a case of bankruptcy within its own jurisdiction. 118. The High Court, the county courts, the courts having jurisdiotion in courts to be bankruptcy in Scotland and Ireland, and every British court elsewhere auxiliary to eacli having jurisdiction in bankruptcy or insolvency, and the officers of those otter. courts respectively, shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of the court seeking aid, with a request to another of the said courts, shall be deemed sufficient to enable the latter court to exercise, in regard to the matters directed by the order, such jurisdiction as either the court which made the request, or the court to which the request is made, could exercise in regard to t^imilar matters within their respective jurisdictions. 119. (1.) Any warrant of a court having jurisdiction in bankruptcy in Warrants of England may be enforced in Scotland, Ireland, the Isle of Man, the Channel Bankruptcy- Islands, and elsewhere in Her Majesty's dominions, in the same manner and Courts, subject to the same privileges in and subject to which a warrant issued by any justice of the peace against a person for an indictable oflEence against the laws of England may be executed in those parts of Her Majesty's dominions respectively in pursuance of the Acts of Parliament in that behalf. (2.) A search warrant issued by a court having jurisdiction in bankruptcy for the discovery of any property of a debtor may be executed in manner prescribed or in the same manner and subject to the same privileges in and subject to which a search warrant for property supposed to be stolen may be executed according to law. 120. Where the court commits any person to prison, the commitment may Commitment to be to such convenient prison as the court thinks expedient, and if the gaolor prison. of any prison refuses to receive any prisoner so committed he shall be liable for every such refusal to a fine not exceeding one hundred pounds. PART VII. SmaiiL Bankbttfioies. 121. When a petition is presented by or against a debtor, if the court Summary is satisfied by affidavit or otherwise, or the official receiver reports to the ^^'i'*^'"" court that the property of the debtor is not likely to exceed in value three hundred pounds, the court may make an order that the debtor's estate be administered in a summary manner, and thereupon the provisions of this Act shall be subject to the following modifications : (1.) If the debtor is adjudged bankrupt the official receiver shall be the trustee in the bankruptcy : _ (2.) There shall be no committee of inspection, but the official receiver may do with the permission of the Board of Trade all things which may be done by the trustee with the permission of the committee of inspection : . . . ' (3.) Such other modifications may be made in the provisions of this Act as may be prescribed by general rules («) with the view of saving ex- pense and simplifying prooedui-e ; but nothing in this section shall permit the modification of the provisions of this Act relating to the examination or discharge of the debtor. Provided that the creditors may at any time, by special resolution, resolve that some person other than the official receiver be appointed trustee in the bankruptcy, and thereupon the bankruptcy shall proceed as if an order for summary administration had not been made. (a) Rules of Deo. 1, 1883, have been made. 4e2 1126 46 & 47 Vict. cap. 52. Power for county court to make adminis- tration order instead of order for payment by instalments. 122. (1.) Where a judgment has teen obtained in a county court and the debtor is unable to pay the amount forthwith, and alleges that his whole indebtedness amounts to a sum not exceeding fifty pounds, inclusive of the debt for which the judgment is obtained, the county court may make an order providing for the administration of his estate, and for the payment of his debts by instalments or otherwise, and either in full or to such extent as to the county court under the circumstances of the case appears practicable, and subject to any conditions as to his future earnings or income which the court may think just. (2.) The order shall not be invalid by reason only that the total amount of the debts is found at any time to exceed fifty pounds, but in such case the county court may, if it thinks fit, set aside the order. (3.) Where, in the opinion of the county court in which the judgment is obtained, it would be convenient that that court should administer the estate, it shaU cause a certificate of the judgment to be forwarded to the county court in the district of which the debtor or the majority of the creditors i esides or reside, and thereupon the latter county court shall have all the powers which it would have under this section, had the judgment been obtained in it. (4.) Where it appears to the registrar of the county court that property of the debtor exceeds in value ten pounds, he shall, at the request of any creditor, and without fee, issue execution against the debtor's goods, but the house- hold goods, wearing apparel, and bedding of the debtor or his family, and the tools and implements of his trade to the value in the aggregate of twenty pounds, shall to that extent be protected from seizure. (.■5.) When the order is made no creditor shall have any remedy against the person or property of the debtor in respect of any debt which the debtor has notified to a county court, except with the leave of that county court, and on such terms as that court may impose ; and any county court or inferior court in which proceedings are pending against the debtor in respect of any such debt shall, on receiving notice of the order, stay the proceedings, but may allow costs already incurred by the creditor, and such costs may, on application, be added to the debt notified. (6.) if ithe debtor makes default in payment of any instalment payablein pursuance of any order under this section, he shall, unless the contrary is proved, be deemed to have had since the date of the order the means to pay the sum in respect of which he has made defatilt and to have refused or neglected to pay the same. (7.) The order shall be carried into effect in such manner as may be pre- scribed by general rules. , (8.) Money paid into court under the order shall be appropriated first in satisfaction of the costs of the plaintiff in the action, next in satisfaction of the costs of administration (which shall not exceed two shillings in the pound on the total amount of the debts) and then in liquidation of debts in accordance with the order. (9.) Notice of the order shall be sent to the registrar of county court judg- ments, and be posted in the of&ce of the county court of the district in which the debtor resides, and sent to every creditor notified by the debtor, or who has proved. (10.) Any creditor of the debtor, on proof of his debt before the registrar, shall be entitled to be scheduled as a creditor of the debtor for the amount of his proof. (11.) Any creditor may in the prescribed manner object to any debt scheduled, or to the manner in wMoh payment is directed to be made by instalments. (12.) Any person who after the date of the order becomes a creditor of the debtor, shall, on proof of his debt before the registrar, be scheduled as a creditor of the debtor for the amount of his proof, but shall not be entitled to a,ny dividend under the order until those creditors who are scheduled as having been creditors before the date of the order have been paid to the extent provided by the order. (13.) When the amount received under the order is sufficient to pay each creditor scheduled to the extent thereby provided, and the costs of the plain- tiff and of the administration, the order shall be superseded, and the debtor shall be discharged from his debts to the scheduled creditors. (14.) In computing the salary of a registrar under the County Courts Acts every creditor scheduled, not being a judgment creditor, shall count as a plaint. Bankruptcy Act, 1883. 1127 PART VIII. Supplemental Peovisions. Application of Act. 123. A receiving order shall not be made against any corporation, or Exclusion of against any partnership or association, or company registered under the partnerships Companies Act, 1862. and companies. 131. If a person having privilege of Parliament commits an act of hank- Privilege of ruptoy, he may be dealt with under this Act in like manner as if he had not Parliament, such privilege. 126. (1.) Any creditor of a deceased debtor whose debt would have been Administration sufficient to support a bankruptcy petition against such debtor, had he been in bankruptcy alive, may present to the court a petition in the prescribed form praying for person dvin" an order for the administration of the estate of the deceased debtor, accord- insolvent^ ° ing to the Law of Bankruptcy. (2.) Upon the prescribed notice being given to the legal personal repre- sentative of the deceased debtor, the court may, in the prescribed manner, upon proof of the petitioner's debt, unless the court is satisfied that there is a reasonable probability that the estate will be sufficient for the payment of the debts owing by the deceased, make an order for the administration in bankruptcy of the deceased debtor's estate, or may upon cause shown dismiss such petition with or without costs. (3.) An order of administration under this section shall not be made until the expiration of two months from the date of the grant of probate or letters of administration, unless with the concurrence of the legal personal repre- sentative of the deceased debtor, or unless the petitioner proves to the satis- faction of the court that the debtor committed an act of bankruptcy within three months prior to Ms decease. (4.) A petition for administration under this section shall not be presented to the coiirt after proceedings have been commenced in any court of justice for the administration of the deceased debtor's estate, but that court may in such case, on the application of any creditor, and on proof that the estate is insufficient to pay its debts, transfer the proceedings to the court exercising jurisdiction in bankruptcy, and thereupon such last-mentioned covirt may, in the prescribed manner, make an order for the administration of the estate of the deceased debtor, and the hke consequences shall ensue as under an administration order made on the petition of a creditor. (5 . ) Upon an order being made for the administration of a deceased debtor' s estate, the property of the debtor shall vest in the official receiver of the court, as trustee thereof, and he shall forthwith proceed to realise and dis- tribute the same in accordance with the provisions of this Act. (6.) With the modifications hereinafter mentioned, all the provi< l^^l' ''^^^^ ^ adjudged bankrupt in respect of a debt contracted before 1861. Power to make general rules. the passing of that Act. Fees and remuneration. Judicial salaries, &c. Annual accounfa of receipts and , expenditure in respect of bauioTiptcy proceedings. General Rules. 127. (1.) The Lord Chancellor may from time to time, with the concur- rence of the President of the Board of Trade, make, reroke, and alter general rules for carrying into effect the objects of tliis Act (a). (2.) All general rules made under the foregoing provisions of this section shall be laid before Parliament within three weeks after they are made if Parliament is then sitting, and if Parliament is not then sitting, within three weeks after the beginning of the then next session of Parliament, and shall be judicially noticed, and shall have effect as if enacted by this Act. (3.) Such general rules as may be required for purposes of this Act may be made at any time after the passing of this Act. (4.) Provided always, that the said general rules, so made, revoked, or altered, shall not extend the jurisdiction of the court. (5.) After the commencement of this Act no general rule under the pro- visions of this section shall come into operation until the expiration of one month after the same has been made and issued. Fees, Salaries, Expenditure, and Seturns. 128. (1.) The Lord Chancellor may, with the sanction of the Treasury, from time to time prescribe a scale of fees and percentages to be charged for or in respect of proceedings under this Act ; and the Treasury shall direct by whom and in what manner the same are to be collected, accounted for, and to what account they shall be paid. The Board of Trade, with the coucm:- rence of the Treasury, shall direct whether any and what remuneration is to be allowed to any officer of, or person attached to, the Board of Trade, performing any duties under this Act, and may from time to time vary, increase, or diminish such remuneration as they may see fit. (2.) This section shall come into operation on the passing of this Act. 129. (1.) The Lord Chancellor, with the concurrence of the Treasury, shall direct whether any and what remuneration is to be allowed to any person (other than an officer of the Board of Trade) performing any duties under this Act, and may from time to time vary, increase, or diminish such remuneration as he may think fit. (2.) This section shall come into operation on the passing of this Act. ISO. (1.) The Treasury shall annually cause to be prepared and laid before both houses of Parliament an account for the year ending with the thirty-first day of March, showing the receipts and expenditure during that year in respect of bankruptcy proceedings, whether commenced under this or any previous Act, and the provisions of section twenty-eight of the Supreme Court of Judicature Act, 1875, shall apply to the account as if the account had been required by that section. (2.) The accounts of the Board of Trade, under this Act, shall be audited (a) Under this section the Bank- ruptcy Rules, 1886, have been made. They are divided into five parts : — Part I. (rr. 6—134) deals with "Court Procedure" ; Part II. (rr. 135—271) with " Proceedings from Act of Bank- ruptcy to Discharge"; Part III. (rr. 271—279) with "Special Pro- cedures:" viz., (a) small bank- ruptcies, under sect. 121, supra ; and (b) administration of estate of persons dying intestate, under sect. 125, sufra; Part IV. (rr. 280—346^ with "Officers, Trustees, Audit, &c. ; " and Part V. (rr. 347—362) with " Miscellaneous Matters." Non-compHance with the ndes does not render any proceeding void unless the court so (firects, but such proceeding may be set aside, or amended, or otherwise dealt with in such manner and upon such terms as the court may think fit : rule 360. Rules as to Administration Orders, under sect. 122, supra, have also been made. They are dated Dec. 1, 1883. Bankkxjptcy Act, 1883. 1129 in suoh manner as the Treasury from time to time direct, and, for the pur- pose of the aooount to be laid before Parliament, the Board of Trade shall make such returns, and give such information as the Treasury may from time to time direct. ISl. The registrars and other officers of the courts acting in bank- Eetuxnsby ruptoy shall make to the Board of Trade such returns of the business of their bankruptcy respective courts and offices, at such times and in such manner and form as °^'^'^- may be prescribed, and from suoh returns the Board of Trade shall cause books to be prepared which shall, under the regulations of the Board, be open for public information and searches. The Board of Trade shall also cause a general annual report of aU matters, judicial and financial, within this Act, to be prepared and laid before both houses of Parliament. Svidenee. 132. (1.) A copyoftheLondonGazettecontainingany notice inserted therein Gazette to be in pursuance of this Act shall be evidence of the facts stated in the notice. evidence. {2.) The production of a copy of the London Gazette containing any notice of a receiving order, or of an order adjudging a debtor bankrupt, shall be conclusive evidence in all legal proceedings of the order having been duly made, and of its date. 133. (1.) A minute of proceedings at a meeting of creditors under this Evidence of Act, signed at the same or the next ensuing meeting-, by a person describing prooeeaingj at himself as, or appearing to be, chairman of the meeting at which the minute CTeditora is signed, shall be received in evidence without further proof. (2.) Until the contrary is proved, every meeting of creditors in respect of the proceedings whereof a minute has been so signed shall be deemed to have been duly convened and held, and all resolutions passed or proceedings had thereat to have been duly passed or had. _ 134. Any petition or copy of a petition in bankruptcy, any order or cer- Evidence of tificate or copy of an order or certificate made by any Court having jurisdic- proceedings in tion in bankruptcy, any instrument or copy of an instrument, affidavit, or '""*™Pt''y- document made or used in the course of any bankruptcy proceedings, or other proceedings had under this Act, shall, if it appears to be sealed with the seal of any court having jurisdiction in bankruptcy, or purports to be signed by any judge thereof, or is certified as a true copy by any registrar thei-eof, be receivable in evidence in all legal proceedings whatever. 135. Subject to general rules, any affidavit to be used in a bankruptcy Sweai-ing of court may be sworn before any person authorised to administer oaths in the affidavits. High Court, or in the Court of Chancery of the county palatine of Lancaster, or before any registrar of a bankruptcy court, or before any officer of a bankruptojr court authorised in writing on that behalf by the judge of the court, or, in the case of a person residing in Scotland or in Ireland, before a judge ordinaiy, magistrate, or justice of the peace, or, in the case of a person who is out of the Kingdom of Great Britain and Ireland, before a magistrate or justice of the peace or other person qualified to administer oaths in the country where he resides (he being certified to be a magistrate or justice of the peace, or qualified as aforesaid by a British minister or British consul, or by a notary public). 186. In case of the death of the debtor or his wife, or of a witness whose Deatb of evidence has been received by any court in any proceeding under this Act, witness, the deposition of the person so deceased, purporting to be sealed with the seal of the court, or a copy thereof purporting to be so sealed, shall be admitted as evidence of the matters therein deposed to. 137. Every court have jurisdiction in bankruptcy under this Act shall Bankruptcy have a seal describing the court in such manner as may be directed by order Courts to have of the Lord Chancellor, and judicial notice shall be taken of the seal, and ^®*^- of the signature of the judge or registrar of any such court, in all legal proceedings. 138. A certificate of the Board of Trade that a person has been appointed Certiflcate of trustee under this Act, shall be conclusive evidence of his appointment. ^^^''™^''' °^ 139. Where by this Act an appeal to the High Court is given against any decision of the Board of Trade, or of the official receiver, the appeal shall be BoSofTmde brought within twenty-one days from the time when the decision appealed to High Court, against is pronounced or made. 140. (1.) All documents purporting to be orders or certificates made or Proceedings of Board of 'Arade. 1130 46 & 47 Vict. cap. 52. Oomputation of time. Service of notices. issued by the Board of Trade, and to be sealed witli the seal of the Board, or to be signed by a secretary or assistant secretary of the Board, or any person authorised in that behaH by the President of the Board, shaU be received in evidence, and deemed to be such orders or certificates without further proof unless the contrary is shown. (2.) A certificate signed by the President of the Board of Trade that any order made, certificate issued, or act done, is the order, certificate, or act of the Board of Trade shall be conclusive evidence of the fact so certified. Time. 141. (1.) Where by this Act any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any. proceeding, then in the computation of that limited time the same shall be taken as exclusive of the day of that date or of the happening of that event, and as commencing at the beginning of the next following day ; and the act or proceeding shall be done or taken at latest on the last day of that limited time as so computed, unless the last day is a Sunday, Chxistoias Day, Grood Friday, or Monday or Tuesday in Easter "Week, or a day appointed for public fast, humiliation, or thanksgiving, or a day on which the court does not sit, in which case any act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, which shall not be one of the days in this section specified. (2.) Where by this Act any act or proceeding is directed to be done or taken on a certain day, then if that day happens to be one of the days in this section specified, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, which shall not be one of the days in this section specified. Notices. 142. All notices and other documents for the service of which no special mode is directed may be sent by prepaid post letter to the last known address of the person to be served therewith. Formal Defects. Formal detect 143. (1.) No proceeding in bankruptcy shall be invalidated by any formal not to invalidate defect or by any irregularity, unless the court before which an objection is proceedings. made to the proceeding is of opinion that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of that court. (2.) No defect or irregularity in the appointment or election of a receiver, trustee, or member of a committee of inspection shall vitiate any act done by him in good faith. Stamp Duty. 144. Every deed, conveyance, assignment, surrender, admission, or other assurance relating solely to freehold, leasehold, copyhold, or customary pro- perty, or to any mortgage, charge, or other incumbrance on, or any estate, right, or interest in any real or personal property which is part of the estate of any bankrupt, and which, after the execution of the deed, conveyance, assign- ment, surrender, admission, or other assurance, either at law or in equity, is or remains the estate of the bankrupt or of the trustee under the bankruptcy, and every power of attorney, proxy paper, writ, order, certificate, affidavit, bond, or otiier instrument or writing relating solely to the property of any bankrupt, or to any proceeding under any bankruptcy, shall be exempt from stamp duty, except in respect of fees under this Act. Executions. 145. Where the sheriff sells the goods of a debtor under an execution for a sum exceeding twenty pounds (including legal incidental expenses), the sale shall, unless the court from which the process issued otherwise orders, be made by public auction, and not by bill of sale or private contract, and shall be publicly advertised by the sheriff on and during three days next preceding the day of sale. 146. (1.) The sheriff shall not under a writ of elegit deliver the goods of a debtor, nor shall a writ of elegit extend to goods. Exemption of deeds, &c. from -stamp duty. Sales under executions to be public. Writ of elegit not to extend to Bankruptcy Act, 1883. 1131 (2.) No writ of levari facias shall hereafter be issued in any civil pro- ceeding. Bankrupt Trustee. 147. Where a bankrupt is a trustee within the Trustee Act, 1850, section Aiipli<»tion of thirty-two of that Act shaU have effect so as to authorise the appointment of haStafntCTof a new trustee in substitution for the bankrupt (whether voluntarily resigning trustee. or not), if it appears expedient to do so, and all provisions of that Act, and of any other Act relative thereto, shall have effect accordingly. Corporations, ^e. 148. Per all or any of the purposes of this Act a corporation may act by any Acting of of its officers authorised in that behalf under the seal of the corporation, a corporations, firm may act by any of its members, and a lunatic may act by his committee partners, &c. or curator bonis. Construction of former Acts, fc, 149. (1.) Where in any Act of Parliament, instrument, or proceeding Construction of passed, executed, or taken before the commencement of this Act mention is A"** mention- made of a commission of bankruptcy or fiat in bankruptcy, the same shall be o"^^2^^tcy" construed, with reference to the proceedings under a bankrupt»y petition, as &o. if a commission of or a fiat in banloruptcy had been actually issued at the time of the presentation of such petition. (2.) Where by any Act or instrument, reference is made to the Bankruptcy Act, 1869, the Act or instrument shall be construed and have effect as if reference were made therein to the corresponding provisions of this Act. 160. Save as herein provided the provisions of this Act relating to the Certain pro;- remedies against the property of a debtor, the priorities of debts, the eflPect of Y?^°^ *° ''""^ a composition or scheme of arrangement, and the effect of a discharge shall ^ °^™' bind the Crown. 161. Nothing in this Act, or in any transfer of jurisdiction effected thereby Saving for shall take away or affect any right of audience that any person may have had existing rights at the commencement of this Act, and all solicitors or other persons who o*s,uaience. had the right of audience before the Chief Judge in Bankruptcy shaU have the bke right of audience in bankruptcy matters in the High Court. 1S8. Nothing in this Act shall afl'ect the provisions of the Married Married Women's Property Act, 1882. ■"'"°«''- Transitory Provisions. 163. (1.) The existing comptroller in bankruptcy and his officers, clerks. Comptroller of and servants shall- not be attached to the Supreme Court, but shall in all bankruptcy, &c. respects act under the directions of the Board of Trade. ^°- ^^"^ ^*™- (2.) The existing offiioial assignee, provisional and official assignee of the estates and effects of insolvent debtors, and receiver of the Insolvent Debtors' Court, together with his staff, the official solicitors and the messenger in bankruptcy, together with his staff, and the accountant in bankruptcy and his staff, and also such other officers and clerks of the London Bankruptcy Court as the Lord Chancellor, with the concurrence of the Board of Trade, may at any time select, shall be transferred to and become officers of the Board of Trade ; provided that the Board of Trade, with the concurrence of the Lord Chancellor, may at any time transfer any such officer or clerk from the Board of Trade to the Supreme Court. (3.) Subject to the provisions of this Act they shall hold their offices by the same tenure and on the same terms and conditions, and be entitled to the same rights in respect of salary and pension as heretofore, and their duties shall, except so far as altered with their own consent, be such as in the opinion of the Board of ^rrade are analogous to those performed by them at the commencement of this Act. (4.) On the occurrence, at any time after the passing of this Act, of any vacancy in the office of any of the said persons the Board of Trade may, with the approval of the Treasury, make such arrangement as they think fit, either for the abolition of the office, or for its continuance under modified conditions, and may appoint a fit person tu perform the remaining duties thereof, and the person so appointed shall have all the powers and authori- ties of the person who is at the passing of this Act the holder of such office ; 1132 46 & 47 Vict. cap. 52. Power to abolish existing offices. Performance of new duties by persons whose offices ai'e abolished. Selection of persons from holders of abolished offices. Acceptance of public employ- ment by annui- tants. Superannuation of registrars, &c. Transfer of estates on and all estates, rights, and effects vested at the time of the vacancy in any such officer shall by virtue of such appointment become vested in the person so appointed, and the like appointment on a vacancy shall be made, and the Hke vesting shall have effect from time to time as occasion requires : Pro- vided that any person so appointed shall be an officer of the Board of Trade, and shall in aU respects act under the directions of the Board of Trade. (S.) The Board of Trade may, with the approval of the Lord Chancellor, from time to time direct that any duties or functions, not of a judicial cha- racter, relating to any banlcruptcies, insolvencies, or other proceedings under any Actprior to the Bankruptcy Act, 1869, which were, at the time of the passing of this Act, performed or exercised by registrars of county courts, shall devolve on and be performed by the official receiver, and thereupon all powers and authorities of the registrar, and all estates, rights, and effects vested in the registrar shall become vested in the official receiver. 154. (1.) If the Lord Chancellor is of opinion that any office attached to the London Bankruptcy Court at the passing of this Act is unnecessary, he may, with the concurrence of the Treasury, at any time after the passing of this Act, abolish the office. (2.) The Treasury may, on the petition of any person whose office or em- ployment is abolished by or under this Act, on the commencement of this Act or on any other event, inquire whether any, and if any, what compensa- tion ought to be made, to the petitioner, regard being had to the conditions on which his appointment was made, the nature of Ms office or employment, and the duration of his service ; and if they think that his claim to compen- sation is established, may award to him, out of moneys to be provided by Parliament, such compensation, by annuity or otherwise, as under the cir- cumstances of the case they think just and reasonable. (3.) The Board of Trade may, under the Hke conditions and on the like terms, abolish any of the offices in the last preceding section mentioned. 165. (1.) The Lord Chancellor or Board of Trade may, at any time after the passing of this Act appoint any person whose office is abofished under this Act to some other office under this Act, the duties of which he is in the opinion of the Lord Chancellor or Board competent to perform. Provided that the person so appointed shall during his tenure of the new office receive an amount of annual remuneration which, together with the compensation for the loss of the abolished office, is not less than the emoluments of the abolished office. (2.) When, after the commencement of this Act, any officer is continued in the performance of any duties relating to bankruptcy or insolvency, under any previous Act, the Lord Chancellor, or, as the case may be, the Board of Trade may order that such officer may, in addition to such duties, perform any analogous duties under this Act, without being entitled to receive any additional remuneration. 156. Every person appointed to any office or employment imder this Act shall in the first instance be selected from the persons (if any) whose office or employment is abolished under this Act, unless in the opinion of the Lord Chancellor, or in the case of persons to be appointed by the Board of Trade, of that Board, none of such persons are fit for such office or employment ; Provided that the person so appointed or employed shall during his tenure of the new office be entitled to receive an amount of remuneration which, together with the compensation (if any) for loss of the abolished office, shall be not less than the emolument of the abolished office. 157. If any person to whom a compensation annuity is granted under this Act accepts any public employment, he shall, daring the continuance of that employment, receive oiily so much (if any) of that annuity as, with the remuneration of that employment, will amount to a sum not exceeding the salary or emoluments in respect of the loss whereof the annuity was awarded, and if the remuneration of that employment is equal to or greater than such salary or emoluments the annuity diall be suspended so long as he receives that remuneration. 158. The registrars, clerks, and other persons holding their offices at the passing of this Act who may be continued in their offices, shall, on then' retirement therefrom, be allowed such superannuation as they would have been entitled to receive if this Act had not been passed, and they had continued in their offices under the existing Acts. 169. In every liquidation by arrangement under the Bankruptcy Act, Bankruptcy Act, 1883. 1133 1869, pending at the commencement of this Act, if at any time after the vacancy of office commencement of this Act there is no trustee acting in. the liquidation by Sn^aiaon" reason of death, or for any other cause, such of the official receivers of ^der the bankrupts estates as is appointed by the Board of Trade for that purpose BamkruptoyAct, shall become and be the trustee in the liquidation, and the property of the 1869. liquidating debtor shall pass to and vest in him accordingly [a) ; but this provision shall not prejudice the right of the creditors in the liquidation to appoint a new trustee, in manner directed by the Bankruptcy Act, 1869, or the rules thereunder ; and on such appointment the property of the liqui- dating debtor shall pass to and vest in the new trustee. The provisions of this Act with respect to the duties and responsibOities of and accounting by a trustee in a bankruptcy under this Act shall apply, as nearly as may be, to a trustee acting under the provisions of this section. 160. Where a bankruptcy or liquidation by arrangement under the Transfer of out- Bankruptcy Act, 1869, has been or is hereafter closed, any property of the '^??"^^™I„£ bankrupt or liquidating debtor which vested in the trustee and has not been ta^nptcy or realised or distributed shall vest («) in such person as may be appointed by the liquidation. Board of Trade for that purpose, and he shall thereupon proceed to get in, reahse, and distribute the property in like manner and with and subject to the like powers and obligations as far as applicable, as if the bankruptcy or liquidation were continuing, and he were acting as trustee thereunder. 161. In every bankruptcy under the Bankruptcy Act, 1869, pending at Transfer of the commencement of this Act, where a registrar of the London Bankruptcy ™^fS„™°S Court, or of any county court, is or would hereafter but for this enactment L^on Court to become the trustee under the bankruptcy, such of the official receivers of official receiver. bankrupts estates as may be appointed by the Board of Trade for that pur- pose shall from and after the commencement of this Act be the trustee in the place of the registrar, and the property of the bankrupt shall pass to and vest (a) in the official receiver accordingly. Unclaimed Funds or Dividends. 163. (I.) "Where the trustee, under any bankruptcy, composition or scheme Unclaimed and pursuant to this Act, shall have under his control any unclaimed dividend^ untotributed which has remained unclaimed for more than six months, or where, after funa^^ciOT this making a final dividend, such trustee shall have in his hands or under his andformerActs. control any unclaimed or undistributed moneys arising from the property of the debtor, he shall forthwith pay the same to the Bankruptcy Estates Account at the Bank of England. The Board of Trade shall furnish him with a certificate of receipt of the money so paid, which shall be an effectual discharge to him in respect thereof. (2.) («.) Where, after the passing of this Act, any unclaimed or undis- tributed funds or dividends in the hands or under the control of any trustee or other person empowered to collect, receive, or distribute any funds or dividends under any Act of Parliament mentioned in the Fourth Schedule, or any petition, resolution, deed, or other proceeding under or in pursuance of any such Act, have remained or remain unclaimed or undistributed for six months after the same became claimable or distributable, or in any other case for two years after the receipt thereof by such trustee or other person, it shall be the duty of such trustee or other person forthwith to pay the same to the Bankruptcy Estates Account at the Bank of England. The Board of Trade shall furnish such trustee or other person with a certificate of receipt of the money so paid, which shall be an effectual discharge to him in respect thereof. (i.) The Board of Trade may at any time order any such trustee or other person to submit to them an account verified by affidavit of the sums received and paid by him under or in pursuance of any such petition, resolution, deed, or other proceeding as aforesaid, and may direct and enforce an audit of the account. (c.) The Board of Trade, with the concurrence of the Treasury, may from time to time appoint a person to collect and get in all such unclaimed or un- distributed funds or dividends, and for the purposes of this section any court having jurisdiction in bankruptcy shall have and at the instance of the (a) See 50 &61 Vict. o. 66, a. 6 (1). 1134 46 & 47 Vict. cap. 52. person so appointed, or of the Board of Trade, may exercise all the powers conferred by this Act -with respect to the discoTery and reaUsation of the property of a debtor, and the provisions of Part I. of this Act with respect thereto shall, with any necessary modifications, apply to proceedings under this section. (3.) The proTisions of this section shall not, except as expressly declared herein, deprive any person of any larger or other right or remedy to which he may be entitled against such trustee or other person. (4.) Any person claiming to be entitled to any moneys paid in to the Bankruptcy Estates Account pursuant to this section may apply to the Board of Trade for payment to him of the same, and the Board of Trade, if satisfied that the person claiming is entitled, shall make an order for the payment to such person of the sum due. Any person dissatisfied with the decision of the Board of Trade in respect of his claim may appeal to the High Court. (3.) The Board of Trade may at any time after the passing of this Act open the account at the Bank of England referred to in this Act as the Bankruptcy Estates Account. Extension of penal provisions of 32 & 33 Vict, c. 62, to petition- ing debtors, &o. Power for Court to order prose- cution on report of ofScial receiver. Power for Court to commit for trial. Public Prosecu- tor to act in certain cases. Criminal liability after dischai^e or composition. Funishment of Fratiduhnt Debtors. 163. (1.) Sections eleven and twelve of the Debtors Act, 1869, relating to the punishment of fraudulent debtors and imposing a penalty for absconding with property, shall have effect as if there were substituted therein for the words "if after the presentation of a bankruptcy petition against him," the words, " if after the presentation of a bankruptcy petition by or against him." (2.) The provisions of the Debtors Act, 1869, as to offences by bankrupts shall apply to any person whether a trader or not in respect of whose estate a receiving order has been made as if the term "bankrupt" in that Act included a person in respect of whose estate » receiving order had been made. 164. Section sixteen of the Debtors Act, 1869, shall be construed and have effect as if the term "a trustee in any bankruptcy" included the official receiver of a bankrupt's estate, and shall apply to offences under this Act as well as to offences under the Debtors Act, 1869. 165. (1.) Where there is, in the opinion of the court, ground to believe that the bankrupt or any other person has been guilty of any offence which is by statute made a misdemeanor in cases of bankruptcy, the court may commit the bankrupt or such other person for trial. (2.) For the purpose of committing the bankrupt or such other person for trial the court shall have all the powers of a stipendiary magistrate as to taking depositions, binding over witnesses to appear, admitting the accused to bail, or otherwise. Nothing in this sub-section shall be construed as derogating from the powers or jurisdiction of the High Court. 166. Where the court orders the prosecution of any person for any offence under the Debtors Act, 1869, or Acts amending it, or for any offence arising out of or connected with any bankruptcy proceedings, it shall be thei duty of the Director of Public Prosecutions to institute and carry on the prosecution. 167. Where a debtor has been guilty of any criminal offence he shall not be exempt from being proceeded against therefor by reason that he has obtained his discharge or that a composition or scheme of arrangement has been accepted or approved. Interpretation of terms. Interpretation. 168. (1.) In this Act, unless the context otherwise requires — "The court" means the court having jurisdiction in bankruptcy under this Act : "Affidavit " includes statutory declarations, affirmations, and attestations on honour : " Available act of bankruptcy " means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the petition on which the receiving order is made : Bankruptcy Act, 1883. 1135 "Debt provable ia bankruptcy " or "provable debt" includes any debtor . liability by this Act made provable in bankruptcy : " Gazetted" means published in the London Gazette : " General rules " include forms : " Goods " includes all chattels personal: " High Court " means Her Majesty's High Court of Justice : "Local bank" means any bank in or in the neighbourhood of the bank- ruptcy district in -which the proceedings are taken : "Oath" includes affirmation, statutory declaration, and attestation on honour : " Ordinary resolution " means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution : "Person" includes a body of persons corporate or unincorporate : "Prescribed" means prescribed by general rules -within the meaning of this Act : ' ' Property ' ' includes money, goods, things in action, land, and every description of property, -whether real or personal, and -whether situate in England or elsewhere ; also, obligations, easements, and every descrip- tion of estate, interest and profit, present or future, vested or contin- gent, arising out of or incident to property as above defined : " Besolution " means ordinary resolution : " Secured creditor " means a person holding a mortgage charge or lien on the property of the debtor, or any part thereof, as a security for a debt due to him from the debtor : " Schedule " means schedule to this Act : "Sheriff" includes any officer charged with the execution of a writ or other process : " Special resolution " means a resolution decided by a majority in number and three fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution : " Treasury " means the Commissioners of Her Majesty's Treasury : " Trustee " means the trustee in bankruptcy of a debtor's estate. (2.) The schedules to this Act shall be construed and have effect as part of this Act. Repeal. 169. (1.) The enactments described in the Fifth Schedule are hereby Eepealof repealed as from the commencement of this Act to the extent mentioned in ™B,otinents. that Schedule. (2.) The repeal effected by this Act shall not affect — (a) anything done or suffered before the commencement of this Act under any enactment repealed by this Act ; nor (b) any right or privilege acquired, or duty imposed, or liability, or dis- qualification incurred, under any enactment so repealed ; nor (c) any fine, forfeiture, or other punishment incurred or to be incurred in respect of any offence committed or to be conmiitted against any enactment so repealed ; nor (d) the institution or continuance of any proceeding or other remedy, whether under any enactment so repealed, or otherwise, for ascer- taining any such liability or disqualification, or enforcing or re- covering any such fine, forfeiture, or punishment, as aforesaid. (3.) Notwithstanding the repeal effected by this Act, the proceedings under any bankruptcy petition, liquidation by arrangement, or composition with creditors under the Bankruptcy Act, 1869, pending at the commence - ment of this Act shall, except so far as any provision of this Act is expressly applied to pending proceedings, continue, and all the provisions of the Bank- ruptcy Act, 1869, shall, except as aforesaid, apply thereto, as if this Act had not passed. 170. After the passing of this Act no composition or liquidation by arrange- Proceedings ment under sections 125 and 126 of the Bankruptcy Act, 1869, shaU be entered ^der 32 & 33 into or allowed without the sanction of the court or registrar having juris- ^| i^' {\^ us diction in the matter ; such sanction shall not be granted unless the compo- sition or liquidation appears to the court or registrar to be reasonable and calculated to benefit the general body of creditors. (a) See 50 & 51 Vict. o. 66. 1136 46 & 47 Vict. cap. 52. SCHEDULES. Section IB. THE FIRST SCHEDULE. Meetings of Cbbditoes. 1. The first meeting of creditors stall be summoned for a day not later than fourteen days after the date of the receiving order, unless the court for any special reason deem it expedient that the meeting be summoned for a later day. 2. The official receiver shall summon the meeting by giving not less than seven days notice of the time and place thereof in the London Gazette and in a local paper. 3. The official receiver shaU also, as soon as practicable, send to each creditor mentioned in the debtor's statement of afiairs, a notice of the time and place of the first meeting of creditors, accompanied by a summary of the debtor's statement of affairs, including the causes of his failure, and any observations thereon which the official receiver may think fit to make ; but the proceedings at the first meeting shall not be invalidated by reason of any such notice or summary not having been sent or received before the meeting. 4. The meeting shall be held at such place as is in the opinion of the official receiver most convenient for the majority of the creditors. 6. The official receiver or the trustee may at any time summon a meeting of creditors, and shall do so whenever so directed by the court, or so requested in writing by one-fourth in value of the creditors. 6. Meetings subsequent to the first meeting shall be summoned by sending notice of the time and place thereof to each creditor at the address given in his proof, or if he has not proved, at the address given in the debtor's state- ment of affairsj or at such other address as may be known to the person summoning the meeting. 7. The official receiver, or some person nominated by him, shaU be the chairman at the first meeting. The chairman at subsequent meetings shall be such person as the meeting by resolution appoint. 8. A person shall not be entitled to vote as a creditor at the first or any other meeting of creditor unless he has duly proved a debt provable in bank- ruptcy to be due to hiTn from the debtor, and the proof has been duly lodged before the time appointed for the meeting. 9. A creditor diall not vote at any such meeting in respect of any unliquidated or contingent debt, or any debt the value of which is not ascertained. 10. Eor the purpose of voting, a secured creditor shall, unless he sur- renders his security, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him, after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to have surrendered his security unless the court on application is satisfied that the omission to value the security has arisen from inadvertence. 11. A creditor shaU not vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him unless he is willmg to treat the liability to him thereon of every person who is liable thereon antecedently to the debtor, and against whom a receiving order has not been made, as a security in his hands, and to estimate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof. 12. It shall be competent to the trustee or to the official receiver, within twenty-eight days after a proof estimating the value of a security as aforesaid has been made use of in voting at any meeting, to require the creditor to give up the security for the benefit of the creditors generally on payment of the value so estimated, with an addition thereto of twenty per centum. Provided, that where a creditor has put a value on such security, he may, at any time before he has been required to give up such security as aforesaid, correct such valuation by a new pi'oof, and Bankruptcy Act, 1883. 1137 deduct such new value from his debt, but in that case such addition of twenty per centum shall not be made if the trustee requires the security to be given up. 13. If a receiving order is made against one partner of a firm, any creditor to whom that partner is indebted jointly with the other partners of the firm, or any of them, may prove his debt for the purpose of voting at any meeting of creditors, and shall be entitled to vote thereat. 14. The chairman of a meeting shall have power to admit or reject a proof for the purpose of voting, but his decision shaU be subject to appeal to the court. If he is in doubt whether the proof of a creditor should be admitted or rejected he shall mark the proof as objected to and shall allow the creditor to vote, subject to the vote being declared invalid in the event of the objection being sustained. 15. A creditor may vote either in person or by proxy. 16. Every instrument of proxy shall be in the prescribed form, and shall be issued by the ofSoial receiver, or, after the appointment of a trustee, by the trustee, and every insertion therein shall be in the handwriting of the person giving the proxy. 17. A creditor may give a general proxy to his manager or clerk, or any other person in his regular employment. In such case the instrument of proxy shall state the relation in which the person to act thereunder stands to the creditor. 18. A creditor may give a special proxy to any person to vote at any speci- fied meeting, or adjournment thereof, for or against any specific resolution, or for or against any specified person as trustee, or member of a committee of inspection. 19. A proxy shall not be used unless it is deposited with the ofBoial re- ceiver or trustee before the meeting at which it is to be used. 20. Where it appears to the satisfaction of the court that any solicitation has been used by or on behalf of a trustee or receiver in obtaining proxies or in procuring the trusteeship or receivership, except by the direction of a meeting of creditors, thi court shall have power, if it think fit, to order that no remuneration shall be allowed to the person by whom or on whose behalf such solicitation may have been exercised, notwithstanding any resolution of the committee of inspection or of the creditors to the contrary. 21. A creditor may appoint the official receiver of the debtor's estate to act in manner prescribed as his general or special proxy. 22. The chairman of a meeting may, with the consent of the meeting, adjourn the meeting from time to time, and from place to place. 23. A meeting shall not be competent to act for any purpose, except the election of a chairman, the proving of debts, and the adjournment of the meeting, unless there are present, or represented thereat, at least three creditors, or all the creditors if their number does not exceed three. 24. If within half an hour from the time appointed for the meeting a quorum of creditors is not present or represented, the meeting shall be ad- journed to the same day in the following week at the same time and place, or to such other day as the chairman may appoint, not being less than seven or more than twenfy-one days. 25. The chairman of every meeting shall cause minutes of the proceedings at the meeting to be drawn up, and fairly entered in a book kept for that purpose, and the minutes shall be signed by him or by the chairman of the next ensuing meeting. 26. No person acting either under a general or special proxy shall vote in favour of any resolution -which would cfirectly or indirectly place himseH, his partner or employer, in a position to receive any remuneration out of the estate of the debtor othervnse than as a creditor rateably with ihe other creditors of the debtor. Provided that where any person holds special proxies to vote for the appointment of himself as trustee he may use the said proxies and vote accordingly. 1138 46 & 47 Vtct. cap. 52. Section 39. THE SECOND SCHEDULE. Peoof op Debts. Proof in ordinary Oases. 1. Every creditor shall prove his debt as soon as may be after the making of a receiving order. 2. A debt may be proved by delivering or sending through the post in a prepaid letter to the official receiver, or, if a trustee has been appointed, to the trustee, an affidavit verifying the debt. 3. The affidavit may be made by the creditor himself, or by some person authorised by or on behalf of the creditor. If made by a person so autho- rised it shall state his authority and means of knowledge. 4. The affidavit shall contain or refer to a statement of account showing the particulars of the debt, and shall specify the vouchers, if any, by which the same can be substantiated. The official receiver or trustee may at any time call for the production of the vouchers. 5. The affidavit shall state whether the creditor is or is not a secured creditor. 6. A creditor shall bear the cost of proving his debt, unless the court otherwise specially orders. 7. Every creditor who has lodged a, proof shall be entitled to see and examine tiie proofs of other creditors before the first meeting, and at all reasonable times. 8. A creditor proving his debt shall deduct therefrom all trade discounts, but he shall not be compelled to deduct any discount, not exceeding five per centum on the net amount of his claim, which he may have agreed to allow for payment in cash. Froof by secured Creditors. 9. If a secured creditor realises his security, he may prove for the balance due to him, after deducting the net amount realised. 10. If a secured creditor surrenders his security to the official receiver or trustee for the general benefit of the creditors, he may prove for his whole debt. 11. If a secured creditor does not either realise or surrender his security, he shall, before ranking for dividend, state in his proof the particulars of Ms security, the date when it was given, and the value at which he assesses it, and shall be entitled to receive a dividend only in respect of the balance due to him after deducting the value so assessed. 12. (a.) "Where a security is so valued, the trustee may at any time redeem it on payment to the creditor of the assessed value. (b.) If the trustee is dissatisfied with the value at which a security is assessed, he may require that the property comprised in any security so valued be oflfered for sale at such times and on such terms and conditions as may be agreed on between the creditor and the trustee, or as, in default of such agreement, the court may direct. If the sale be by public auction the creditor, or the trustee on behalf of the estate, may bid or purchase. (o.) Provided that the creditor may at any time, by notice in writing, require the trustee to elect whether he will or will not exercise his power of redeeming the security or requiring it to be realised, and if the trustee does not, within six months after receiving the notice, signify in writing to the creditor his election to exercise the power, he shall not be entitled to exercise it ; and the equity of redemption, or any other interest in the property comprised in the security which is vested in the trustee, shall vest in the creditor, and the amount of his debt shall be reduced by the amount at which the security has been valued. 13. Where a creditor has so valued his security, he may at any time amend the valuation and proof on showing to the satisfaction of the trustee, or the court, that the valuation and proof were made bon3.fide on a mistaken estimate, or that the security has diminished or increased in value since its previous valuation ; but every such amendment shall be made at the cost of the creditor, and upon such terms as the court shall order, uulesB the trustee shall allow the amendment without application to the court. Bankeuptcy Act, 1883. 1139 14. Where a valuation has been amended in accordance with the foregoing rule, the creditor shall forthwith repay any surplus dividend which he may have received in excess of that to which he would have been entitled on the ameuded valuation, or, as the case may be, shall be entitled to be paid out of any money for the time being available for dividend any dividend or share of dividend which he may have failed to receive by reason of the inaccuracy of the original valuation, before that money is made applicable to the payment of any future dividend, but he shall not be entitled to disturb the distribu- tion of any dividend declared before the date of the amendment. 15. If a creditor after having valued his security subsequently realises it, or if it is realised under the provisions of Rule 12, the net amount realised shall be substituted for the amount of any valuation previously made by the creditor, and shall be treated in all respects as an amended valuation made by the creditor. 16. If a secured creditor does not comply with the foregoing rules he shall be excluded from all share in any dividend. 17. Subject to the provisions of Rule 12, a creditor shall in no case receive more than twenty shillings in the pound, and interest as provided by this Act. Froqf in respect of Distinct Contracts. 18. If a debtor was at the date of the receiving order liable in respect of distinct contracts as a member of two or more distinct firms, or as a sole contractor, and also as member of a firm, the circumstance that the iirms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of the contracts, against the properties respectively liable on the contracts. periodical Payments. 19. When any rent or other payment falls due at stated periods, and the receiving order is made at any time other than one of those periods, the person entitled to the rent or payment may prove for a proportinate part thereof up to the date of the order, as if the rent or payment grew due from day to day. Interest. 20. On any debt or sum certain, payable at a certain time or otherwise, whereon interest is not reserved or agreed for, and which is overdue at the date of the receiving order and provable in bankruptcy, the creditor may prove for interest at a rate not exceeding four per centum per annum to the date of the order from the time when the debt or sum was payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made giving the debtor notice that interest will be claimed from the date of the demand imtil the time of payment. Debt payable at a future time. 21. A creditor may prove for a debt not payable when the debtor com- mitted an act of bankruptcy as if it were payable presently, and may receive dividends equally with the other creditors, deducting only thereout a rebate of interest at the rate of five pounds per centum per annum computed from the declaration of a dividend to the time when the debt would have become payable, according to the terms on which it was contracted. Admission or Rejection of Proofs. 22. The trustee shall examine every proof and the grounds of the debt, and in writing admit or reject it, in whole or in part, or require further evidence in support of it. If he rejects a proof he shall state in writing to the creditor the grounds of the rejection. 23. If the trustee thinks that a proof has been improperly admitted, the court may, on the application of the trustee, after notice to the creditor who made the proof, expunge the proof or reduce its amount. 24. If a creditor is dissatisfied with the decision of the trustee in respect of a proof, the court may, on the application of the creditor, reverse or vary the decision. 25. The court may also expunge or reduce a proof upon the application of VOL. 11. — S. 4 F 1140 46 & 47 Vict. cap. 52. Section 96. Section 162. a creditor if the trustee declines to interfere in the matter, or, in the case of a composition or scheme, upon the application of the debtor. 26. For the purpose of any of his duties in relation to proofs, the trustee may administer oaths and take affidavits. 27. The official receiver, before the appointment of a trustee, shall have all the powers of a trustee ■with respect to the examination, admission, and rejection of proofs, and any act or decision of his in relation thereto shall be subject to the like appeal. THE THIRD SCHEDULE. List of Mbtbopoeitan Couimr Couets. The Bloomsbury County Court of Middlesex. The Bow County Court of Middlesex. The Brompton County Court of Middlesex. The ClerkenweU County Court of Middlesex. The Lambeth Comity Court of Surrey. The Marylebone County Court of Middlesex. The Shoreditch County Court of Middlesex. The Southwark County Court of Surrey. The Westminster County Court of Middlesex. The Whitechapel County Court of Middlesex. THE rOUBTH SCHEDULE. Statutes eelatino to Unclaimed Dividembs. Session and Chapter. 7 & 8 Vict. c. 70 12 & 13 Vict. u. 106 24 & 25 Vict. c. 134 32 & 33 Vict. c. 71 Title of Act. An Act for facilitating arrangements between debtors and creditors. The Bankruptcy Law Consolidation Act, 1849. The Bankruptcy Act, 1861. The Bankruptcy Act, 1869. Section 169. 13 Edw 1 e. 18. in part. 32 & 33 Vict. . 62. in part. 32 & 33 Vict. c .71. 32 & 33 Vict. c .83. in part. 33 & 34 Vict. 76. 34 & 36 Vict. c 50. 38 & 39 Vict. c 77. in part. THE EIETH SCHEDULE. Enactments Rbpbaxbd as to ENonAND. The statutes of Westminster the second, chapter eighteen. Execution either by levying of the lands and goods, or by delivery of goods and half the land ; at the choice of the creditor ; in part ; namely, the words " all the chattels of the debtor saving only his oxen and beasts of the plough, and " The Debtors Act, 1869. in part ; namely. Sub-section (J) of section five, and Sections twenty-one and twenty-two. The Bankruptcy Act, 1869. The Bankruptcy Repeal and Insolvent Court Act, 1869. in part ; namely. Section nineteen. The Absconding Debtors Act, 1870. The Bankruptcy Disqualification Act, 1871. Except sections six, seven, and eight. The Supremo Court of Judicature Act, 1875. in part ; namely. Sections nine and thirty-two. Patents, Designs, and Trade Marks Act, 1883. 1141 46 & 47 Vict. c. 67. An Act to amend and consolidate the Law relating to Patents for Inventions, Registration of Designs, and of Trade Marks. \25th August, 1883.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and CommonB, in this present Parliament assembled, and by the authority of the same, as follows : PART I. Pbeltminaby. 1. This Act may be cited as the Patents, Designs, and Trade Marks Act, Short title. 1883. a. This Act is divided into parts, as follows : — Division o£ Act Part I.— Pbeliminaey. ^^ P"^- Part II. — Patents. Part III. — Designs. Part IV. — Tbadb Masks. Part V. — Genbeal. 8. This Act, except where it is otherwise expressed, shall commence from Commencement and immediately after the thirty-first day of December one thousand eight °^ -A-"'' hundred and eighty-three. PART II. Patents. Application for and Grant of Patent. 4.— (1.) Any person, whether a British subject or not, may make an appli- Persona entitled cation for a patent. to apply for (2.) Two or more persons may make a joint application for a patent, and a P***"!*- patent may be granted to them jointly. 6. — (1.) An application for a patent must be made in the form set forth in Application and the Pirst Schedule to this Act, or in such other form as may be from time to specification, time prescribed ; and must be left at, or sent by post to, the patent office in the prescribed manner. (2.) An application must contain a declaration (a) to the effect that the applicant is in possession of au invention, whereof he, or in the case of a joint application, one or more of the applicants, claims or claimi to be the true and first inventor or inventors, and for which he or they desires or desire to obtain a patent ; and must be accompanied by either a provisional or com- plete specification. (3.) A provisional specification must describe the nature of the invention, and be accompanied by drawings, if required. (4.) A complete specification, whether left on application or subsequently, must particularly describe and ascertain the nature of the invention, and in what manner it is to be performed, and must be accompanied by drawings, if required [b). (5.) A specification, whether provisional or complete, must commence with the title, and in the case of a complete specification must end with a distinct statement of the invention claimed. 6. The comptroller shall refer every application to an examiner, who shall Befraence of ascertain and report to the comptroller whether the nature of the inven- application to tion has been fairly described, and the application, specification, and draw- ^^™°™™- («) See 48 & 49 Vict. c. 63, s. 2. Vb) See 49 & 50 Vict. c. 37, s. 2. 4f2 .1142 46 & 47 Vict. cap. 57. Power for comp- troller to refuse application or require amend- ment. Time for leaving complete specifi- cation. Comparison of provisional and complete specifi- cation. Advertisement on acceptance of complete specification. Opposition to grant of patent. ings (if any) have b9en prepared in the prescribed manner, and the title suificiently indicates the subject-matter of the invention. 7. — (1.) If the examiner reports that the nature of the invention is not fairly described, or that the application, specification or drawings has not or have not been prepared in the prescribed manner, or that the title does not sufficiently indicate the subject-matter of the invention, the comptroller may require that the application, spedficition or drawings be amended before he proceeds with the application. (2.) Where the comptroller requires an amendment, the applicant may appeal from his decision to the law officer. (3.) The law officer shall, if required, hear the applicant and the comp- troller, and may make an order determining whether and subject to what conditions, if any, the application shall be accepted. (4.) The comptroller shall, when an application has been accepted, give notice thereof to the applicant. (5.) If after an application has been made, but before a patent has been sealed, an application is made, accompanied by a specification bearing the same or a similar title, it shall be the duty of the examiuer to report to the comptroller whether the specification appears to him to comprise the same invention ; and, if he reports in the affirmative, the comptroller shall give notice to the applicants that he has so reported. (6.) Where the examiner reports in the affirmative, the comptroller may determine, subject to an appeal to the law officer, whether the invention comprised in both applications is the same, and if so he may refuse to seal a patent on the application of the second applicant. 8. — (1.) If the applicant does not leave a complete specification with his application, he may leave it at any subsequent time within nine months (a) from the date of application. (2.) Unless a complete specification is left within that time the application shall be deemed to be abandoned. 9. — (1.) Where a complete specification is left after a provisional specifica- tion, the comptroller shall refer both specifications to an examiner for the purpose of ascertaining whether the complete specification has been prepared in the prescribed manner, and whether the invention particularly described in the complete specification is substantially the same as that which is described in the provisional specification. (2.) If the examiuer reports that the conditions hereinbefore contained have not been complied with, the comptroller may refuse to accept the com- plete specification unless and until the same shall have been amended to his satisfaction ; but any such refusal shall be subject to appeal to the law officer. (3.) The law officer shall, if required, hear the applicant and the comp- troller, and may make an order determining whether and subject to what conditions, if any, the complete specification shall be accepted. . (4.) UnJess a complete specification is accepted within twelve months [a) from the date of application, then (save in the case of an appeal having been lodged against the refusal to accept) the appUoation shall, at the expiration of those twelve months, become void. (5.) Eeports of examiners shall not in any case be published or be open to public inspection, and shall not be liable to production or inspection in any legal proceeding, other than an appeal to the law officer under this Act, unless the court or officer having power to order discovery in such legal proceeding shall certify that such production or inspection is desirable in the interests of justice, and ought to be allowed. 10. On the acceptance of the complete specification the comptroller shall advertise the acceptance ; and the application and specification or specifica- tions with the drawings (if any) shall be open to public inspection. H. — (1.) Any person may at any time within two months from the date of the advertisement of the acceptance of a complete specification give notice at the patent office of opposition to the grant of the patent on the ground of the applicant having obtained the invention from him, or from a person of whom he is the legal representative, or on the ground that the invention has been patented in this country on an application of prior date, or on the (a) See 48 & 49 Vict. c. 63, s. 3. Patents, Designs, and Thade Marks Act, 1883. 1143 ^ound of an examiner having reported to the comptroller that the specifica- tion appears to him to comprise the same invention as is comprised in a specification beai'ing the same or a similar title and accompanying a previous application, but on no other ground. (2.) Where such notice is given the comptroller shaU give notice of the opposition to the applicant, and shall, on the expiration of those two months, after hearing the applicant and the person so giving notice, if desirous of being heard, decide on the case, but subject to appeal to the law officer. (3.) The law officer shaU, if required, hear the applicant and any person so giving notice and being, in the opinion of the law officer, entitled to be heard in opposition to the grant, and shall determine whethei the grant ought or ought not to be made. (4.) The law officer may, if he thinks fit, obtain the assistance of an expert, who shall be paid such remuneration as the law officer, with the consent of the Treasury, shall appoint. 12.— (1.) If there is no opposition, or, in case of opposition, if the deter- Sealing of mination is in favour of the grant of a patent, the comptroller shall cause a patent, patent to be sealed with the seal of the patent office. (2.) A patent so sealed shall have the same effect as if it were sealed with the Great Seal of the United Kingdom. (3.) A patent shall be sealed as soon as may be, and not after the expira- tion of fifteen months («) from the date of application, except in the cases hereinafter mentioned, that is to say — (a) Where the sealing is delayed by an appeal to the law officer, or by opposition to the grant of the patent, the patent may be sealed at such time as the law officer may direct. (b) If the person making the application dies before the expiration of the fifteen months aforesaid, the patent may be granted to his legal representative and sealed at any time within twelve months after the death of the applicant. 13. Every patent shall be dated and sealed as of the day of the application : Date of patent. Provided that no proceedings shall be taken in respect of an infringement committed before the publication of the complete specification : Provided also, that in case of more than one application for a patent for the same invention, the sealing of a patent on one of those applications shall not prevent the sealing of a patent on an earlier application. Provisional Protection. 14. Where an application for a patent in respect of an invention has been Provisional accepted, the invention may during the period between the date of the protection, application and the date of sealing such patent be used and published ■without prejudice to the patent to be granted for the same : and sudi protec- tion from the consequences of use and publication is in this Act referred to as provisional protection. Frotection by Complete Specijication. 15. After the acceptance of a complete specification and until the date of Effect of acccpt- sealing a patent in respect thereof, or the expiration of the time for sealing, anceof ramplete the applicant shall have the like privileges and rights as if a patent for the ^^ "* ™' invention had been sealed on the date of the acceptance of the complete specification : Provided that an applicant shall not be entitled to institute any proceeding for infringement unless and until a patent for the invention has been granted to him. Fatent. 16. Every patent when sealed shall have effect throughout the United Extent of Kingdom and the Isle of Man. ?"■*«"'• 17, — (1.) The term limited in every patent for the duration thereof shall Tenn of patent, he fourteen years from its date. (2.) But every patent shall, notwithstanding anything therein or in this Act, cease if the patentee fails to make the prescribed payments within the prescribed times. {a) 48 & 49 Vict. c. 63, =. 3. 1144 46 & 47 Vict. cap. 57. (3.) If, neyertlieless, in any case, by accident, mistake or inadvertence, a patentee fails to make any preseribed payment within the prescribed time, he may apply to the comptroller for aa enlargement of the time for making that payment. (4.) Thereupon the comptroller shall, if satisfied that the faUnre has arisen from any of the above-mentioned causes, on receipt of the prescribed fee for enlargement, not exceeding ten pounds, enlarge the time accordingly, subject to the following conditions : — (a) The time for making any payment shall not in any case be enlarged for more than three months. (b) If any proceeding shall be taken in respect of an infringement of the patent committed after a failure to make any payment within the prescribed time, and before the enlargement thereof, the court before which the proceeding is proposed to be taken may, if it shall think fit, refuse to award or give any damages in respect of such infringement. Amendment of Specification. Amendment of 18. — (1.) An applicant or a patentee may, from time to time, by request specification. j^ -vyriting left at the patent office, seek leave to amend his specification, including drawings forming part thereof, by way of disclaimer, correction, or explanation, stating the nature of such amendment and his reasons for the same. (2.) The request and the nature of such proposed amendment shall be advertised in the prescribed manner, and at any time within one month from Its first advertisement any person may give notice at the patent office of opposition to the amendment. (3.) Where such notice is given the comptroller shall give notice of the opposition to the person making the request, and shall hear and decide the case subject to an appeal to the law officer. (4.) The law officer shall, if required, hear the person making the request and the person so giving notice, and being in the opinion of the law officer entitled to be heard in opposition to the request, and shall determine whether and subject to what conditions, if any, the amendment ought to be allowed. (5.) Where no notice of opposition is given, or the person so giving notice does not appear, the comptroller shall determine whether and subject to what conditions, if any, the amendment ought to be allowed. (6.) When leave to amend is refused by the comptroller, the person making the request may appeal from his decision to the law officer. (7.) The law officer shall, if required, hear the person making the request and the comptroller, and may make an order determining whether, and subject to what conditions, if any, the amendment ought to be allowed. (8.) No amendment shall be allowed that would make the specification, as amended, claim an invention substantially larger than or substantially different from the invention claimed by the specification as it stood before amendment. (9.) Leave to amend shall be conclusive as to the right of the party to make the amendment allowed, except in case of fraud ; and the amendment shall in all courts and for all purposes be deemed to form part of the specification. (10.) The foregoing provisions of this section do not apply when and so long as any action for infringement or other legal proceeding in relation to a patent is pending. Power to dis- 19. — (1.) In an action for infringement of a patent, and in a proceeding toraaiaradmm" ^°^ revocation of a patent, the court or a judge may at any time order that action &o. ^^^ patentee shall, subject to such terms as to costs and otherwise as the court or a judge may impose, be at liberty to a^ly at the patent office for leave to amend his specification by way of disclaimer, and may direct that in the meantime the trial or hearing of the action shall be postponed. Eestriotion on 20. Where an amendment by way of disclaimer, correction, or explana- daml^." *^°°' ^^^ ^fS!^ allowed under this Act, no damages shall be given in any action in respect of the use of the invention before the disclaimer, correction, or explanation, unless the patentee establishes to the satisfaction of the court that his original claim was framed in good faith and with reasonable skill and knowledge. Patents, DESIG^•s, and Trade Marks Act, 1883. 1145 81. Eveiy amendment of a specification shaU be advertised in the pre- Advertisement scribed manner. of amendment. CompuUory Licences. 22. If on the petition of any person interested it is proved to the Board of Power for Board Trade that by reason of the default of a patentee to grant licences on reason- *° o"ior grant able terms- *^ ^ of licences. (a.) The patent is not being worked in the United Kingdom ; or (b.) The reasonable requirements of the public with respect to the inven- tion cannot be supplied ; or (o.) Any person is prevented from working or using to the best advantage an invention of which he is possessed, the Board may order the patentee to grant Ucenoes on such terms as to the amount of royalties, security for payment, or otherwise, as the Board, having regard to the nature of the invention and the circumstances of the case, may deem just, and any such order may be enforced by mandamus. Segister of Fatents. 23. — (1 .) There shall be kept at the patent office a book called the Kegister Begister of of Patents, wherein shall be entered the names and addresses of grantees of patents, patents, notifications of assignments and of transmissions of patents, of licences under patents, and of amendments, extensions, and revocations of patents, and such other matters affecting the validity or proprietorship of patents as may from time to time be prescribed. (2.) The register of patents shall bo primd facie evidence of any matters by this Act directed or authorized to be inserted therein. (3.) Copies of deeds, Ucenoes, and any other documents affecting the pro- prietorship in any letters patent or in any licence thereunder, must be supplied to the comptroller in the prescribed manner for filing in the patent office. Feea. 24. — (1.) There shall be paid in respect of the several instruments described Feesinsoliedule. in the Second Schedule to this Act, the fees in that schedule mentioned, and there shall likewise be paid, in respect of other matters under this part of the Act, such fees as may be from time to time, with the sanction of the Treasury, prescribed by the Board of Trade ; and such fees shall be levied and paid to the account of her Majesty's Exchequer in such manner as the Treasury may from time to time direct. (2.) The Board of Trade may from time to time, if they think fit, vrith the consent of the Treasury, reduce any of those fees. Extension of Term of Fatent. 26.— (1.) A patentee may. after advertising in manner directed by any Extension of rules made under this section his intention to do so, present a petition to her ^™ tition to Majesty in Council, praying that his patent may be extended for a further Queen in term ; but such petition must be presented at least six months before the Council, time limited for the expiration of the patent. (2.) Any person may enter a caveat, addressed to the Registrar of the Council at the CouncU Office, against the extension. (3.) If her Majesty shall be pleased to refer any such petition to the Judicial Committee of the Privy Council, the said committee shall proceed to consider the same, and the petitioner and any person who has entered a caveat shall be entitled to be heard by himself or by counsel on the petition. _ (4.) The Judicial Committee shall, in considering their decision, have regard to the nature and merits of the invention in relation to the public, to the profits made by the patentee as such, and to all the circumstances of the (5 ) If the Judicial Committee report that the patentee has been inade- quately remunerated by his patent, it shall be lawful for Her Majesty in Council to extend the term of the patent for a further term not exceeding seven, or in exceptional cases fourteen, years ; or to order the grant of a new patent for the term therein mentioned, and containing any restrictions, conditions, and provisions that the Judicial Committee may think fit. (6 ) It shall be lawful for Her Majesty in Council to make, from time to 1146 46 & 47 Vict. cap. 67. the Revocation of patent. Patent to bind Crown. Hearing -with \i time, rules of procedure and practice for regulating proceedings on suchpeti. tions, and subject thereto such proceedings shaU he regulated according tothi existing procedure and practice in patent matters of the Judicial Committee. (7.) The costs of all parties of and incident to such proceedings shall he in the discretion of the Judicial Committee ; and the orders of the Committee respecting costs shaE he enforceable as if they were orders of a division of the High Court of Justice. Jtevocaiion. 26. (1.) The proceeding by scire facias to repeal a patent is hereby abolished. . (2.) Eevocation of a patent may be obtamed on petition to the court. (3.) Every ground on which a patent might, at the commencement of this Act, be repealed by scire facias shall be available by way of defence to an action of infringement and shall also be a ground of revocation. '4.) A petition for revocation of a patent may be presented by — a) The Attorney-General in England or Ireland, or the Lord Advocate in Scotland. (b) Any person authorised by the Attorney-General in England or Ireland, or the Lord Advocate in Scotland. (c) Any person alleging that the patent was obtained in fraud of his rights, or of Sie rights of any person under or through whom he claims : (d) Any person alleging that he, or any person under or through whom he claims was the true inventor of any invention included in the claim of the patentee : (e) Any person alleging that he, or any person under or through whom he claims an interest in any trade, business, or manufacture, had pubUoly manufactured, used, or sold, within this realm, before the date of the patent, anything claimed by the patentee as his invention. (5.) The plaintiff must deliver with his petition particulars of the objections on which he means to rely, and no evidence shall, except by leave of the court or a judge, be admitted in proof of any objectioi^ of which particulars are not so delivered. (6.) Particulars delivered may be from time to time amended by leave of the court or a judge. (7.) The defendant shall be entitled to begin, and give evidence in support of the patent, and if the plaintiff gives evidence impeaching the validity of the patent the defendant shall be entitled to reply. (8.) Where a patent has been revoked on the ground of fraud, the comp- troller may, on the application of the true inventor made in accordance with the provisions of this Actj grant to him a patent in lieu of and bearing the same date as the date of revocation of the patent so revoked, but the patent so granted shall cease on the expiration of the term for which the revoked patent was granted. Grown. 27. — (1.) A patent shaU have to all intents the like effect as against Her Majesty the Queen, her heirs and successors, a,s it has against a subject. (2.) But the officers or authorities admiuisfering any department of the service of the Crown may, by themselves, their agents, contractors, or others, at any time after the application, use the invention for the services of the Crown on terms to be before or after the use thereof agreed on, with the approval of the Treasury^ between those officers or authorities and the patentee, or, in default of such agreement, on such terms as may be settled by the Treasury after hearing all parties interested. Zegal Proceedings. 28.T-(1.) In an action or proceeding for infringement or revocation of a patent, the court may, if it thinks fit, and shall, on the request of either of the parties to the proceeding, call in the aid of an assessor specially qualified, and try and hear uie case wholly or partially with his assistance ; the action shall be tried without a jury, unless the court shall otherwise direct. (2.) The Court of Appeal or the Judicial Committee of the Privy Council may, if they see fit, in any proceeding before them respectively, call in the aid of an assessor as aforesaid. Patents, Designs, and Trade Marks Act, 1883. 1147 (3.) The remuneration, if any, to be paid to an assessor under this section shall be determined by the court or tiie Court of Appeal or Judicial Com- mittee, as the case may be, and be paid in the same manner as the other ex- penses of the execution of this Act. 29. — (1.) In an action for infringement of a patent the plaintiff must Deliveiyof deliver ■with his statement of claim, or by order of the court or the judge, at particulars, any subsequent time, particulars of the breaches complained of. (2.) The defendant must deliver with his statement of defence, or, by order of the court or a judge, at any subsequent time, particulars of any objections on which he relies in support thereof. (3.) If the defendant disputes the validity of the patent, the particulars delivered by him must state on what grounds he disputes it, and if one of those grounds is want of novelty, must state the time and place of the previous publication or user alleged by him. (i.) At the hearing no evidence shall, except by leave of the court or a judge, be admitted in proof of any alleged infringement or objection of which particulars are not so delivered. (6.) Particulars delivered may be from time to time amended, by leave of the court or a judge. (6.) On taxation of costs regard shall be had to the particulars deUvered by the plaintiff and by the defendant ; and they respectively shall not be allowed any costs in respect of any particular delivered by them unless the same is certified by the court or a judge to have been proven or to have been reasonable and proper, without regard to the general costs of the case. 80. In an action for infringement of a patent, the court or a judge may, Order for in- on the application of either party, make such order for an injunction, inspec- ff^'if"' *°'' tion, or account, and impose such terms and give such directions respecting the same and the proceedings thereon as the court or a judge may see fit. 81. In an action for infringement of a patent, the court or a judge may Certificate of certify that the validity of the patent came in question ; and if the court or ™^^*y ques- a judge so certifies, then in any subsequent action for infringement, the ^^^^ °°^ plaintiff in that action on obtaining a final order or judgment in his favour, shall have his full costs, charges and expenses as between solicitor and client, unless the court or judge trying the action certifies that he ought not to have the same. 82. 'Where any person claiming to be the patentee of an invention, by Eemedy in ca«e circulars, advertisements, or otherwise threatens any other person with any j^r^J^f^f™! legal proceedings or liability in respect of any alleged manufacture, use, sale, proceedings, or purchase of the invention, any person or persons aggrieved thereby, may bring an action against him, and may obtain an injunction against the con- tinuance of such threats, and may recover such damage (if any) as may have been sustained thereby, if the alleged manufacture, use, sale, or purchase to which the threats related was not in fact an infringement of any legal rights of the person making such threats : Provided that this section shall not apply if the person making such threats with due diligence commences and prosecutes an action for infringement of his patent. Miscellaneotie. 33. Every patent maybe in the form in the First Schedule to this Act, Patent for one and shall be granted for one invention only, but may contain more than one invention only, claim ; but it shall not be competent for any person in an action or other proceeding to take any objection to a patent on the ground that it comprises more than one invention. 34.— (1.) If a person possessed of an invention dies without making appli- Patent on appli- cation for a patent for the invention, appUcation maybe made by, and a ^^21™^^ patent for the inventiou granted to, his legal representative. deceased in- (2.) Every such application must be made within six months of the decease venter, of such person, and must contain a declaration by the legal representative that he believes such person to be the true and first inventor of the invention. 35. A patent granted to the true and first inventor shall not be invalidated Patent to flrat by an application in fraud of him, or by provisional protection obtained "™g^t^^ thereon, or by any use or publication of the invention subsequent to that application in fraudulent application during the period of provisional protection. fraud of him. 36. A patentee may assign his patent for any place in or part of the Assignment for United Kingdom, or Isle of Man, as effectually as if the patent were origi- PJjJ^"^ naUy granted to extend to that place or part only. P ^' 1148 46 & 47 Vict. cap. 57. Loss or desfcruc- tion of patent. Proceedings and costs before law officer. Exhibition at industrial or international exhibition not to prejudice patent rights. Publication of illustrated journal, indexes, &c. Patent l^luseum. Power to require models on pay- ment. inBntish ■waters. Assignment to Secretary for War of certain inventions. 37. If a patent is lost or destroyed, or its non-produotion is accounted for to tie satisfaction of the comptroller, the comptroller may at any time cause a duplicate thereof to be sealed. 38. The law officers may examine -witnesses on oath and administer oaths for that purpose under this part of this Act, and may from time to time make, alter, and rescind rules regulating references and appeals to the law officers and the practice and procedure before them under this part of this Act ; and in any proceeding before either of the law officers under this part of this Act, the law officer may order costs to be paid by either party, and any such order may be made a rule of the court. 89. The exhibition of an invention at an industrial or international exhi- bition, certified as such by the Board of Trade, or the publication of any description of the invention during the period of the holding of the exhibi- tion, or the use of the invention for the purpose of the exhibition in the place where the exhibition is held, or the use of the invention during the period of the holding of the exhibition by any person elsewhere, without the privity or consent of the inventor, shall not prejudice the right of the inventor or his legal personal representative to apply for and obtain provisional pro- tection and a patent in respect of the invention or the vaUdity of any patent granted on the application, provided that both the following conditions are complied with, namely, — (a) The exhibitor must, before exhibiting the invention, give the comp- troller the prescribed notice of his intention to do so ; and (b) The application for a patent must be made before or within six mouths from the date of the opening of the exhibition (a). 40. — (1.) The comptroller shall cause to be issued periodically an illus- trated journal of patented inventions, as well as reports of patent cases decided by courts of law, and any other information that the comptroller may deem generally useful or important. (2.) Provision shall be made by the comptroller for keeping on sale copies of such journal, and also of all complete specifications of patents for the time being in force, with their accompanying drawings, if any. (3.) The comptroller shall continue, in such form as he may deem ex- pedient, the indexes and abridgments of specifications hitherto published, and shall from time to time prepare and publish such other indexes, abridg- ments of specifications, catalogues, and other works relating to inventions, as he may see fit. 41. The control and management of the existing Patent Museum, and its contents shall from and after the commencement of this Act, be transferred to and vested in the Department of Science and Art, subject to such direc- tions as Her Majesty in Council may see fit to give. 42. The Department of Science and Art may at any time require a patentee to furnish them with a model of his invention on payment to the patentee of the cost of the manufacture of the model ; the amount to be settled, in case of dispute, by the Board of Trade. 43, — (1.) A patent shall not prevent the use of an invention for the pur- poses of the navigation of a foreign vessel within the jurisdiction of any of Her Majesty's Courts in the United Kingdom, or Isle of Man, or the use of an invention in a foreign vessel within that jurisdiction, provided it is not used therein for or in connection with the manufacture or preparation of anything intended to be sold in or exported from the United !Kingdom or Isle of Man. (2.) But this, section shall not extend to vessels of any foreign state of which the laws authorise subjects of such foreign state, having patents or like privileges for the exclusive use or exercise of inventions within its terri- tories, to prevent or interfere with the use of such inventions in British vessels while in the ports of such foreign state, or in the waters within the jurisdiction of its courts, where such inventions are not so used for the manufacture or preparation of anything intended to be sold in or exported from the territories of such foreign state. 44, — (1.) The inventor of any improvement in instruments or munitions of war, his executors, administrators, or assigns (who are in this section com- prised in the expression the inventor) may (either for or without valuable (a) See 49 & 60 Vict. o. 37, s. 3. Patents, Designs, and Trade Mahks A(rr, 1883, 1149 consideration) assign to Her Majesty's Principal Secretary of State for the War Department (hereinafter referred to as the Secretary of State), on behalf of Her Majesty, all the benefit of the invention and of any patent obtained or to be obtained for the same ; and the Secretary of State may be a party to the assignment. (2.) lie assignment shall effectually vest the benefit of the invention and patent in the Secretary of State for the time being on behalf of Her Majesty, and all covenants and agreements therein contained for keeping the invention secret and otherwise shall be valid and effectual (notwithstanding any want of valuable consideration), and may be enforced accordingly by the Secretary of State for the time being. (3.) Where any such assignment has been made to the Secretary of State, he may at any time before the application for a patent for the invention, or before publication of the specification or specifications, certify to the oomp- ti'oller his opinion that, in the interest of the public service, the particulars of the invention and of the manner in -which it is to be performed should be kept secret. (4.) If the Secretary of State so certifies, the application and specification or specifications with the drawings (if any), and any amendment of the specification or specifications, and any copies of such documents and draw- ings, shall, instead of being left in the ordinary manner at the patent office, be delivered to the comptroller in a packet sealed by authority of the Secre- tary of State. (5.) Such packet shall until the expiration of the term or extended term during which a patent for the invention may be in force, be kept sealed by the comptroller, and diall not be opened save under the authority of an order of the Secretary of State, or of the law officers. (6.) Such sealed packet shall be delivered at any time during the con- tinuance of the patent to any person authorised by writing under the hand of the Secretary of State to receive the same, and shall if returned to the comptroller be again kept sealed by him. (7.) On the expiration of the term or extended term of the patent, such sealed packet shall be delivered to any person authorised by writing under the hand of lie Secretary of State to receive it. (8.) Where the Secretary of State certifies as aforesaid, after an applica- tion for a patent has been left at the patent office, but before the publication of the specification or specifications, the application specification or specifi- cations, with the drawings (if any), shall be forthwith placed in a packet sealed by authority of the comptroller, and such packet shall be subject to the foregoing provisions respecting a packet sealed by authority of the Secretary of State. . , „ ,. j. j.- i (9.) No proceeding by petition or otherwise shall he for revocation ot a patent granted for an invention in relation to which the Secretary of State has certified as aforesaid. ^ ■> ■ t. i.-.,- (10.) No copy of any specification or other document or drawing, by this section required to be placed in a sealed packet, shaU in any manner what- ever be published or open to the inspection of the public, but save as in this section otherwise directed, the provisions of this part of this Act shaU apply in respect of any such invention and patent as aforesaid. , , . , , (11 ) The Secretary of State may, at any time by writing under his hand, waive the benefit of this section with respect to any particular invention, and the specifications, documents and drawings shall be thenceforth kept and dealt with in the ordinary way. . ^ . • _i (12 ) Tho communication of any invention for any improvement m instru- menfe^ or munitions of war to the Secretary of State, or to any person or persons authorised by him to investigate the same or the merits thereof, shaU not, nor shall anything done for the purposes of the investigation be deemed use or pubHcation of such invention so as to prejudice the grant or validity of any patent for the same. Existing Patents. 45 —rn The provisions of this Act relating to applications for patents and ProviBions prooeedLgs thereon shall have effect in respect only of applications made re^ectag^exxst- after the commencement of this Act. (2.) Every patent granted bafore the commencement of this Act, or on an 1150 46 & 47 Vict, cap; 57. Definitions of patent, patentee, and invention. application then pending, shall remain unafBeoted by the provisions of this Act relating to patents binding the Crown, and to compulsory Uoenses. (3.) In all other respects (including the amount and time of payment of fees) this Act shall extend to all patents granted before the commencement of this Act, or on applications then pending, in substitution for such enact- ments as would have applied thereto if this Act had not been passed. (4.) AU instruments relating to patents granted before the commencement of this Act required to be left or filed in the Great Seal Patent Office shall be deemed to be so left or filed if left or filed before or after the commencement of this Act in the patent office. Dejinitions. 46. In and for the purposes of this Act — " Patent" means letters patent for an invention : " Patentee" means the person for the time being entitled to the benefit of a patent : " Invention" means any manner of new manufacture the subject of letters patent and grant of privilege within section six of the Statute of Monopolies (that is, the Act of the twenty-first year of the reign of King James the First, chapter three, intituled "An Act concerning Monopolies and Dispen- sations with Penal Laws and the Forfeiture thereof"), and includes an alleged invention. In Scotland " injunction" means " interdict." Application for registration of Drawings, &c., to be f umishea on application. Ceatiflcate of registrration. PART III. DssmNS. Megistration of Designs. , 47. — (1.) The comptroller may, on application by or on behalf of anyperson claiming to be the proprietor of any new or original design not previously published in the United Kingdom, register the design under this part of this Act. (2.) The application must be made in the form set forth in the first schedule to this Act, or in such other form as may be from time to time prescribed, and must be left at, or sent by post to, the patent office in the prescribed manner. (3.) The application must contain a statement of the nature of the design, and the class or classes of goods in which the applicant desires that the design be registered. (4.) The same design may be registered in more than one dass. (5.) In case of doubt as to the class in which a design ought to be regis- tered, the comptroller may decide the question. (6.) The comptroller may, if he thinks fit, refuse to register any design presented to him for registration, but any person aggrieved by any such refusal may appeal therefrom to the Board of Trade. (7.) The Board of Trade shall, if required, hear the applicant and the comptroller, and may malse an order determining whether, and subject to what conditions, if any, registration is to be permitted. 48. — (1.) On application for registration of a design the applicant shall furnish to the comptroller the prescribed number of copies of drawings, photographs, or tracings of the design sufficient, in the opinion of the comp- troller, for enabling Mm to identify the design ; or tiie applicant may, instead of such copies, furnish exact representations or specimens of the design. (2.) The comptroller may, if he tl\inksfit, refuse any drawing, photograph, tracing, representation, or specimen which is npt, in his opinion, suitable for the official records. 49. — (1.) The comptroller shall grant a certificate of registration to the proprietor of the design when registered. (2.) The comptroller may, in case of loss of the original certificate, or in any oi^er case in which he deems it expedient, grant a copy or copies of the certificate. Patents, Designs, and Trade Marks Act, 1883. 1151 Copyright in registered Designs. 60.— (1.) When a design is registered, the registered proprietor of the Copyright on design shall, subject to the provisions of this Act, have copyright in the regiBtration. design during five years from the date of registration. (2.) Before delivery on sale of any articles to which a registered design has been applied, the proprietor must (if exact representations or specimens were not furnished on the application for registration), furnish to the comp- troller the prescribed number of exact representations or specimens of the design ; and if he fails to do so, the comptroller may erase his name from the register, and thereupon his copyright in the design shall cease. 61. Before delivery on sale of any articles to which a registered design Marking regis- has been applied, the proprietor of the design shall cause each such article to ^^"^ designs, be marked vrith the prescribed mark, or with the prescribed word or words or figures, denoting that the design is registered ; and, if he fails to do so, the copyright in the design shall cease, unless the proprietor shows that he took all proper steps to ensure the marking of the article. 62. — (1.) During the existence of copyright in a design, the design shall Inspection of not be open to inspection except by the proprietor, or a person authorised in 5^^^^ writing by the proprietor, or a person authorised by the comptroller or by the court, and furnishing such information as may enable the comptroller to identify the design, nor except in the presence of the comptroller, or of an officer acting under him, nor except on payment of the prescribed fee ; and the person making the inspection shall not be entitled to take any copy of the design, or of any part thereof. (2.) When the copyright in a design has ceased, the design shall be open to inspection, and copies thereof may be taken by any person on payment of the prescribed fee. 63, On the request of any person producing a particular design, together Infonnation as with its mark of registration, or producing only its mark of registration, or ^«^^^°^ °' famishing such information as may enable the comptroller to identify the P*^* design, and on payment of the prescribed fee, it shall be the duty of the comptroller to inform such person whether the registration still exists in respect of such design, and if so, in respect of what class or classes of goods, and stating also the date of registration, and the name and address of the registered proprietor. 84. If a registered design is used in manufacture in any foreign country Cesser of copy- and is not used in this country within six months of its registration in this "ght in certain country, the copyright in the design shall cease. Register of Designs. 55. — ( 1 .) There shall be kept at the patent office a book called the Register Ecgister of of Designs, wherein shall be entered the names and addresses of proprietors designs. of registered designs, notifications of assignments and of transmissions uf registered designs, and such other matters as may from time to time be prescribed. (2.) The register of designs shall be prim^ facie evidence of any matters by this Act &ected or authorised to be entered therein. 56. There shall be paid in respect of applications and registration and Fees on registrar other matters under this part of this Act such fees as may be from time to t'o^i Re- time, with the sanction of the Treasury, prescribed by the Board of Trade ; and such fees shall be levied and paid to the Account of Her Majesty's Exchequer in such manner as the Treasury shall from time to time direct. Industrial and International Exhibitions. 67. The exhibition at an industrial or international exhibition certified as ?^^°,° **■ ^ such by the Board of Trade, or the exhibition elsewhere during the period JStSSoS of the holding of the exhibition, without the privity or consent of the exhibition not proprietor, of a design, or of any article to which a design is applied, or the to prevent or publication, during the holding of any such exhibition, of a description of a ^^^^^ design, shall not prevent the design from being registered, or invalidate the 1162 46 & 47 Vict. cap. 57. registration thereof, pro-vided that both the following conditions are complied with ; namely, — (a.) The exhibitor must, before exhibiting the design or article, or publishing a description of the design, give the comptroller the prescribed notice of his intention to do so ; and (b.) The application for registration must be made before or within six months from the date of the opening of the exhibition (a). Penalty on piracy of re^s- tered design. Action for damages. 68. During the existence of copyright in any design — (a.) It shall not be lawful for any person without the license or written consent of the registered proprietor to apply such design or any fraudulent or obvious imitation thereof, in the class or classes of goods in which such design is registered, for purposes of sale to any article of manufacture or to any substance artffioial or natural or partly artificial and partly natural ; and (b.) It shall not be lawful for any person to publish or expose for sale any article of manufacture or any substance to which such design or any fraudulent or obvious imitation thereof shall have been so applied, knowing that the same has been so applied without the consent of the registered proprietor. Any person who acts in contravention of this section shall be liable for every offence to forfeit a sum not exceeding fifty poimds to the registered proprietor of the design, who may recover such sum as a simple contract debt by action in any court of competent jurisdiction. 59. Notwithstanding the remedy given by this Act for the recovery of such penalty as aforesaid, the registered proprietor of any design may (U he elects to do so) bring an action for the recovery of any damages arising from the application of any such design, or of any fraudulent or obvious imitation thereof for the purpose of sale, to any article of manufacture or substance, or from the publication sale or exposure for sale by any person of any article or substance to which such design or any fraudvdent or obvious imitation thereof shall have been so applied, such person knowing that the proprietor had not given his consent to such application. Definition of " design," " copyiight." Definition of proprietor. Definitions. 60. In and for the purposes of this Act — " Design " means any design "applicable to any article of manufacture, or to any substance artificial or natural, or partly artificial and partly natural, whether the design is applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applicable, whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical, or chemical, separate or combined, not being a design for a sculpture, or other thing within the protection of the Sculpture Copyright Act of the year 1814 (fifty-fourth George the Third, chapter fifty-six). " Copyright " means the exclusive right to apply a design to any article of manufacture or to any such substance as aforesaid in the class or classes in which the design is registered. 61. The author of any new and original design shall be considered the proprietor thereof, unless he executed lie work on behalf of another person for a good or valuable consideration, in which case such person shall be considered the proprietor, and every person acquiring for a good or valuable consideration a new and originl design, or the right to apply the same to any such article or substance as aforesaid, either exclusively of any other person or otherwise, and also every person on whom the property in such design or such right to the application thereof shall devolve, shall be considered the proprietor of the design in the respect in which the same may have been so accLuired, and to that extent, but not otherwise. 49 & 60 Vict. 0. 37, B. 3. Patents, Designs, and Trade Marks Act, 1883. 1153 PAET rv. Tbadb Masks. Sejiistration of Trade Marks. 62.— (1.) The comptroller may, on application by or on behalf of any Application for person claiming' to be the proprietor of a trade mark, register the trade registration, mark. (2.) The application must be made in the form set forth in the First Schedule to this Act, or in such other form as may be from time to time prescribed, and must be left at, or sent by post to, the Patent Office in the prescribed manner. (3.) The application must be accompanied by the prescribed number of representations of the trade mark, and must state the particular goods or classes of goods in connexion with which the applicant desires the trade mark to be registered. (4.) The comptroller may, if he thinks fit, refuse to register a trade mark, but anj^ such refusal shaU be subject to appeal to the Board of Trade, who shall, Q required, hear the applicant and the comptroller, and may make an order determining whether, and subject to what conditions, if any, registra- tion is to be permitted. (5.) The Board of Trade may, however, if it appears expedient, refer the appeal to the Court ; and in that event the Court shall have jurisdiction to hear and determine the appeal and may make such order as aforesaid. 63. Where registration of a trade mark has not been or shall not be com- limit of time pleted within twelve months from the date of the application, by reason of for proceeding default on the part of the appKcaut, the application shall be deemed to be jf *'' "PPli'Ja- abandoned. °' 64.— (1.) For the purposes of this Act, a trade mark must consist of or Conditions of contain at least one of the following essential particulars : — registration of (a) A name of an individual or firm printed, impressed, or woven in some *™'*^ mark. particular and distinctive manner ; or (b) A written signature or copy of a written signature of the individual or firm applying for registration thereof as a trade mark ; or (c) A distinctive device, mark, brand, heading, label, ticket, or fancy word or words not in common use. (2.) There may be added to any one or more of these particulars any letters words or figures, or combination of letters words or figures, or of any of them. (3.) Provided that any special and distinctive word or words letter, figure, or combination of letters or figures or of letters and figures used as a trade mark before the thirteenth day of August one thousand eight hundred and seventy-five may be registered as a trade mark under this part of this Act. 66. A trade mark must be registered for particular goods or classes of Connection of goods. tiude mark 66. When a person claiming to be the proprietor of several trade marks ^*'' goods, which, while resembling each other in the material particulars thereof, yet differ Registration of in respect of (a) the statement of the goods for which they are respectively L?^^ °' used or proposed to be used, or (b) statements of numbers, or (c) state- ments of price, or (d) statements of quality, or (e) statements of names of places, seeks to register such trade marks, they may be registered as a series in one registration. A series of trade marks shall be assignable and transmissible only as a whole, but for aU other purposes each of the trade marks composing a series shall be deemed and treated as registered separately. 67. A trade mark may be registered in any colour, and sudi registration Trade maiks shall (subject to the provisions of this Act) confer on the registered owner may be regis- the exclusive right to use the same in that or any other colour. ^Sr™ ^^ 68. Every application for registration of a trade mark under this part of '. this Act shall as soon as may be after its receipt be advertised by the oomp- ttl^^^^. troller. 69. — (1.) Any person may within two months of the first advertisement of *'P?^2«"''° the application, give notice in duplicate at the patent office of opposition to '^^S™™'*'™- registoation of the trade mark, and the comptroller shall send one copy of such notice to the applicant. (2.) Within two months after receipt of such notice or such further time llo4 46 & 47 Vict. cap. 67. AasigBinent and transnussion of trade mark. Coaflictmg claims to regis- tration. Bestrictions on registration. Furtlier restric- tion on regis- tration. Saving for power to pro- vide for entry on register of common marks as additions to trade marks. Begistration equivalent to public use. as the comptroller may allow, the applicant may send to the comptroller a counter statement in duplicate of the grounds on which he relies for his application, and if he does not do so, shall be deemed to have abandoned his application. (3.) If the applicant sends such counter statement, the comptroller shall furnish a copy thereof to the person who gave notice of opposition, and shall require him to give security in such manner and to such amount as the comptroller may require for such costs as may be awarded in respect of such opposition ; and if such security is not given within fourteen days after such requirement was made or such further time as the comptroller may allow, the opposition shall be deemed to be withdrawn. (4.) If the person who gave notice of opposition duly gives such security as aforesaid, the comptroller shall inform the appUoant thereof in writing, and thereupon the case shall be deemed to stand for the determination of the court. 70. A trade mark, when registered, shall be assigned and transmitted only in connexion with the goodwill of the business concerned in the particular goods or classes of goods for which it has been registered, and shall be determinable with that goodvrill. 71. Where each of several persons claims to be registered as proprietor of the same trade mark, the comptroller may refuse to register any of them until their rights have been determined according to law, and the comptroller may himself submit or require the claimants to submit their rights to the court. 73. — (1.) Except where the court has decided that two or more persons are entitled to be registered as proprietors of the same trade mark, the comptroller shall not register in respect of the same goods or description of goodB a trade mark identical with one already on the register with respect to such goods or description of goods. (2.) The comptroller shall not register with respect to the same goods or description of goods a trade mark so nearly resembling a trade mark already on the register with respect to such goods or description of goods as to he calculated to deceive. 73. It shall not be lawful to register as part of or in combination with a trade mark any words the exclusive use of which would by reason of their being calculated to deceive or otherwise, be deemed disentitled to protection in a court of justice, or any scandalous design. 74. — (1.) Nothing in this Act shall be construed to prevent the comptroller entering on the register, in the prescribed manner, and subject to the prescribed conditions, as an addition to any trade mark — (a) In the case of an application for registration of a trade mark used before the thirteenth day of August, one thousand eight hundred and seventy-five — Any distinctive device, mark, brand, heading, label, ticket,- letter, word, or figure, or combination of letters, words, or figures, though the same is common to the trade in the. goods with respect to which the application is made ; (b) In the case of an application for registration of a trade mark not used before the thirteenth day of August one thousand eight hundred and seventy-five — Any distinctive word or combination of words, though the same is common to the trade in the goods Vfith respect to which the application is made ; (2.) The applicant for entry of any such common particular or particulars must, however, disclaim in his appUcation any right to the exclusive use of the same, and a copy of the disclaimer shall be entered on the register. (3.) Any device, mark, brand, heading, label, ticket, letter, word, figure, or combination of letters, words, or figures, which was or were, before the thirteenth day of August one thousand eight hundred and seventy-five, publicly used by more than three persons on the same or a similar description of goods shall, for the purposes of this section, be deemed common to the trade in such goods. Effect of Registration. 76. Registration of a trade mark shall be deemed to be equivalent to public use of the trade mark. Patents, Designs, and Trade Marks Act, 1883. il55 76. The registration of a person as proprietor of a trade mark shall be Eight of first prima facie evidence of his right to the exclusive use of the trade mark, and Proprietor to shall, after the expii-ation of five years from the date of the registration, be Sen^k!° conclusive evidence of his right to the exclusive use of the trade mark, subject to the provisions of this Act. 77. A person shall not be entitled to institute any proceeding to prevent Eestrictions on or to recover damages for the infringement of a trade mark unless, in the f<=tions for case of a trade mark capable of being registered under this Act, it has been ^ ™f ^^f^Je registered in pursuance of this Act, or of an enactment repealed by this Act, to action in ox, in the case of any other trade mark in use before the thirteenth of certain easea. August one thousand eight hundred and seventy-five, registration thereof under this part of this Act, or of an enactment repealed by this Act, has been refused. The comptroller may, on request and on payment of the prescribed fee, grant a certificate that such registration has been refused. Register of Trade Marks. 78. There shall be kept at the patent ofiice a book called the Register of Register of Trade Marks, wherein shall be entered the names and addresses of pro- trade mai'ks. prietors of registered trade marks, notifications of assignments and of trans- missions of trade marks, and such other matters as may be from time to time prescribed. 79, — (1.) At a time not being less than two months nor more than three Removal of months before the expiration of fourteen years from the date of the registra- *^''® P^J tion of a trade mark, the comptroller shall send notice to the registered yearaiu^S™ proprietor that the trade mark wiU be removed from the register unless the fee paid, proprietor pays to the comptroller before the expiration of such fourteen years (naming the date at which the same will expire) the prescribed fee ; and if such fee be not previously paid, he shall at the expiration of one month from the date of the giving of the first notice send a second notice to the same effect. (2.) If such fee be not paid before the expiration of such foxu'teen years the comptroller may after the end of three months from the expiration of such . fourteen years remove the mark from the register, and so from time to time at the expiration of every period of fourteen years. (3.) If before the expiration of the said three months the registered proprietor pp.ys the said fee together with the additional prescribed fee, the comptroller may without removing such trade mark from the register accept the said fee as if it had been paid before the expiration of the said fourteen years. (4.) Where after the said three months a trade mark has been removed from the register for non-payment of the prescribed fee, the comptroller may, if satisfied that it is just so to do, restore such trade mark to the register on payment of the prescribed additional fee. (6.) Where a trade mark has been removed from the register for nonpay- ment of the fee or otherwise, such trade mark shall nevertheless for the purpose of any application for registration during the five years next after the date of such removal, be deemed to be a trade mark which is already registered. Fees. 80. There shall be paid in respect of applications and registration and Tees for regis- other matters under this part of this Act, such fees as may be from time to tration, &o. time, with the sanction of the Treasury, prescribed by the Board of Trade ; and such fees shall be levied and paid to the account of Her Majesty's Exchequer in such maimer as the Treasury may from time to time direct. Sheffield Marks. ■ 81. With respect to the master, wardens, searchers, assistants, and com- Eegistration by monalty of the Company of Cutlers in HaUamshire, in the county of York (in Cutlers' Com- , this Act called the Cutlers' Company) and the marks or devices (in this Act V^ot Sheffield called Sheffield marks) assigned or registered by the master, wardens, searchers, and assistants of that company, the following provisions shall have effect: x ot <= u (1.) The Cutlers' Company shall establish and keep at Sheffield a new register of trade marks (in this Act called the Sheffield register) : VOL. II. — S. 4 G 1156. 46 & 47 Vict. cap. 57. (2.) The Cutlers' Company shall enter in the Sheffield register, in respect of cutlery, edge tools, or raw steel and the goods mentioned in the next sub-section all the trade marks entered before the commence- ment of this Act in respect of cutlery, edge tools, or raw steel, and such goods in the register established under thB Trade Marks Regis- tration Act, 1875, belonging to persons carrying on business in HaUamshire, or within six miles thereof, and shall also enter in such register, in respect of the same goods, all the trade marks which shall have been assigned by the Cutlers' Company and actually used before the commencement of this Act, but which have not been entered in the register established under the Trade Marks Eegistra- tion Act, 1875 : (3.) An application for registration of a trade mark used on cutlery, edge tools, or on raw steel, or on goods made of steel, or of steel and iron combined, whether with or without a cutting edge,_ shall, if made after the commencement of this Act by a person carrying on business in HaUamshire, or within six miles thereof, be made to the Cutlers' Company : (4.) Every application so made to the Cutlers' Company shall be notified to the comptroller in the prescribed manner, and unless the comp- troller within the prescribed time gives notice to the_ Cutlers' Com- pany that he objects to the acceptance of the application, it shall be proceeded with by the Cutlers' Company in the prescribed manner : (5.) If the comptroller gives notice of objection as aforesaid, the applica- tion shall not be proceeded with by the Cutlers' Company, but any person aggrieved may appeal to the court : (6.) Upon the registration of a trade mark in the Sheffield register the Cutlers' Company shall give notice thereof to the comptroller, who shall thereupon enter the mark in the register of trade marks ; and such registration shall bear date as of the day of application to the Cutlers' Company, and have the same effect as if the application had been made to the comptroller on that day : (7.) The provisions of this Act, and of any general rules made under this Act, with respect to application for registration in the register of trade marks, the effect of such registration, and the assignment and transmission of rights in a registered trade mark shall apply in the case of applications and registration in the Sheffield register; and notice of every entry made in the Sheffield register must be given to the comptroller by the Cutlers' Company, save and except fitat the provisions of this sub-section shall not prejudice or affect any life, estate, and interest of a widow of the holder of any Sheffield mark which may be in force in respect of such mark at the time when it shall be placed upon the Sheffield register : (8.) Where the comptroller receives from any person not carrying on busi- ness in HaUamshire or within six miles thereof an appUcation for registration of a trade mark used on cutlery, edge tools, or on raw steel, or on goods made of steel, or of steel and iron combined, whether with or without a cutting edge, he shall in the prescribed manner notify the appUoation and proceedings thereon to the Cutlers' Company : (9.) At the expiration of five years from the commencement of this Act the Cutlers' Company shaU close the Cutlers' register of corporate trade marks, and thereupon all marks entered therein shaU, unless entered in the Sheffield register, be deemed to have been aban- doned : (10.) A person may (notwithstanding anything in any Act relating to the Cutlers' Company) be registered in the Sheffield register as pro- prietor of two or more trade marks : (11.) A body of persons, corporate or not corporate, may (notwithstanding anything in any Act relating to the Cutlers' Company) be regis- tered in the Sheffield register as proprietor of a trade mark or trade marks : (12.) Any. person aggrieved by a decision of the Cutlers' Company in respect of anything done or omitted under this Act may, in the prescribed manner, appeal to the comptroUer, who shall have power Patents, Designs, and Teade Marks Act, 1883. 1157 to confirm reverse or modify the decision, bat the decision of the comptroller shall be subject to a further appeal to the court : (13.) So much of the Cutlers' Company's Acts as appUes to the summary punishment of persons counterfeiting Sheffield corporate marks, that is to say, the fifth section of the Cutlers' Company's Act of 1814, and the provisions in relation to the recovery and application of the penalty imposed by such last- mentioned section contained in the Cutlers' Company's Act of 1791, shall apply to any mark entered in the Sheffield register. PART V. GrENEEAI.. Fatmt Office and Proceedingi thereat. 82.— (1.) The Treasury may provide for the purposes of this Act an office Patent Office, with all requisite buildings and conveniences, which shall be called, and is in this Act referred to as, the Patent Office. (2.) Until a new patent office is provided, the offices of the Commissioners of Patents for inventions and for the registration of designs and trade marks existing at the commencement of this Act shall be the patent office within the meaning of this Act. (3.) The patent office shall be under the immediate control of an officer called the comptroller general of patents, designs, and trade marks, who shall act under the superintendence and direction of the Board of Trade. (4.) Any act or thing directed to be done by or to the comptroller may, in his absence, be done by or to any officer for the time being in that behalf authorized by the Board of Trade. 83. — (1.) The Board of Trade may at any time after the passing of this Officers and Act, and from time to time, subject to the approval of the Treasmy, appoint olerks. the comptroUer-geueral of patents, designs, and trade marks, and so many examiners and other officers and clerks, with such designations and duties as the Board of Trade think fit, and may from time to time remove any of those officers and clerks. (2.) The salaries of those officers and clerks shall be appointed by the Board of Trade, with the concurrence of the Treasury, and the same and the other expenses of the execution of this Act shall be paid out of money provided by Parliament. 84. There shall be a seal for the patent office, and impressions thereof Seal of patent shall be judicially noticed and admitted in evidence. °ffl'=^- 88. There shall not be entered in any register kept under this Act, or be Trust not to be receivable by the comptroller, any notice of any trust expressed implied or ^i'?''^"! ■'i constructive. ^^^^ ^' 86. The comptroller may refuse to grant a patent for an invention, or to Eetusal to grant register a design or trade mark, of which the use would, in his opinion, be ^^'^^ a^os^ contrary to law or morality. 87. Where a person becomes entitled by assignment, transmission, or other Entry of as- operation of law to a patent, or to the copyright in a registered design, or to sipiments and a registered trade mark, the comptroller shall on request, and on proof of re^tera!""™ "" title to his satisfaction, cause the name of such person to be entered as proprietor of the patent, copyright in the design, or trade mark, in the register of patents, designs, or trade marks, as the case may be. The person for the time Ijeing entered in the register of patents designs or trade- marks, as proprietor of a patent, copyright in a design or trade mark as the case may be, shall, subject to any rights appearing from such register to be vested in any other person, have power absolutely to assign, grant licences as to, or otherwise deal with, the same and to give effectual receipts for any consideration for such assignment, licence, or dealing. Provided that any equities in respect of such patent, design, or trade mark may be enforced in like manner as in respect of any other personal property. 88. Every register kept under this Act shall at all convenient times be Inspection of open to the inspection of the public, subject to such regulations as may be |^^ extracts 4 G 2 rom regis rs. 1158 46 & 47 Vict. cap. 57. Sealed copies to be received in evidence. Eeotiflcation of registers by court. Power for comp- troller to correct clerical errors. Alteration of registered mark. Falsification of entries in registers. Exercise of discretionary power by comptroller. Power of comp- troller to take directions of law officers. Certiiicate of comptroller to be evidence. Applications and notices by post. prescribed ; and certified copies, sealed •with tte seal of the patent office, of any entry in any snch reg;ister shall be given to any person requiring the same on payment of the prescribed fee. ■ 89. Printed or written copies or extracts, purporting to be certified by the comptroller and sealed with the seal of the patent office, of or from patents specifications disclaimers and other documents in the patent office, and of or from registers and other books kept there, shall be admitted in evidence in all courts in Her Majesty's dominions, and in all proceedings, without further proof or production of the originals. 90. — (1.) The court may on the application of any person aggrieved by the omission without sufficient cause of the name of any person from any register kept under this Act, or by any entry made without sufficient cause in any such register, make such order for making expunging or varying the entry, as the court thinks fit ; or the court may refuse the application ; and in either case may make such oirdei- with respect to the costs of the pro- ceedings as the court thinks fit. , (2.) The court may in any proceeding under this section decide any question that it may .be necessary or expedient to decide for the rectification of a register, and may direct an issue to be tried for the decision of any question of fact, and may award damages to the party aggrieved. (3.) Any order of the court rectifying a register shall direct that due notice of the rectification be given to the comptroller. 91. The comptroller mayj on request in wilting accompanied by the prescribed fee, — (a) Correct any clerical error in or in connection with an application for a patent, or for registration of a design or trade mark ; or (b) Correct any clerical error in the name style or address of the registered proprietor of a patent, design, or trade mark. (c) Cancel the entry or part of the entry of a trade mark on the register : Provided that the applicant accompanies his request by a statutory declaration made by himself, stating bis name, address, and calling; and that he is the person whose name appears on the register as the proprietor of the said trade mark. 92. — (1.) The registered proprietor of any registered trade mark may apply to the court for leave to add to or alter such mark in any particular, not ~ being an essential particular within the meaning of this Act, and the court may refuse or grant leave on such terms as it may think fit. (2.) Notice of any intended application to the court under this section shall be given to the comptroller by the applicant ; and the comptroller shall be entitled to be heard on the application. (3.) If the court grants leave, the comptroller shaJl, on proof thereof and on payment of the prescribed fee, cause the register to be altered in con- formity with the order of leave. 93. If any person makes or causes to be made a false entry in any register kept under this Act, or a writing falsely purporting to be a copy of an entry in any such register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, he shall be guilty of a misdemeanor. 94. "Where any discretionary power is by this Act given to the comptroller, he shall not exercise that power adversely to the applicant for a patent, or for amendment of a specification, or for registration of a trade mark or design, without (if so required within the prescribed time by the appHoant) giving the applicant an opportunity of being heard personally or by his agent. 95. The comptroller may, in any case of doubt or difficulty arising in the administration of any of the provisions of this Act, apply to either of the law officers for directions in the matter. 96. A certificate purporting to be under the hand of the comptroller as to any entry, matter, or thing which he is authorised by this Act, or any general rules made thereunder, to make or do, shall be prim^ facie evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or left undone. 97. — (1.) Any application, notice, or other document authorised or required to be left made or given at the patent office, or to the comptroller, or to any other person under this Act, may be sent by a prepaid letter through the post ; and if so sent shall be deemed to have been left made or given respeo- Patents, Designs, axu Trade Marks Act, 1883. 1159 tively at the time when the letter containing the same would be delivered in the ordinary course of post. (2.) In proving such service or sending, it shall be sufficient to prove that the letter was properly addressed and put into the post. 98. Whenever the last day fixed by this Act, or by any rule for the time being ftovision as to in force, for leaving any document or paying any fee at the patent office shall ^ys forleawng fall on CJhristmas Day, Good Friday, or on a Saturday or Sunday, or any ^S!^ day observed as a holiday at the Bank of England, or any day observed as a day of public fast or thanksgiving, herein referred to as excluded days, it shall be lawful to leave such document or to pay such fee on the day next following such excluded day, or days if two or more of them occur con- secutively. 99. If any person is by reason of infancy lunacy or other inability, inca- pedamtion by pable of makmg any declaration or doing anything required or permitted by ^^™ ' ^^ "'' this Act or by any rules made under the authority of this Act, then the guardian or committee (if any) of such incapable person, or if there be none, any person appointed by any court or judge possessing jurisdiction in respect of the property of incapable persons, upon the petition of any person on behalf of such incapable person, or of any other person interested in the making such declaration or doing such thing, may make such declaration or a declaration as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of such incapable person, and all acts done by such substitute shall, for the purposes of this Act, be as effec- tual as if done by the person for whom he is substituted. 100. Copies of all specifications, drawings, and amendments left at the ^™'^^^'?".''l patent office after the commencement of this Act, printed for and sealed ^o^^ of^^offl- with the seal of the patent office, shall be transmitted to the Edinburgh cations, &c. Museum of Science and Art, and to the Enrolments Office of the Chancery Division in Ireland, and to the Eolls Office in the Isle of Man, within twenty -one days after the same shall respectively have been accepted or allowed at the patent office ; and certified copies of or extracts from any such documents shall be given to any person requiring the same on payment of the prescribed fee : and any such copy or extract shall be admitted in evidence in all Courts in Scotland and Ireland, and in the Isle of Man, with- out further proof or production of the originals. 101.— (1.) The Board of Trade may from time to time make such general Power for Board rules and do such things as they think expedient, subject to the provisions ^'j,^^g°„^i of this Act — . rules for dassi- (a) For regulating the practice of registration under this Act : fyinK goods and (b) For classifying goods for the purposes of designs and trade marks : '^''^of 'mtent '" (c) For making or requiring dupUeates of specifications, ametdment, draw- ^g^^ P ings, and other documents : (d) For securing and regulating the pubUshing and selling of copies, at such prices and in such manner as the Board of Trade think fit, of specifications drawings amendments and other documents : (e) For securing and regulating the making printing publishing and selling of indexes to, and abridgments of, specifications and other documents in the patent office ; and providing for the inspection of indexes and abridgments and other documents : (f) For regulating (with the approval of the Treasury) the presentation of copies of patent office publications to patentees and to pubUc autho- rities, bodies, and institutions at home and abroad ; (g) Generally for regulating the business of the patent office, and aU things by this Act placed under the direction or control of the comptroller, or of the Board of Trade. (2.) Any of the forms in the First Schedule to this Act may be altered or amended by rules made by the Board as aforesaid. n, ^i, (3.) General rules may be made under this section at any time atter the passing of this Act, but not so as to take effect before the commencement of this Act, and shall (subject as hereinafter mentioned) be of the sMne effect as if they were contained in this Act, and shall be judioiaUy noticed. (i ) Any rules made in pursuance of this section shall be laid before both Houses of Parliament, if Parliament be in session at the tune of making thereof, or, if not, then as soon as practicable after the beginning of the then next session of Parliament, and they shall also be advertised twice m the official journal to be issued by the comptroller. 1160 46 & 47 Vict. cap. 67. Annual reports of comptroller. (5.) If either House of Parliament, within the next forty days after any rules have been so laid before such House, resolve that such rules or any of them ought to be annulled, the same shall after the date of such resolu- tion be of no effect, without prejudice to the validity of anything done in the meantime under such rules or rule or to the making of any new rules or rule. 102. The comptroller shall, before the first day of June in every year, cause a report respecting the execution by or under him of this Act to be laid before both Houses of Parliament, and therein shaU include for the year to which each report relates all general rules made in that year under or for the purposes of this Act, and an account of all fees, salaries, and allowances, and other money received and paid under this Act. International arrangements for protection of inventions, designs, and trade marks. Provision for colonies and India. International and Colonial Arrangements. 103. — (1.) If Her Majesty is pleased to make any arrangement with the government or governments of any foreign state or states for mutual protection of inventions, designs, and trade marks, or any of them, then any person who has applied for protection for any invention, design, or trade mart in any such state, shall be entitled to a patent for his invention or to registration of his design or trade mark (as the case may be) under this Act, in priority to other applicants ; and such patent or registration shall have the same date as the date of the protection obtained [a) in such foreign state : Provided that his application is made, in the case of a patent within seven months, and in the case of a design or trade mark within four months, from his applying for protection in the foreign state with which the arrangement is in force : Provided that nothing in this section contained shall entitle the patentee or proprietor of the design or trade mark to recover damages for infringe- ments happening prior to the date of the actual acceptance of his complete specification, or the actual registration of his design or trade mark in this country, as the case may be : (2.) The publication in the United Kingdom, or the Isle of Man during the respective periods aforesaid of any description of the invention, or the use therein during such periods of the invention, or the exhibition or use therein during such periods of the design, or the publication therein during such periods of a description or representation of the design, or the use therein during such periods of the trade mark, shall not invalidate the patent which may be granted for the invention, or the registration of the design or trade mark : (3.) The application for the grant of a patent, or the registration of a design, or the registration of a trade mark under this section, must be made in the same manner as an ordinary application under this Act : Provided that, in the case of trade marks, any trade mark the registration of which has been duly applied for in the country of origin may be registered under this Act : (4.) The provisions of this section shall apply only in the case of those foreign states with respect to which Her Majesty shall from time to time by Order in Council declare them to be applicable, and so long only in the case of each state as the Order in Council shall continue in force with respect to that state. 104. — (1.) Where it is made to appear to Her Majesty that the legislature of any British possession has made satisfactory provision for the protection of inventions, designs, and trade marks, patented or registered in this country, it shall be lawful for Her Majesty from time to time, by Order in Council, to apply the provisions of the last preceding section, with such variations or additions, if any, as to Her Majesty in Council may seem fit, to such British possession. (2.) An Order in Council under this Act shall, from a date to be mentioned for the purpose in the Order, take efflect as if its provisions had been con- tained in this Act ; but it shall be lawful for Her Majesty in Council to revoke any Order in Council made under this Act. (a) 48 & 49 Vict. o. 63, s. 6. Patents, Designs, and Trade Marks Act, 1883. 1161 Offences. lOd. — (1.) Any person -who represents that any article sold byliim is a Penalty on patented article, when no patent has been granted for the same, or describes ^'^'^ '^S^ anjr design or trade mark applied to any article sold by him as registered to bTlatrnte? •which is not so, shall be liable for every offence on summary conviction to a fine not exceeding five pounds. (2.) A person shall be deemed, for the purposes of this enactment, to represent that an article is patented or a design or a trade mark is registered, if he sells the article with the word " patent, " "patented," " registered," or any word or words expressing or implying that a patent or registration has been obtained for the article stamped, engraved, or impressed on, or otherwise applied to, the article. 106. Any person who, without the authority of Her Majesty, or any of Penalty on the Eoyal Pamily, or of any Government Department, assumes or uses in unauthorised connexion with any trade, business, calling, or profession, the Royal arms, ^"fV''''™ °' or arms so nearly resembling the same as to be calculated to deceive, in. such ^ '"™^' a manner as to be calculated to lead other persons to believe that he is cariying on his trade, business, caUing, or profession by or under such authority as aforesaid, shall be liable on summary conviction to a fine not exceeding twenty pounds. Scotland; Ireland; S;c. 107. In any action for infringement of a patent in Scotland the provisions Saving for of this Act, with respect to calling in the aid of an assessor, shall apply, and gn^^^J the action shall be tried without a jury, unless the court shall otherwise direct, but otherwise nothing shall affect the jurisdiction and forms qf process of the courts in Scotland in such an action, or in any action or pro- ceeding respecting a patent hitherto competent to those courts. For the purposes of this section " court of appeal " shall mean any court to which such action is appealed. „ 108. In Scotland any offence under this Act declared to be punishable oe^to^S^"'" on summary conviction may be prosecuted in the sheriff court. Scotland. 109. — (1.) Proceedings in Scotland for revocation of a patent shall be in Froceedings for the form of an action of reduction at the instance of the Lord Advocate, or revocation of at the instance of a party having interest with his concurrence, which con- S^*?J^ ^ ourrence may be given on just cause shown only. ° ' (2.) Service of all writs and summonses in that action shall be made according to the forms and practice existing at the commencement of this Act. 110. All parties shall, notwithstanding anything in this Act, have in ^^^'™°* Ireland their remedies under or in respect of a patent as if the same had been ii-eiand. granted to extend to Ireland only. 111.— (1.) The provisions of this Act conferring a special jurisdiction on ^.^i^^g^^n the court as defined by this Act, shall not, except so far as the jurisdiction of courts, extends, affect the jurisdiction of any court in Scotland or Ireland in any proceedings relating to patents or to designs or to trade marks ; and, with reference to any such proceedings in Scotland, the term " the court " shall mean any Lord Ordinary of the Court of Session, and the term " Court of Appeal " shall mean either Division of the said Court ; and, with reference to any such proceedings in Ireland, the terms " the Court," and "the Court of Appeal," respectively mean the High Court of Justice in Ireland and Her Majesty's Court of Appeal in Ireland. (2.) If any rectification of a register under this Act is required in pursuance of any proceeding in a court in Scotland or Ireland, a copy of the order, decree, or other authority for the rectification, shall be served on the comp- troller, and he shall rectify the register accordingly. 112. This Act shall extend to the Isle of Man, and— Isle of Man. (1.) Nothing in this Act shall affect the jurisdiction of the courts in the Isle of Man, in proceedings for infringement or in any action or pro- ceeding respecting a patent, design, or trade mark competent to those courts ; (2.) The punishment for a misdemeanor under this Act in the Isle of Man shall be imprisonment for any term not exceeding two years, with or without hard labour, and with or without a fine not exceeding one hundred pounds, at the discretion of the court ; 1163 46 & 47 Vict. cap. 57. (3.) Any offence under this Act committed in the We of Man which -would in England be punishable on summary conTiotion may be prose- cuted, and any fine in respect thereof recovered at the instance of any person aggrieved, in the manner in which offences punishable on summary conviction may for the time being be prosecuted. Be^ealand saving for past operation of repealed enact- ments, &c. Former registers to be deemed continued. Saving for existing rules. Saving for prerogative. Repeal; Transitional Frovisions ; Savings. 113. The enactments described in the Third Schedule to this Act are hereby repealed. But this repeal of enactments shall not — (a) Affect the past operation of any of those enactnients, or any patent or copyright or right to use a trade mark granted or acquired, or application pending, or appointment made, or compensation granted, or order or direction made or given, or right, privilege, obligation, or liability acquired, accrued, or incurred, or anything duly done or suffered under or by any of those enactments before or at the commencement of this Act ; or (b) Interfere with the institution or prosecution of any action or proceed- ing, civil or criminal, in respect thereof, and any such proceeding may be carried on as if this Act had not been passed ; or (c) Take away or abridge any protection or benefi.t in relation to any such action or proceeding. 114. — (1.) The registers of patents and of proprietors kept under any enactment repealed by this Act shall respectively be deemed parts of the same book as the register of patents kept under this Act. (2.) The registers of designs and of trade marks kept under any enactment repealed by this Act shall respectively be deemed parts of the same book as the register of designs and the register of trade miarks kept under this Act. 115. All general rules made by the Lord Chancellor or by any other authority under any enactment repealed by this Act, and in force at the conamencement of this Act, may at any time after the passing of this Act be repealed altered or amended by the Board of Trade, as if they had been made by the Board under this Act, but so that no such repeal alteration or amend- ment shall take effect before the commencement of this Act ; and, subject as aforesaid, such general rules shall, so far as they are consistent vrith and are not superseded by this Act, continue in force as u they had been made by the Board of Trade under this Act. 116. Nothing in this Act shall take away abridge or prejudicially affect the prerogative of the Crown in relation to the granting of any letters patent or to the withholding of a grant thereof. Oeneral defini- tions. General Definitions. 117. — (1.) In and for the purposes of this Act, unless the context other- vrise requires, — "Person " includes a body corporate : "The court " means (subject to the provisions for Scotland, Ireland, and the Isle of Man) her Majesty's High Court of Justice in England : "Law officer " means her Majesty's Attorney-General or Solioitor-Greneral for England ; " The, Treasury " means the Commissioners of her Majesty's Treasury : "Comptroller" means the OomptroUer-Q-eneral of Patents, Designs, and Trade Marks : "Prescribed" means prescribed by any of the schedules to this Act, or by general rules under or within the meaning of this Act : "British possession" means any territory or place situate within her Majesty's dominions, and not being or forming part of the United Kingdom, or of the Channel Islands, or of the Isle of Man, and all territories and places under one legislature, as hereinafter defined, are deemed to be one Britidi possession for the purposes of this Act : "Legislature" includes any person or persons who exercise legislative authority in the British possession ; and where there are local legislatures as well as a central legislature, means the central legislature only. In the application of this Act to Ireland, " summary conviction " means a conviction under the Summary Jurisdiction Acts, that is to say, with refe- rence to the Dublin Metropolitan PoKce District the Acts regulating the Patents, Designs, and Trade Marks Act, 1883. 1163 duties of justices of the peace and of the police for such district, and else- where in Ireland the Petty Sessions (Ireland) Act, 1851, and any Act amending it. SCHEDULES. THE FIRST SCHEDULE. FoEMS OF Application, &c. FOBM A. Section 6. FoEM 01? Application fob Patent. I, (o) John Smith, of 29, Perry Street, Birmingham, in the county of (n) Here insert Warwick, Engineer, do solemnly and sincerely declare that I am in posses- name, address sion of an invention for (i) " Improvements in Sewing Machines ; " that I am J^toSot"^ the true and first inventor thereof ; and that the same is not in use by any /j) Here insert other person or persons to the best of my knowledge and belief ; and I title of inven- humbly pray that a patent may be granted to me for the said invention. tion. And I make the above solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act, 1835. (c) John Smith. (c) Signature of Declared at Birmingham, in the county of Warwick, this day of inventor. ,18 . Before me, [d ) James Adams, (d) Signature jMtice of the Feace. »2? ™« »' 'he '^ officer before whom the Note. — Where the above declaration is made out of the United Kingdom, declaration is the words "and by virtue of the Statutory Declarations Act, 1835," must '''^^^• be omitted ; and the declaration must be made before a British consular officer, or where it is not reasonably practicable to make it before such officer, then before a public officer diily authorized in that behalf. FobmB. FoKM OF Pbovisional Specification. Improvements in Sewing Machines (a) . [a) Here insert tiue as in I, (i) John Smith, of 29, Ferry Street, Birmingham, in the county of declaration. Warwick, Engineer, do hereby declare the nature of my invention for " Im- ^i^^^^^ provements in Sewing Machines," to be as foUows (c) : — and calling of' inventor as in ****** declaration. (d) John Smith. (°) 5^*™^ ,. ,„ *' short description Dated this day oi , lo . of invention. W Signature of Note. — No stamp is required on this document. mventor. 1164 46 & 47 Vict. cap. 57. (a) Here insert title, as ia declaration. (&) Here insert name, address, and calling of inventor, as in declaration. (c) Here insert fml description of invention. (d) Here state distinctly tlie features of novelty claimed. (e) Signature of inventor. Poem C. FoBM OF Complete Speoifioatioit. Improvements in Sewing Machines, (a) I, (i) John Smith, of 29, Ferry Street, Birmingham, in the county of Warwiek, Engineer, do hereby declare the nature of my invention for '' Im- provements in Sewing Machines," and in what manner the same is to he performed, to he particularly desorihed and ascertained in and by the f ollow- ina; statement («) : — « « * * » Having now particularly described and ascertained the nature of my said invention and in what manner the same is to be performed, I declare that what I claim is (<^) . 1. 2. 3, &o. (e) John Smith. Dated this day of , 18 . Section 33. PoBM D. FoBii OP Patent. Victoria, by the grace of Gtod, of the TJnited Kingdom of Great Britain and Ireland, Queen, defender of the faith : to all to whom these presents shall come greeting : Whereas John Smith, of 29, Perry Street, Birmingham, in the county of Warwick, Engineer, hath by his solemn declaration represented unto us that he is in possession of an invention for "Improvements in Sewing Machines," that he is the true and first inventor thereof, and that the same is not in use by any other person to the best of his knowledge and belief : And whereas the said inventor hath humbly prayed that we would be graciously pleased to grant unto him (hereinafter together with his execu- tors, administrators, and assigns, or any of them, referred to as the said patentee) our royal letters patent for the sole use and advantage of his said invention : And whereas the said inventor hath by and in his complete specification particularly described the nature of his invention : And whereas we being willing to encourage aU inventions which may be for the public good, are graoioufly pleased to condescend to his request : Know ye, therefore, that we, of our especial grace, certain knowledge, and mere motion do by these presents, for us, our heirs and successors, give and grant unto the said patentee our especial license, full power, sole privi- lege, and authority, that the said patentee by himself, his agents, or Uoensees, and no others, may at all times hereafter during the term of years herein mentioned, make, use, exercise, and vend the said invention within our United Kingdom of Great Britain and Ireland, and Isle of Man, in such manner as to him or them may seem meet, and that the said patentee shall have and enjoy the whole profit and advantage from time to time accruing by reason of the said invention, during the term of fourteen years from the date hereunder vrritten of these presents : And to the end that the said patentee may have and enjoy the sole use and exercise and the fuU benefit of the said invention, we do by these presents for us, our heirs and successors, strictly command aU our subjects whatsoever within our United Kingdom of Great Britain and Ireland, and the Isle of Man, that they do not at any time during the continuance of the said term of fourteen years either directly or indirectly make use of or put in practice the said invention, or any part of the same, nor in anywise imitate the same, nor make or Patents, Designs, and Trade Marks Act, 1883. 1165 cause to be made any addition thereto or subtraction therefrom, -whereby to pretend themselves the inventors thereof, without the consent, licence or agreement of the said patentee in writing under his hand and seal, on pain of incurring such penalties as may be justly inflicted on such offenders for their contempt of this our royal command, and of being answerable to the patentee according to law for his damages thereby occasioned : provided that these our letters patent are on this condition, that, if at any time during the said term it be made to appear to us, our heirs, or successors, or any six or more of our privy council, that this our grant is contrary to law, or prejudicial or inconvenient to our subjects in general, or that the said invention is not a new invention as to the public use and exercise thereof within our United Kingdom of Great Britain and Ireland, and Isle of Man, or that the said patentee is not the first and true inventor thereof within this realm as aforesaid, these our letters patent shall forthwith deter- mine, and be void to all intents and purposes, notwithstanding anything hereinbefore contained : provided also, that if the said patentee shall not pay all fees by law required to be paid in respect of the grant of these letters patent, or ia respect of any matter relating thereto at the time or times, and in manner for the time being by law provided ; and also if the said patentee shall not supply or cause to be supplied, for our service, all such articles of the said invention as may be required by the officers or com- missioners administering any department of our service in such manner, at such times, and at and upon such reasonable prices and terms as shall be settled in manner for the time being by law provided, then, and in any of the said oases, these our letters patent, and all privileges and advantages whatever hereby granted shall determine and become void notwithstanding anything hereinbefore contained: Provided also that nothing herein con- tained shall prevent the granting of licences and in such manner and for such considerations as they may by law be granted : And lastly, we do by these presents for us, our heirs and successors, grant unto the said patentee that these our letters patent shall be construed in the most beneficial sense for the advantage of the said patentee. In witness whereof we have caused these our letters to be made patent this one thousand eight hundred and and to be sealed as of the one thousand eight hundred and Poem E. Section 47. Fonu OP Application fob Reqisteation op Design. day of , 18 . You are hereby requested to register the accompanying design, in (a) Here insert Class , in the name of {«) of , who claims to be the pro- J^^^i5^,"^r prietor thereof, and to return the same to . the individual Statement of nature of design . or flrm. Registration fees enclosed, £ , , s. To the Comptroller, Patent Office, 25, Southampton Buildings, Chancery Lane, W.C. (Signed) ]166 Section 62. (a) Here insert legibly the name, address, and business of the individual or firm. - 46 & 47 Vict. cap. 57. FOEM F. FoBM OP Application foe Keqisteation of Teabe Maek. (One representation to be fixed within this square, and t-wo others on separate sheets of foolscap of same size.) (Representations of a larger size may be folded, but must be mounted upon linen and affixed hereto.) Ton are hereby requested to register the accompanying trade mark [In Glass , iron in bars, sheets, and plates ; in Class , steam engines and boilers ; and in Class , warming apparatus'], in the name of [a), who claims to be the proprietor thereof. Registration fees enclosed, £ ,, s. To the Comptroller, Patent Office, 25, Southampton Buildings, Chancery Lane, W. C. (Signed) Note. — If the trade mark has been in use before August 13, 1876, state length of user. Section 24. THE SECOND SCHEDULE. Tees on instruments for obtaining Patents, and renewal, (a) Up to sealing. On application for provisional protection 1 On filing complete specification 3 s. d. 4 On filing complete specification with first application [b) Fwrther before end of four years from date of patent. On certificate of renewal 4 50 (o) Further before end of seven years, or in the ease of patents granted after the commencement of this Act, before the end of eight years from date of patent. On certificate of renewal 100 Or in lieu of the fees o/£50 and £100 the following annual fees : — Before the expiration of the fourth year from the date of the patent 1 „ fifth ,, sixth , , seventh „ eighth , , ninth , , tenth ,, eleventh ,, twelfth ,, thirteenth 10 10 10 10 15 16 20 20 20 20 Patents, Designs, and Trade Marks Act, 1883. 1167 THE THIRD SCHEDULE. Enactments repealed. Section 113. 21 James I. c. 3 , , , [1623.] 6&6Will. 4, u. 62. [1835.] In part. 6&6Wm. 4, c. 83. [1835.] 2 & 3 Vict. 0. 67 . . . [1839.] 6 & 6 Vict. c. 100 [1842.] 6 & 7 Vict. c. 65 . . 11843.] 7&8 Viot. 0. 69(a) [1844.] In part. 13 & 14 Viot. 0. 104 . [1850.] 16 & 16 Vict. 0. 83 . [1852.] 16 & 17 Viot. u. 5 . [1853.] 16 & 17Viot. 0.116. [1863. ] 21 & 22 Viot. u. 70 [1858.] 22 Viot. 0. 13 [1859.] 24 & 25 Viot. 0. 73 , [1861.] 28 & 29 Viot. 0. 3 , [1866.] 33 & 34 Viot. c. 27 , [1870.] 33 & 34 Viot. c. 97 , [1870.] The Statute of Monopolies. In part ; namely, — Sections, ten, eleven, and twelve. The Statutory Declarations Act, 1835. In part ; namely, — Section eleven. An Act to amend the law touching letters patent for inventions. An Act to amend an Act, of the iifth and sixth years of the reign of King William the Fourth, intituled ' ' An Act to amend the law touching letters patent for inventions." An Act to consolidate and amend the laws relating to the copyright of designs for ornamenting articles of manufacture. An Act to amend the laws relating to the copyright of designs. An Act for amending an Act passed in the fourth year of the reign of his late Majesty, intituled "An Act for the better administration of justice in his Majesty's Privy Council, and to extend its jurisdiction and powers." In part ; namely, — Sections two to five, both included. An Act to extend and amend the Acts relating to the copyright of designs. The Patent Law Amendment Act, 1852. An Act to substitute stamp duties for fees on passing letters patent for inventions, and to provide for the purchase for the public use of certain indexes of specifications. An Act to amend certain provisions of the Patent Law Amendment Act, 1852, in respect of the trans- mission of certified copies of letters patent and specifications to certain offices in Edinburgh and Dublin, and otherwise to amend the said Act. An Act to amend the Act of the fifth and sixth years of her present Majesty, to consolidate and amend the laws relating to the copyright of designs for ornamenting articles of manufacture. An Act to amend the law concerning patents for inventions with respect to inventions for improve- ments in instruments and munitions of war. An Act to amend the law relating to the copyright of designs. The Industrial Exhibitions Act, 1865. The Protection of Inventions Act, 1870. The Stamp Act, 1870. In part ; namely, — Section sixty-five, and in the schedule the words and figures. ' ' Certificate of the registration of a design ..£b And see section 65." (a) JVoi«.— Sections six and seven of this Act are repealed by the Statute Law Eevision (No. 2) Act, 1874. 1168 48 & 49 Vict. cap. 63. 38 & 39 Vict. 91 ,. The Trade Marks Eegistration Act, 1875. [187S.] 38 & 39 Vict, c [1875.] 39 & 40 Viot. 93.. The Copyright of Designs Act, 1875. 33 .. The Trade Marks Registration Amendment Act, [1876.] 1876. 40 & 41 Viot. c. [1877.] 43 & 44 Viot. 0. 37 .. The Trade Marks Registration Extension Act, 1877. 10 .. The Great Seal Act, 1880. [1880.] In part ; namely, — Section five. 46 & 46 Viot. V. 72,. The Revenue, EViendly Societies, and National Debt [1882.] Act, 1882. In part ; namely, — Section sisteen. Construction and short title. Amendment of s. 5 of 46 & 47 Viet. 0. 57. 5 & 6 Will. 4, e. 62. Amendment of ss. 8, 9, and 12 of 46 & 47 Viot. 0.57. Bpeclfications, &c. not to be published unless application accepted. Power to grant patents to several pei-sons jointly. 48 & 49 Vict. c. 63. An Act to Amend the Patents, Designs, and Trade Marks Act, 1883. I14th August, 1885.] Be it enacted hy the Queen's most Excellent Majesty, hy and -with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act shall be construed as one with the Patents, Designs, and Trade Marks Act, 1883 (in this Act referred to as the principal Act). This Act may be cited as the Patents, Designs, and Trade Marks (Amend- ment) Act, 1885, and this Act and the principal Act may be cited together as the Patents, Designs, and Trade Marks Acts, 1883 and 1885. 2. Whereas subsection two of section five of the principal Act req[uires a declaration to be made by an applicant for a patent to the effect in that sub- section mentioned, and doubts Imve arisen as to the nature of that declara- tion , and it is expedient to remove such doubts : Be it therefore enacted that : The declaration mentioned in subsection two of section five of the principal Act may be either a statutory declaration under the Statutory Declarations Act, 1835, or not, as may be from time to time prescribed. 3. Whereas under the principal Act, a. complete specification is required (by section eight) to be left within nine months, and (by section nine) to be accepted within twelve months, from the date of application, and a patent is required by section twelve to be sealed within fifteen months from the date of application, and it is expedient to empower the comptroller to extend in certain cases the said times : Be it therefore enacted as follows : A complete specification may be left and accepted within such extended times, not exceeding one month and three months respeotivdy after the said nine and twelve months respectively as the comptroller may on payment of the prescribed fee allow, and where such extension of time has been allowed, a further extension of four months after the said fifteen months shall be allowed for the sealing of the patent ; and the priacipal Aet shall have effect as if any time so allowed were addded to the said periods specified in the principal Act. 4. Where an application for a patent has been abandoned, or become void, the specification or specifications and drawings (if any) accompanying or left in connexion with such application, shall not at any time be open to public inspection or be published by the comptroller. 6. Whereas doubts have arisen whether under the principal Act a patent may lawfully be granted to several persons jointly, some or one of whom only are or is the true and first inventors or inventor; be it therefore Companies Act, 1886, 1169 enacted and declared that it has been and is lawful under the principal Act to grant such a patent. 6. In subsection one of section one hundred and three of the principal Amendment of Act, the words " date of the application " shall be substituted for the words yicJ'c st' ^'^ " date of the protection obtained." 49 VrCT. 0. 23. An Act to amend the Companies Ada of 1862, 1867, 1870, 1877, 1879, 1880, and 1883. [4tt June, 1886.] Webebas it has become expedient to amend the provisions of the Companies 25 & 2« Vict. Act, 1862, and of the other Acts amending the same hereinafter recited, in c. 89. so far as the said provisions relate to the liquidation of companies in Scotland : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as the Companies Act, 1886. short title. 2. This Act shall, so far as consistent with the tenor thereof, be construed Construction as one with the Companies Acts, 18^2, 1867, 1877, 1879, 1880, and 1883, of Acts, and the Joint Stock Companies Arrangement Act, 1870, and the said Acts „ ^^^ and this Act may be referred to as the Companies Acts, 1862 to 1886. 30 &'3i YiO,. 8. In the winding up, by or subject to the supervision of the court, of e. 131. any company under the Companies Acts, 1862 to 1886, whose registered 40 & 41 Vict. office is in Scotland, where the winding up shall commence after the passing ^ ^'43 y;,,). of this Act, the following provisions shall have effect : c. 76. (1.) Suci winding up shall, in the case of a winding up by the court as at 43 pet. c. 19. the commencement thereof, and in the case of a winding up subject ^^ * *' ''™- to the supervision of the court as at the date of the presentation of 33 g^'^i vict. the petition, on which a supervision order is afterwards pronounced, e. 104. be equivalent to an arrestment in execution and decree of forth- Effect of coming, and to an executed or completed poinding ; and no arrest- ^S/pf^^l^. ment or poinding of the funds or effects of the company, executed ii,„.up by or on or after the sixtieth day prior to the commencement of the subject to super- winding up by the court, or to the presentation of the petition on vision of court, which a supervision order is made, as the case may be, shall be effectual ; and such funds or effects, or the proceeds of such effects, if sold, shall be made forthcoming to the liquidator : Provided that any arrester or poinder, before the date of such winding up, or of such petition, as the case may be, who shall be thus deprived of the benefit of his diligence, shall have preference out of such funds or effects for the expense bonS fide incurred by him in such dUigjence. (2.) Such winding up shall, as at the respective dates aforesaid, be equivalent to a decree of adjudication of the heritable estates of the company for payment of the whole debts of the company, principal and interest, accumulated at the said dates respectively, subject always to such preferable heritable rights and securities as existed at the said dates and are valid and unchallengeable, and the right to poind the ground hereinafter provided. (3.) The provisions of sections one hundred and twelve to one hundred and seventeen inclusive, and also of section one hundred and twenty, of the Bankruptcy (Scotland) Act, 1856, shall, so far as consistent 19 & 20 Vict, vnth the tenor of the recited Acts, apply to the realization of <=• ra- heritable estates affected by such heritable rights and securities as aforesaid ; and for the purposes of this Act the words " sequestra- tion " and " trustee " occurring in said sections of the Bankruptcy (Scotland) Act, 1856, shall mean respectively "liquidation" and "liquidator"; and the expression "the lord ordinary or the court " shall mean " the court " as defined by this Act. 1170 49 YicT. CAP. 23. Banking of claims. Jurisdiction of the Lord Ordinary on the BiUs in vaca^ tion. 25 & 26 Vict, c. 89. 83 & 34 Vict, c. 104. (4.) No poinding of the ground wHoh has not heen carried into execution by sale of the effects sixty days before the respective dates aforesaid shall, except to the extent hereinafter provided, be available in any question with the liquidator : Provided that no creditor vho holds a security over the heritable estate preferable to the right of the liquidator shall be prevented from executing a poinding of the ground after the respective dates aforesaid, but such poinding shall in competition with the liquidator be available only for the interest on the debt for the current half-yearly term, and for the arrears of interest for one year immediately before the commencement of such term. 4. In the winding up of any company under the Companies Acts, 1862 to 1886, whose registered office is in Scotland, and where the winding up shall commence after the passing iyi this Act, the general and special rules in regard to voting and ranking for payment of dividends, provided by the Bankruptcy (Scotland) Act, 1856, sections forty-nine to sixty-six inclusive, or any other rules in regard thereto which may be in force for the time being in the sequestration of the estates of bankrupts in Scotland, shall, so far as consistent with the tenor of the said recited Acts, apply to creditors of such companies voting in matters relating to the winding up, and ranking for payment of dividends ; and for this purpose sequestration stall be taken to mean liquidation, trustee to mean liquidator, and sheriff to mean the court. 6. Wherever the expression "the court of session" occurs in the said recited Acts, or the expression " the court " occurring therein or in this Act refers to the court of session in Scotland, it shall mean and include either division thereof, or, in the event of a remit to a permanent Lord Ordinary, as hereinafter provided, such Lord Ordinary, during session, and in time of vacation the Lord Ordinary on the Bills ; and in regard to orders or judg- ments pronounced by the said Lord Ordinary on the Bills in vacation, l£e following provisions shall have effect: — (1.) No order or judgment pronounced by the said Lord Ordinary in vacation, under or by virtue, in whole or in part, of the following sections of the said recited Acts, shall be subject to review, reduc- tion, suspension, or stay of execution, videlicet, of the Compaiiies Act, 1862, sections ninety-one, one hundred and seven, one hundred and fifteen, one hundred and seventeen, and one hundred and twenty-seven, and section one hundred and forty-nine so far as it authorises the court to direct meetings of creditors or contribu- tories to be held, and that portion of section two of the Joint Stock Companies Arrangement Act, 1870, which authorises the court to order that a meeting of creditors or class of creditors shall be summoned ; and also sections one hundred and twenty-two and one hundred and twenty-three of the Companies Act, 1862, so far as they may affect the sections above enumerated. (2.) All other orders or judgments prouoxmced by the said Lord Ordinary in vacation (except as after mentioned) shall be subject to review only by reclaiming note, in common form, presented (notwith- standing the terms of section one hundred and twenty-four of the Companies Act, 1862,) within fourteen days from the date of such order or judgment : Provided always, that such orders or judgments pronounced by the said Lord Ordinary in vacation, under or by virtue, in whole or in part, of the following sections of the Com- panies Act, 1862, shall, from the dates of such orders or judgments, and notwithstanding any reclaiming note against the same, be carried out and receive effect till such reclaiming note be disposed of by the court, videlicet, sections eighty-five, eighty-seven, eighty- nine, ninety-three (except in regard to the removeil or remuneration of liquidators), ninety-five, ninety-six (except in regard to the power to sell), one hundred, one hundred and eighteen, first part of one hundred and forty-one, one hundred and forty-seven, one hundred and fifty (except in regard to the removal of liqxiidators and the filling up of vacancies caused by such removal), one hundred and ninety-seven, one hundred and ninety-eight, and two hundred and one ; and also sections one hundred and twenty-two, and one hundred and twenty- three of the Companies Act, 1862, so far as they may affect the sections above enumerated. Patents Act, 1886. 1171 Provided that nothing in this section contained shall in any -way afEect the provisions of section one hundred and twenty-one of the Companies Act, 1862, in reference to decrees for payment of calls in the winding up of com- panies, whether voluntary or hy or subject to the supervision of the court. 6. When the court makes a winding up or a supervision order, or at any Winding up time thereafter, it shall he lawful for the court, in either division thereof, if P*f be remitted it thinks fit, to direct all subsequent proceedings in the winding up to be taken OiaS^. before one of the permanent Eords Ordinaiy, and to remit the winding up to him accordingly ; and thereupon such Lord Ordinary shall, for the purposes of the winding up, be deemed to be " the court," within the meaning of the recited Acts and this Act, and shall have, for the purposes of such winding up, all the jurisdiction and powers of the court of session : Provided always, that all orders or judgments pronounced by such Lord Ordinary shall be subject to review only by reclaiming note in common form, presented (not- withstanding the terms of section one hundred and twenty-four of the Companies Act, 1862,) within fourteen days from the date of such order or judgment. But, should a reclaiming note not be presented and moved during session, the provisions of section five of this Act shall apply to such orders or judgments : Provided also, that the said Lord Ordinary may report to the division of the court any matter which may arise in the course of the winding up. This section and the immediately preceding section shall come into force from the passing of this Act, and shall include companies then in the course of being wound up. 49 & 50 ViOT. 0. 37. An Act to remove certain Doubts respecting the construction of the Patents, Designs, and Trade Marks Act, 1883, so far as respects the Drawings by which Specifications are required to be accompanied, and as respects Exhibitions. l2oth June, 1886.] Whebbas by section five of the Patents, Designs, and Trade Marks Act, *8 & 47 Vict. 1883, specifications, whether provisional or complete, must be accompanied "■ ^'^• by drawings if required, and doubts have arisen as to whether it is sufficient that a complete specification refers to the drawings by which the provisional specification was accompanied, and it is expedient to remove such doubts : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Patents Act, 1886, and shall be construed Short title and as one with the Patents, Designs, and Trade Marks Acts, 1883 and 1885, ^'^'^ vSt' and, together with those Acts, may be cited as the Patents, Designs, and o 57 Trade Marks Acts, 1883 to 1886. 48 &"49 Vict. 2. The requirement of sub-section four of section five of the Patents, <=■ ^■ Designs, and Trade Marks Act, 1883, as to drawings shall not be deemed to 7^^ same draw- be insufficiently complied vrith by reason only that instead of being aocom- ^^y't^th^""™" panied by drawings the complete specification refers to the drawings which speoifloations. accompanied the provisional specification. And no patent heretofore sealed shall be invalid by reason only that the complete specification was not ac- companied by drawings, but referred to those which accompanied the pro- visional specification. VOL. II. — S. 4 H 1172 50 & 51 Vict. cap. 28. Protection of Satents and esigns ex- hibited at international exhibitions. 8. Whereas by section thirty-nine of the Patents, Designs, and Trade Marks Act, 1883, as respects patents, and by section fifty-seven of the same Act as respects designs, proTision is made that the exhibition of an invention or design at an industrial or international exhibition, certified as such by the Board of Trade, shall not prejudice the rights of the inventor or proprietor thereof, subject to the conditions therein mentioned, one of which is that the exhibitor must, before exhibiting the invention, design, or article, or publishing a description of the design, give the controller the prescribed notice of his intention to do so : And whereas it is expedient to provide for the extension of the said sections to industrial and international exhibitions held out of the United Kingdom, be it therefore enacted as follows : It shaE be lawful for Her Majesty, by Order in Council, from time to time to declare that sections thirty-nine and fifty-seven of the Patents, Designs, and Trade Marks Act, 1883, or either of those sections, shall apply to any exhibition mentioned in the Order in like manner as if it were an industrial or international exhibition certified by the Board of Trade, and to provi^s that the exhibitor shall be relieved from the conditions, specified in the said sections, of giving notice to the controller of his intention to exhibit, and shall be so relieved either absolutely or upon such terms and conditions as to Her Majesty in Council may seem fit. Short title. Offences as to trade marks and trade descrip- tions. 50 & 51 Vict. c. 28. An Act to consolidate and amend the Law relating to Fraudulent Marks on Merchandise. [23rd August, 1887.] Bb it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Merchandise Marks Act, 1887. 2. — (1.) Every person who — fa) Forges any trade mark ; or (b) Falsely applies to goods any trade mark or any mark so nearly, resembling a trade mark as to be calculated to deceive ; or (o) Makes any die, block, machine, or other instrument for the purpose of forging, or for being used for forging, a trade mark ; or (d) Applies any false trade description to goods ; or (e) Disposes of or has in his possession any die, block, machine, or other instrument for the purpose of forging a trade mark ; or (f ) Causes any of the things above in this section mentioned to be done, shall, subject to the provisions of this Act, and unless he proves that he acted without intent to defraud, be guilty of an offence against this Act. (2.) Every person who sells, or exposes for, or has in his possession for, sale, or any purpose of trade or manufacture, any goods or things to which any forged trade mark or false trade description is applied, or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, as the case may be, shaU, unless he proves — (a) That having taken all reasonable precautions against committing an offence against this Act, he had at the time of the commission of Mekqhandise Maeks Act, 1887. 1173 the alleged ofienoeno reason to suspeet the geniiineneas of the trade mark, mark, or trade description ; and (b) That on demand made by or on behalf of the prosecutor, he gave aU the information in his power with respect to the persons from whom he obtained such goods or things ; or (o) That otherwise he had acted innocently ; be gfuilty of an offence against this Act. (3.) Every person guilty of an offence against this Act shall be liable — (i) On conviction on indictment, to imprisonment, with or without hard labour, for a term not exceeding two years, or to fine, or to both imprisonment and fine ; and (ii) On summary conviction to imprisonment, with or without hard labour, for a term not exceeding four months, or to a fine not exceeding twenty pounds, and in the case of a second or subsequent conviction to imprisonment, with or without hard labour, for a term not exceedbag six months, or to a fine not exceeding fifty pounds ; and (iii) In any case, to forfeit to her Majesty every chattel, article, instru- ment, or thing by means of or in relation to which the offence has been committed. (4.) The court before whom any person is convicted under this section may order any forfeited articles to be destroyed or otherwise disposed of as the couit thinks fit. (5.) If any person feels aggrieved by any conviction made by a court of summary jurisdiction, he may appeal therefrom to a court of quarter sessions. (6.) Any offence for which a person is under this Act liable to punishment on summary conviction may be prosecuted, and any articles liable to be forfeited under this Act by a court of summary jurisdiction may be forfeited, in manner provided by the Summary Jurisdiction Acts : Provided that a 42 & 43 Vict, person charged with an offence under this section before a court of summary "• 49. jurisdiction shall, on appearing before the court, and before the charge is gone into, be informed of his right to be tried on indictment, and Q he requires be so tried accordingly. 8.— (1.) For the purposes of this Act — The expression "trade mark" means a trade mark registered in the Deflnitions. register of trade marks kept under the Patents, Designs, and Trade 46 & 47 Vict. Marks Act, 1883, and includes any trade mark which, either with or without registration, is protected by law in any British possession or foreign State to which the provisions of the one hundred and third section of the Patents, Designs, and Trade Marks Act, 1883, are, under Order in Council, for the time being applicable : The expression "trade description" means any description, statement, or other indication, direct or indirect, (a) as to the number, quantity, measure, gauge, or weight of any goods, or (b) as to the place or country in which any goods were made or pro- duced, or (c) as to the mode of manufacturing or producing any goods, or (d) as to the material of which any goods are composed, or (e) as to any goods being the subject of an existing patent, privilege,. or copyright, and the use of any figure, word, or mark which, according to the custom of the trade, is commonly taken to be an indication of any of the above matters, shall be deemed to be a trade description within the meaning of this Act : The expression " false trade description " means a trade description which is false in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise, where that alteration makes the description false in a material respect, and the fact that a trade descrip- tion is a trade mark, or part of a trade mark, shall not prevent such trade description being a false trade description within the meaning of this Act : -l j; j The expression " goods " means anything which is the subject of trade, manufacture, or merchandise : The expressions "person," " manufacturer, dealer, or trader, and pro- prietor " include any body of persons corporate or unincorporate : 4h2 1174 50 & 51 Vict. cap. 28. mar] irging irk. trade Applying marka and descrip- tions. Exemption of certain persons employed in ordinary course of business. The expression "name " includes any abbreviation of a name. (2.) The provisions of this Act respecting the application of a false trade description to goods shaU extend to the application to goods of any such figures, words, or marks, or arrangement or combination thereof, whether including a trade mark or not, as are reasonably calculated to lead persona to believe that the goods are the manufacture or merchandise of some person other than the person whose manufacture or merchandise they really are. (3.) The provisions of this Act respecting the application of a false trade description to goods, or respecting goods to which a false trade description is applied, shall extend to the application to goods of any false name or initials of a person, and to. goods with the false name or initials of a person applied, in like manner as if such name or initials were a trade description, and for the purpose of this enactment the expression false name or initials means as applied to any goods, any name or initials of a person which — (a) are not a trade mark, or part of a trade mark, and (b) are identical with, or a colourable imitation of the name or initials of a person carrying on business in connexion with goods of the same description, and not having authorised the use of such name or initials, and (c) are either those of a fictitious person or of some person not bonS. fide carrying on business in connexion with such goods. 4. A person shall be deemed to forge a trade mark who either — (a) without the assent of the proprietor of the trade mark makes that trade mark or a mark so nearly resembling that trade mark as to be calculated to deceive ; or (b) falsifies any genuine trade mark, whether by alteration, addition, effacement, or otherwise i and any trade mark or mark so made or falsified is in this Act referred to as a forged trade mark. Provided that in any prosecution for forging a trade mark the burden of proving the assent of the proprietor shall lie on the defendant. 6. — (1.) A person shall be deemed to apply a trade mark or mark or trade description to goods who — (a) applies it to the goods themselves ; or (b) applies it to any covering, label, reel, or other thing in or with which the goods are sold or exposed or had in possession for any purpose of sale, trade, or manufacture ; or (o) places, encloses, or annexes any goods which are sold or exposed or had in possession for any purpose of sale, trade, or manufacture, in, with, or to any covering, label, reel, or other thing to which a trade mark or trade description has been applied ; or (d) uses a trade mark or mark or trade description in any manner calcu- lated to lead to the belief that the goodB in connexion with which it is used are designated or described by that trade mark or mark or trade description. (2.) The expression " covering " includes any stopper, cask, bottle, vessel, box, cover, capsule, case, frame, or wrapper ; and lie expression " label " includes any band or ticket. A trade mark, or mark, or trade description, shall be deemed to be applied whether it is woven, impressed, or otherwise worked into, or annexed, or afiixed to the goods, or to any covering, label, reel, or other thing. (3.) A person shall be deemed to falsely apply to goods a trade mark or mark, who without the assent of the proprietor of a trade mark 'applies such trade mark, or a mark so nearly resembling it as to be calculated to deceive, but in any prosecution for falsely applying a trade mark or mark to goods the burden of proving the assent of the proprietor shall lie on the defendant. 6. Where a defendant is charged with making any die, block, machine, or other instrument for the purpose of forging, or being used for forging, a trade mark, or with falsely applying to goods any trade mark or any mark so nearly resembling ", trade mark as to be calculated to deceive, or with applying to goods any false trade description, or causing any of the things in this section mentioned to be done, and proves — (a) That in the ordinary oourse of his business he is employed, on behalf of other persons, to make dies, blocks, machines, or other instru- ments for making, or being used in maldng, trade marks, or as the Merchandise Marks Act, 1887. 1175 case may he, to apply marks or dfiBOriptions to goods, and that in the case which is the subject of the charge he was so employed by some person resident in the United Kingdom, and was not interested in the goods by way of profit or commission dependent on the sale of such goods ; and (b) That he took reasonable precautions against committing the ofEenee charged ; and (o) That he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade mark, mark, or trade description ; and (d) That he gave to the prosecutor all the information in his power with respect to the persons on whose behalf the trade mark, mark, or description was applied — he shall be discharged from the prosecution, but shall be Uable to pay the costs incurred by the prosecutor, unless he has given due notice to him that he will rely on the above defence. 7. Where a watch case has thereon any words or marks which constitute, Application of or are by common repute considered as constituting, a description of the Act to watches, country in which the watch was made, and the watch bears no description of the country where it was made, those words or marks shall primd facie be deemed to be a description of that country within the meaning of this Act, and the provisions of this Act with respect to goods to which a false trade description has been applied, and with respect to selling or exposing for or having in possession for sale, or any purpose of trade or manufacture, goods with a false trade description, shall apply accordingly, and for the purposes of this section the expression "watch " means all that portion of a watch which is not the watch case. 8.— (1.) Every person who after the date fixed by Order in CounoU sends Mark on watch or brings a watch case, whether imported or not, to any assay office in the "*'*• United Kingdom for the purpose of being assayed, stamped, or marked, shall make a declaration declaring in what country or place the case was made. If it appears by such declaration that the watch case was made in some country or place out of the United Kingdom, the assay office shall place on the case such a mark (differing from the mark placed by the office on a watch case made in the United Kingdom), and in such a mode as may be from time to time directed by Order in Council. (2.) The declaration may be made before an officer of an assay office, appointed in that behalf by the office (which officer is hereby authorised to administer such a declaration), or before a justice of the peace, or a commis- sioner having power to administer oaths in the Supreme Court of Judica- ture in England or Ireland, or in the Court of Session in Scotland, and shall be in such form as may be from time to time directed by Order in Council. (3.) Every person who makes a false declaration for the purposes of this section shall be liable, on conviction on indictment, to the penalties of perjury, and on summary conviction to a fine not exceeding twenty pounds for each offence. 9. In any indictment, pleading, proceeding, or document, in which any Trade mark, trademark or forged trade mark is intended to be mentioned, it shall be howdracribcd sufficient, without further description and without any copy or facsimile, "" pleading, to state that trade mark or forged trade mark to be a trade mark or forged trade mark. 10. In any prosecution for an offence against this Act, — Sules as to (1.) A defendant, and his wife or her husband, as the case may be, may, evidence. if the defendant thinks fit, be called as i witness, and, if called, shall be sworn and examined, and may be cross-examined and re-examined in like manner as any other witness. (2.) In the case of imported goods, evidence of the port of shipment shaU be primd facie evidence of the place or country in which the goods were made or produced. 11. Any person who, being within the United Kingdom, procures, covmsels, Punishment of aids, abets, oris accessory to the commission, without the United Kingdom, of accessories. any act, which, if committed in the United Kingdom, would under this Act be a misdemeanour, shaU be guilty of that misdemeanour as a principal, and be liable to be indicted, proceeded against, tried, and convicted in any county or 1176 60 ^ 51 Vict. cap. 28. Search Tnurant. ExtenBion of 22 & 23 Vict, c. 17, to offences luider this Act. Costs of defence or prosecution. liimitation of prosecution. rrohibition on importation; 39 & 40 Vict, c. 36. ■ place in the United Kingdom in which he may be, as if the misdemeanonr had been there committed. 12. (1.) Wbere, upon information of an offence against this Act, a justice has issued either a summons requiring the defendant charged by such infor- mation to appear to answer to the same, or a warrant for the arrest of such defendant, and either the said justice on or after issuing the summons or warrant, or any other justice, is satisfied by information on oath that there is reasonable cause to suspect that any goods or things by means of or in relation to which such offence has been committed are in any house or premises of the defendant, or otherwise in his possession or under his control in any place, such justice may issue a warrant under his hand by virtue of which it shall be lawful for any constable named or referred to in the warrant, to enter such house, premises, or place at any reasonable time by day, and to search there for and seize and take away those goods or things ; and any goods or things" seized under any such warrant shall be brought before a court of summary jurisdiction for the purpose of its being determined whether the same are Or are not liable to forfeiture under this Act. (2.) If the owner of any goods or things which, if the owner thereof had been conTicted, would be liable to forfeiture under this Act, is unknown or cannot be found, an information or complaint may be laid for the purpose only of enforcing such forfeiture, and a court of summary jurisdiction may cause notice to be advertised stating that, unless cause is shown to the con- trary at the time and place named in the notice, such goods or things will be forfeited, and at such time and place the court, unless the owiier or any person on his behalf, or other person interested in the goods or things, shows cause to the contrary, may order such goods or things or any of them to he forfeited. (3.) Any goods or things forfeited under this section, or under any other provision of this Act, may be destroyed or otherwise disposed of, in such manner as the court by which the same are forfeited may direct, and the court may, out of any proceeds which may be realised by the disposition of such goods (all trade marks and trade descriptions being first obliterated), award to any innocent party any loss he may have innocently sustained in dealing with such goods, 13. The Act of i£e session of the twenty-second and twenty-third years of the reign of her present Majesty, chapter seventeen, intituled ' ' An Act to prevent vexatious indictments for certain misdemeanours," shall apply to any offence punishable on indictment under this Act, in like manner as if such offence were one of the offences specified in section one of that Act, but this section shall not apply to Scotland. 14. On any prosecution under this Act the court may order costs to be paid to the defendant by the prosecutor, or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively. 15. No prosecution for an offence against this Act shall be commenced after the expiration of three years next after the commission of the offence, or one year next after the first discovery thereof by the prosecutor, whichever expiration first happens. 16. Whereas it is expedient to make further provision for prohibiting the importation of goods which, if sold, would be liable to forfeiture under this Act ; be it therefore enacted as follows : (1.) AU such goods, and also all goods of foreign manufacture bearing any name or trade mark being or purporting to be the name or trade mark of any manufacturer, dealer, or trader in the United Kingdom, unless such name or trade mark is accompanied by a definite indica- tion of the country in which the goods were made or produced, are hereby prohibited to be imported into the United Kmgdom, and, subject to the provisions of this section, shall be included among goods prohibited to be imported as if they were specified in section forty-two of the Customs Consolidation Act, 1876. (2.) Before detaining any such goods, or taking any further proceedings with a view to the forfeiture thereof under the law relating to the' Customs, the Commissioners of Customs may require the regulations under this section, whether as to information, security, conditions, or other matters, to be complied with, and may satisfy themselves in Merchandise Marks Act, 1887. 1177 accordance with those regulations that the goods are such as are prohibited by this section to be imported. (3.) The Commissioners of Customs may from time to time make, revoke, and vary regulations, either general or special, respecting the deten- tion and forfeiture of goods the importation of -which is prohibited by this section, and the conditions, if any, to be fulfilled before such detention and forfeiture, and may by such regfulations deter- mine the information, notices, and security to be given, and the evidence requisite for any of the purposes of this section, and the mode of verification of such evidence. (4.) Where there is on any goods a name -which is identical -with or a colourable imitation of the name of a place In the United Kingdom, that name, unless accompanied by the name of the country in which such place is situate, shall be treated for the purposes of this section as if it were the name of a place in the United Kingdom. (6.) Such regulations may apply to all goods the importation of which is prohibited by this section, or different regulations may be made respecting different classes of such goods or of offences in relation to such goods. (6.) The Commissioners of Customs, in making and in administering the regulations, and generally in the administration of this section, whether in the exercise of any discretion or opinion, or otherwise, shall act under the control of the Commissioners of her Majesty's Treasury. (7.) The regulations may pro-idde for the informant reimbursing the Com- missioners of Customs all expenses and damages incurred in respect of any detention made on his information, and of any proceedings consequent on such detention. (8.) All regulations under this section shall be published in the " London Gazette " and in the "Board of Trade Journal." (9.) This section shall have effect as if it were part of the Customs Consoli- dation Act, 1876, and shall accordingly apply to the Isle of Man as if it were part of the United Kingdom. (10.) Section two of the Eevenue Act, 1883, shall be repealed- as from a 48&4TVict. day fixed by regulations under this section, not being later than the o. 66. first day of January one thousand eight hundred and eighty-eight, -without prejudice to anything done or suffered thereunder. 17. On the sale or in the contract for the sale of any goods to which a implied war- trade mark, or mark, or trade description has been applied, the vendor shall ranty on sale of be deemed to warrant that the mark is a genuine trade mark and not forged "laried goods. or falsely applied, or that the trade description is not a false trade description within the meaning of this Act, unless the contrary is expressed in some writing signed by or on behalf of the vendor and delivered at the time of the Sale or contract to and accepted by the vendee. 18. Where, at the passing of this Act, a trade description is lawfully and Proviaioiw of generally applied to goods of a particular class, or manufactured by a par- Act aa to false ticular method, to indicate the particular class or method of manufacture of j^Sy'JS such goods, the provisions of this Act -with respect to false trade descriptions certain cases, shall not apply to such trade description when so applied : Provided that where such trade description includes the name of a place or country, and is calculated to mislead as to the place or country where the goods to which it is applied were actually made or produced, and the goods are not actually made or produced in that place or country, this section shall not apply unless there is added to the' trade description, immediately before or after the name of that place or country, in an equally conspicuous manner, with that name, the name of the place or countiy in which the goods were actually made or produced, with a statement that they were made or produced there. 19. — (1.) This Act shall not exempt any person from a,ny action, suit, or Savings, other proceeding which might, but for the provisions of this Act, be brought against him. (2.) Nothing in this Act shaE entitle any person to refuse to make a com- plete discovery, or to answer any question or interrogatory in any action, but sueh discovery or answer shall not be admissible in evidence against such person in aSiy 'pifosefeutibn for an offence agadiist this Act. (3.) Nothing in this Act shall be construed so as to render liable to any prosecution or punishment any servant of a master resident in the United 1178 50 & 61 Vict. cap. 46. False repre- sentation as to Koyal ■Warrant. Application of Act to Scotland, Application of Act to Ireland. 14 & 16 Vict. Bepealof 26&26 Vict. c. 88. Kingdom who bon^ fide acts in obedience to the instructions of such master, and, on demand made by or on behalf of the prosecutor, has given full infor- mation as to his master. 20. Any person who falsely represents that any goods are made by a person holding a royal warrant, or for the service of her Majesty, or any of the Koyal Family, or any Government department, shall be liable, on sum- mary conviction, to a penalty not exceeding twenty pounds. 21. In the application of this Act to Scotland, the following modifications shall be made : — The expression " Summary Jurisdiction Acts" means the Summary Pro- cedure Act, 1864, and any Acts amending the same. The expression "justice" means sheriff. The expression " court of summary jurisdiction" means the Sheriff Court, and aU jurisdiction necessary for the purpose of this Act is hereby con- ferred on sheriffs. 23. In the appUoation of this Act to Ireland the following modifications shall be made: — The expression " Summary Jurisdiction Acts," means, so far as respects the poUoe district of Dublin metropoUs, the Acts regulating the powers and duties of justices of the peace of such district, and as regards the rest of Ireland means the Petty Sessions (Ireland) Act, 1851, and any Act amending the same. The expression "court of summary jurisdiction" means justices acting under those Acts. 23. The Merchandise Marks Act, 1862, is hereby repealed, and any unre- pealed enactment referring to any enactment so repeied shall be construed to apply to the corresponding provision of this Act ; provided that this repeal shall not affect — • (a) Any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment hereby repealed; nor (b) The institution or continuance of any proceeding or other remedy under any enactment so repealed for the recovery of any penalty incurred, or for the punishment of any offence committed, before the commencement of this Act ; nor (c) Any right, privilege, liability, or obligation acquired, accrued, or in- curred under any enactment hereby repealed. Short title. 1 & 2 Will. 4, c. 37. Amplication of principal Act to workman as defined by 38 & 39 Vict, c. 90. Advance of ■wages. 50 & 51 Vict. o. 46. An Act to amend and extend the Lata relating to Truck. I16th Septemler, 1887.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Truck Amendment Act, 1887. The Act of the session of the first and second years of the reign of King William the Fourth, chapter thirty-seven, intituled " An Act to prohibit the payment in certam trades of wages in goods or otherwise than in the current coin of the realm " (in this Act referred to as the principal Act («) ) , may be cited as the Truck Act, 1831, and that Act and this Act may be cited together as the Truck Acts, 1831 and 1887, and shall be construed together as one Act. 2. The provisions of the principal Act shall extend to, apply to, and include any workman as defined in the Employers and 'Workmen Act, 1876, section ten (a), and the expression " artificer" in the principal Act shaU be construed to include every workman to whom the principal Act is extended and apphed by this Act, and all provisions and enactments in the principal Act mconsistent herewith are hereby repealed. 8. Whenever by agreement, custom, or otherwise a workman is entitled to receive in anticipation of the regular period of the payment of his wages an advance as part or on account thereof, it shall not be lawful for the ^- ployer to withhold such ad-rance or maie any deduction in respect of such (it) Supra. Truck Amendment Act-, 1887. 1179 advance on aooount of poundage, diaccunt, or interest, or any similar charge. 4. Nothing in the principal Act or this Act shall render illegal a contract Saraig for with a servant in husbandry for giving him food, drink, not being intoxicat- S®"^*,™ ing, a cottage, or other allowances or privileges in addition to money wages '""™"™T' as a remuneration for his services. 5. In any action brought by a workman for the recovery of his wages, the Order for gooda employer shall not be entitled to any set off or counterclaim in respect of ja a deduction any goods supplied to the workman by any person under any order or direc- mewL^™ tion of the employer, or any agent of the employer, and the employer of a workman or any agent of the employer, or any person supplying goods to the workman under any order or (Urection of such employer or agent, shall not be entitled to sue the workman for or in respect of any goods supplied by such employer or agent, or under such order or direction, as the case majhe. Provided that nothing in this section shall apply to anything excepted by section twenty-three of the principal Act (S). 6. No employer shall, directly or indirectly, by himself or his agent. No contracts impose as a condition, express or implied, in or for the employment of any ''"*'' worlman workman any terms as to the place at which, or the manner in which, or the wages at^My^ person with whom, any wages or portion of wages paid to the workman are particular or is to be expended, and no employer shall by himself or his agent dismiss shop, &o. any workman from his employment for or on account of the place at which, or the manner in which, or the person with whom, any wages or portion of wages paid by the employer to such workman are or is expended or fail to be expended {c). 7. Where any deduction is made by an employer from a workman's wages Deduction for for education, such workman on sending his child to any state-inspected education, school selected by the workman shall be entitled to have the school fees of his child at that school paid by the employer at the same rate and to the same extent as the other workmen from whose wages the like deduction is made by such employer (c). In this section ' ' state-inspected school ' ' means any elementary school inspected under the direction of the Education Dg)artment in England or Scotland or of the Board of National Education in Lreland. 8. No deduction shall be made from a workman's wages for sharpening or Deduction for repairing tools, except by agreement not forming part of the condition of shaTpening hiringjc). *°«^' *«• 9. where deductions are made from the wages of any workmen for the Audit of education of children or in respect of medicine, medical attendance, or tools, deductions, once at least in every year the employer shall, by himself or his agent, make out a correct account of the receipts and expenditure in respect of such deductions, and submit the same to be audited by two auditors appointed by the said workmen, and shall produce to the auditors all such books, vouchers, and documents, and afford iiem all such other facilities as are required for such audit. 10. Where articles are made by a person at his own home, or otherwise, Artificer to be without the employment of any person under him except a member of his own pwd in cash and family, the principal Act (4) and this Act shaU apply as if he were a work- g^Jf™^ °' man, and the shopkeeper, dealer, trader, or other person buying the articles articles made by in the way of trade were his employer, and the provisions of this Act with him. respect to the payment of wages shall apply as if the price of an article were wages earned during the seven days next preceding the date at which any article is received from the workman by the employer. This section sh^ apply o^7 t° articles under the value of five pounds knitted or otherwise manufactured of wool, worsted, yam, stufi, jersey, linen, fustian, cloth, serge, cotton, leather, fur, hem, flax, mohair, or silk, or of any combination thereof, or made or prepared of bone, thread, silk, or cotton lace, or of lace made of any mixed materials. Where it is made to appear to her Majesty the Queen in Council that, in the interests of persons m&ng articles to which this section applies in any county or place in the United Kingdom, it is expedient so to do, it shall be lawful for her Majesty, by Order in Council, to suspend the operation of this section in such county or place, and the same shall accordingly be suspended, either wholly or in (i) See sect. 1, supra. («) See sect. 11, infra. 1180 50 & 51 Vict, cap.' 46. Offences. Fine on person eonmutting offence for ■which employer is liable, and power of employer to exempt himself from penally on con-riction of actual offender.' Eecovery of penalties. Definitions. BisqiiaMcation 0^ justice. part, and either with or 'without any limitations or exceptions, according as is provided by the order. 11. JS any employer or his agent contravenes or fails to comply with any of the foregoing provisions of this Act, such employer or agent, as the case may be, shaU be gxulty of an oflenoe against the principal Act (a), and shall be liable to the penalties imposed by section nine of that Act as if the ofEenoe were such an offence as in that section mentioned. 12.. — (1.) Where an offence for which an employer is, J)y virtue of the principal Act (a) or this Act, liable to a penalty has in fact been committed by some agent of the employer or other person, such agent or other person shall be liable to the same penalty as if he were the employer. (2.) Where an em^oyer is charged with an offence against the principal Act (a) or this Act he shall be entitled, upon information duly laid by him, to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge, and if, after the commission of the offence has been proved the employer proves to the satis- faction of the court that he had used due diligence to enforce the execution of the said Acts, and that the said other person had committed the offence in question without his knowledge, consent, or connivance, the said other person shall be summarily convicted of such offence, and the employer shall be exempt from any penalty. When it is made to appear to the satisfaction of an inspector of factories or mines, or in Scotland a procurator fiscal, at the time of discovering the offence, that the employer had used due diligence to enforce the execution of the said Acts, and also by what person such offence had been committed, and also that it had been committed without the knowledge, consent, or con- nivance of the employer, then the inspector or procurator fiscal shall proceed against the person whom he believes to be the actual offender in the first instance without first proceeding against the employer. 13. — (1.) Any offence against the principal Act {«) or this Act may be pro- secuted, and any penalty therefor recovered in manner provided by the Summary Jurisdiction Acts, so, however, that no penalty shall be imposed on summary conviction exceeding that prescribed by the principal Act for a second offence. (2.) It shall be.the duty of the inspectors of factories and the inspectors of mines to enforce the provisions of the principal Act (a) and this Act within their districts so far as respects factories, workshops, and mines inspected by them respectively, and such inspectors shall for this purpose have the same powers and authorities as they respectively have for the purpose of enforcing the provisions of any Acts relating to factories, workshops, or mines, and all expenses incurred by them under this section shall be defrayed out of moneys provided by Parliament. (3.) In England all penalties recovered under the principal Act (») and this A-ct shall be paid into the receipt of her Majesty's Exchequer, and be carried to the Consolidated Fund. (4.) In Scotland— (a) The procurators fiscal of the sheriff court shall, as part of their official duty, investigate and prosecute offences against the principal Act or this Act, and such prosecution may sdso be instituted in the sheriff court at the instance of any inspector of factories or in- spector of mines ; (b) All offences against the said Acts shall be prosecuted in the sheriff court. 14. In this Act, unless the context otherwise requires, — The expression "Summary Jurisdiction Acts" means, as respects England, the Summary Jurisdiction Acts as defined by the Summary Jurisdiction Act, 1879 ; and, as respects Scotland, means the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, and any Acts amending the same : Other expressions have the same meaning as in the principal Act. 16. So much of the principal Act as disqualifies any justice from acting as such under the principal Act is hereby repealed. A person engaged in the same trade or occupation as an employer charged with an offence against the principal Act or this Act diall not act as a justice of the peace in hearing and determining such charge. (ffl) See sect. 1, supra. Truck Amendment Act, 1887. 1181 16. The pro^ions of the principal Act (5) conferring powers on any over- Amendment of seers or overseer of the poor shall be deemed to confer those powers in the J,*7^ ^ to over- case of England on the guardians of a union, and in the case of Scotland seers'. on the inspectors of the poor. 17. The Acts mentioned in the schedule to this Act are hereby repealed to Uepeal. the extent in the third column of the said schedule mentioned without pre- judice to anything heretofore done or suffered in respect thereof. 18. The principal Act (4), so far as it is not hereby repealed, and this Act Applicatioii of shall extend to Ireland, subject to the following provisions : Acts to Ireland. (l.) Any offence against the principal Act or this Act may be prosecuted and any penalty therefor may be recovered in the manner pro- vided by the Summary Jurisdiction (Ireland) Acts ; (that is to say,) within the Dublin Metropolitan Police District the Acts regulating the powers and duties of justices of the peace and of the police of that district, and elsewhere in Ireland the Petty Sessions (Ireland) Act, 1861, and the Acts amending the same ; (2.) Penalties recovered under the principal Act or this Act shall be applied in the manner directed by the Fines (Ireland) Act, 1851, and the Acts amending the same. SCHEDULE. Session and Chapter. 12 Geo. 1, c. 34. 22 Geo. 2, o. 27. 30 Geo. 2, c. 12. 57Geo. 3, 0. 115. 57 Geo. 3, 0.122. Title of Act. An Act to prevent unlawful combinations of workmen employed in the woollen manufactures, and for better payment of their wages. An Act, the title of which begins with "An Act for the more effectual pre- venting of frauds," and ends with the words "and for the better pay- ment of their wages." An Act, the title of which begins with the words "An Act to amend an Act," and ends with the words "payment of the workmen's wages in any other manner than in money." An Act, the title of which begins with the words "An Act to extend the provisions of an Act," and ends with the words " articles of cutlery." An Act, the title of which begins with the words "An Act to extend the provisions," and ends with the words "extend- ing the provisions of the said Acts to Scotland and Ireland." Section three, and so much of section eight as applies section three. So much of section twelve as applies to any enactment re- pealed by this Act, Sections two and three. Extent of Repeal. The whole Act. The whole Act. (*) See sect. 1, supra. 1182 50 & 51 Vict. CAP. 67. Session and Cliapter. l&2"Win. 4,0.37 Title of Act. An Act to prohibit the payment in certain trades of wages in goods or otherwise than in the current coin of the realm. Extent of Bepeal. Section ten, down to ""be pro- duced to the court and jury" inclusive ; section eleyen, section twelve, sectionfifteen, section sixteen, section eigh- teen, section nineteen, in section twenty the words "or servant in husbandry" ; section twenty-one, section twenty-two, section twenty- four from " and unless the agreement " inclusive to end of section, and section twenty- five from " all workmen " to "purposes aforesaid," both inclusive, and the schedules. Short title. Extent of Act. Commencement of Act. Application of Act. Avoidance of nnjegistered deeds of arrangement. 50 & 51 Vict. c. 57. An Ad to provide for the Registration of Deeds of Arrangement. [16tt September, 1887.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as the Deeds of Arrangement Act, 1887. 2. This Act shall not extend to Scotland. 3. This Act shall, except as in this Act specially provided, come into operation on the first day of January one thousand eight hundred and eighty- eight, which date is in this Act referred to as the commencement of this Act. 4. — (1.) This Act shall apply to every deed of arrangement, as defined in this section, made after the commencement of this Act. (2.) A deed of arrangement to which this Act applies shall include any of the following instruments, whether under seal or not, made by, for, or in respect of the afiairs of a debtor for the benefit of his creditors generally (otherwise than in pursuance of the law for the time beiug in force relating to bankruptcy), that is to say : — (a) An assignment of property ; (b) A deed of or agreement for a composition ; And in cases where creditors of a debtor obtain any control over his property or business : — (c) A deed of' inspectorship entered into for the purpose of carrying on or winding up a business ; (d) A letter of Uoense authorising the debtor or any other person to manage, carry on, realise, or dispose of a business, with a view to the payment of debts ; and (e) Any agreement or instrument entered into for the purpose of carrying on or winding up the debtor's business, or authorising the debtor or any other person to manage, carry on, realise, or dispose of the debtor's business, with a view to the payment of his debts. 6, From and after the commencement of this Act a deed of arrangement to which this Act applies shall be void unless the same shall have been registered under this Act within seven clear days after the first execution Deeds of Arrangement Act, 1887. 1183 thereof by the debtor or any creditor, or if it is executed in any pUce out of England or Ireland respeotively, then within seven clear days after the time at which it would, in the ordinary course of post, arrive in England or Ireland reBpeetivoly, if posted witMn one week after the execution thereof, and unless the same shall bear such ordinary and ad valorem stamp as is under this Act provided. 6. The registration of a deed of arrangement under this Act shall be Mode of effected in the following manner : — registration. (1.) A true copy of the deed, and of every schedule or inventory thereto annexed, or therein referred to, shall be presented to and filed with the registrar within seven clear days after the execution of the said deed (in like manner as a bUl of sale given by way of security for the payment of money is now required to be filed), together with an affidavit verifying the time of execution, and containing a description of the residence and occupation of the debtor, and of the place or places where his business is carried on, and an affidavit by the debtor stating the total estimated amount of property and liabilities included under the deed, the total amount of the composi- tion (if any) payable thereunder, and the names and addresses of his creditors ; (2.) No deed shall be registered under this Act unless the original of such deed, duly stamped with the proper inland revenue duty, and in addition to such duty a stamp denoting a duty computed at the rate of one shilling for every hundred pounds or fraction of a hundred pounds of the sworn value of the property passing, or (where no property passes under the deed) the amount of composition payable under the deed, is produced to the registrar at the time of such registration. t. The registrar shall keep a regfister wherein shall be entered, as soon as Form of register, conveniently may be after the presentation of a deed for registration, an abstract of the contents of every deed of arrangenient registered under this Act, containing the following and any other prescribed particulars : — (a) The date of the deed : (b) The name, address, and description of the debtor, and the place or places where his business is carried on, and the title of the firm or firms under which the debtor carries on business, and the name and address of the trustee (if any) under the deed : (c) A short statement of the nature and effect of the deed, and of the com- position in the pound payable thereunder : fd) The date of registration: . , , , , ^r , , (e) The amount of property and liabilities included under the deed, as estimated by the debtor. . ^ , , ... g (1 ) The registrar of bills of sale in England and Lrelaud respectively Eeijistrar and shall be tiie registrar for the purposes of this Act. ^ ^^ „ , , ^^ ^ ^^ 2?S,'" "P*" (2 ) In England the Bills of Sale Department of the Central Office of the i™™n. Supreme Court of Judicature, and in Ireland the Bills of Sale Office of the Queen's Bench Division of the High Court of Justice, shall be the office for the registration of deeds of arrangement. _ 9 The court or a judge upon being satisfied that the omission to register a Eectiflcation of deed of arrangement within the time required by this Act or that the omission register. or mis-statement of the name, residence, or description of any person was accidental or due to inadvertence, or to some cause beyond the control of the debtor and not imputable to any negligence on his part, ma,y on the applica- tion of any party interested, and on such terms and conditions as are just and expedient, extend the time for such registration, or order such omission or mis-statement tn be supplied or rectified by the msertion in the register of the true name, residence, or description. . 10 When the time for registering a deed of arrangement expires on a Time for regis- Sunday, or other day on which the registration office is closed, the registoa- toataon. tion sh^ll be vaUd if made on the next foUowmg day on which the office " if^'subieot to the provisions of this Act, and to any rules made there- office copies, under, any person shaU be entitled to have an office copy of , or extract from, any deed registered under this Act upon paying for the same at the like rate as for office copies of judgments of the High Court of Justice, and any copy or extract pu^orting to be an office copy or extract shaU, m aU courts 1184 50 •& 51 Vict. cap. 57. Inaction of register and registered deeds. Local registra- tion of copy of Affidavits. Fees. 38 & 39 Vict, c. 77, s. 26. Amendment of 46 & iJ Vict, c. 52, s. 28. Saving as to Bankruptcy Acts. Bules. 40 & 41 Vict, c. 57. Interpretation of terms. and before all arbitrators or other persons, be admitted as piimS facie evi- dence thereof, and of the fact and date of registration as shown thereon. 12. — (I.) Any person shall be entitled, at all reasonable times, to search the register on payment of one shilling, or such other fee as may be prescribed, and subject to such regulations as may be prescribed, and shall be entitled, at all reasonable times, to inspect, examine, and make extracts from any registered deed of arrangement, without being required to make a written application or to specify any particulars in reference thereto, upon payment of one shilling, or such other fee as may be prescribed, for each deed of arrangement inspected. (2.) Provided that the said extracts shall he limited to the dates of execu- tion and of registration, the names, addresses, and descriptions of the debtor and of the parties to the deed, a short statement of the nature and effect of the deed, and any other prescribed particulars. 13. — (1.) When the place of business or residence of the debtor who is one of the parties to a deed of arrangement, or who is referred to therein, is situate in some place outside the London bankruptcy district, as defined by the Bankruptcy Act, 1883, the registrar shall vpithin three dear days after registration, and in accordance with the prescribed directions, transmit a copy of such deed to the registrar of the county court in the district of which such place of business or residence is situate. (2.) Every copy so transmitted shall be filed, kept, and indexed by the registrar of the county court in the prescribed manner, and any person may search, inspect, make extracts from, and obtain copies of, the registered copy, in the like manner and upon the like terms, as to payment or otherwise, as near as may be, as in the case of deeds registered tmder this Act. (3.) This section shall not apply to Ireland. 14. Every affidavit required by or for the purposes of this Act may be sworn before a master of the Supreme Court of Judicature in Englaind or Ireland, or before any person empowered to take affidavits in the Supreme Courts of Judicature of England or Ireland. 15. — (1.) There shall be taken, in respect of the registration of deeds of arrangement, and in respect of any office copies or extracts, or official searches made by the registrar, such fees as may be from time to time prescribed ; and nothing in this Act contained shall maie it obligatory on the registrar to do, or permit to be done, any act in respect of which any fee is specified or pre- scribed, except on payment of such fee. (2.) The twenty -sixth section of the Supreme Court of Judicature Act, 1875, as regards England, and the eighty-fourth section of the Supreme Court of Judicature Act (Ireland), 1877, as regards Ireland, and any enact- ments for the time being in force amending or substituted for those sections respectively shall apply to fees under this Act, and orders imder those sections may, if need be, be made in relation to such fees accordingly. 16. — (1.) The third sub-section, paragraph (g) of the twenty-eighth section of the Bankruptcy Act, 1883, which enacts, amongst other things that one of the facts on proof of which the court shall either refuse an order of dis- charge to a bankrupt, or suspend the operation of the order for a specified time, or grant the bankrupt an order of discharge subject to the eonditiona mentioned in the section, is that the bankrupt has on any previous occasion made a statutory composition or arrangement with his creditors, shall be read and construed witii the word "statutory" omitted therefrom. (2.) This section shall not apply to Ireland. 17. Nothing contained in this Act shall be construed to repeal or shall affect any provision of the law for the time being in force in relation to bankruptcy, or shall give validity to any deed or instrument which by law is an act of bankruptcy, or void or voidable. 18. — (1.) Eules for carrying this Act into effect may be made, revoked, and altered from time to time by the like persons and in the like manner in which rules may be made under and for the purposes of the Supreme Court of Judicature Acts, 1873 to 1884, as regards England, and the Supreme Court of Judicature Act (Ireland), 1877, as regards Ireland. (2.) Such rules as may be required for the purposes of this Act may be made at any time after the passing of this Act. 19. In tms Act, unless the context otherwise requires, — "Court or a judge" means the High Court of Justice and any judge thereof ; Merchant Shipping (Miscelt,aneous) Act, 1887. 1185 " Creditors generally" includes all creditors who may assent or take the benefit of a deed of arrangement ; " Person" includes a body of persons corporate or unincorporate ; ' ' Prescribed ' ' means prescribed by rules to be made under this Act ; "Property" has the same meaning as the same expression has in the Bankruptcy Act, 1883 ; "Rules " includes forms. 50 & 51 Vict. o. 62. An Ad to amend in certain minor particulars acme of the Enactments relating to Merchant Shipping and Seamen. 116th Septemher, 1887.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as fol- lows :^ 1, — (1.) This Act may be cited as the Merchant Shipping (Miscellaneous) Short title and Act, 1887. construction. (2.) This Act shall be construed as one with the Merchant Shipping Act, 18S4, and the Acts amending the same, and this Act and those Acts may be cited collectively as ibhe Merchant Shipping Acts, 1854 to 1887. 2. Whereas by section seven of the Merchant Shipping Act Amendment Fera on exam- Act, 1862, it is provided that the fees payable by appUo^nts for. examination ^^^^^ be for certificates of competency as engineers shall be carried to the account of ptud to the Mercantile Marine Fund, and at the time of the passing of that Act the Mercantile salaries of the surveyors by whom the examinations are .conducted were paid H"^! vS^" out of the Mercantile Marine Fund : c. 63, s. 7. And whereas by section thirty-nine of the Merchant Shipping Act, 1876, g^ ^ ^^ y^^^_ it was provided that the salaries of the said surveyors should be paid out of „. go, b. 39. moneys provided by Parliament, and by section four of the Merchant Ship- ^ ^ ^^ y^^^ ping (Fees and Expenses) Act, 1880, it was provided that the fees paid by the c. 22, s. 4. said applicants for examination for certificates of competency as engineers should be paid into the Exchequer : And whereas under section three of the Merchant Shipping (Expenses) ^5 & 46 Vict. Act, 1882, the salaries of the said surveyors are charged on and paid out of "' '"' ' the Mercantile Marine Fund, and it is expedient that the fees paid by the said applicants for examination should be carried to the account of the Mer- cantile Marine Fund ; be it therefore enacted as follows : Tile fees payable in pursuance of section seven of the Merchant Shipping Act Amendment Act, 1862, shall cease to be payable into the Ex- chequer, and aU such of those fees as have been levied since the first day of AprU one thousand eight hundred and eighty-three, or are hereafter levied, shall be carried to the account of the Mercantile Marine Fund. 8. Whereas doubts have been expressed as to the extent of the powers Exjilanation of conferred by section thirty-one of the Merchant Shipping Act, 1854, on ^J hPJ^' certain colonial authorities, and it is expedient to remove those doubts : Be ^ to powera it therefore enacted that the powers oonf en-ed by that section on the governor, of cofonial lieutenant-governor, or other person administering the government in a governors. British possession shall include and be deemed to have always included the following powers, namely : — . . i . (a.) Power to approve a port or place within the possession for the registry of ships ; and . . •. (h.) Power to appoint surveyors within the limits of the possession to survey and measure ships for registry or re-registry as British ships in accordance with the provisions of the Merchant Shipping Acts, 1854 to 1887. 1186 50 & 51 Vict. cap. 66. Public Record Acts to apply to records in custody of Keglstrar- Oeneral of Explanation of meaning of lighthouses. Bepeal. 4. All dooumenta -which, under section two hundred and seventy- seven of the Merchant Shipping Act, 1854, or any enactment amending the same, are required to be recorded and preserved by the Kegistrar-Greneral of Seamen shall be deemed to be public records and documents ■within the meaning of the Public Record Offices Acts, 1838 and 1877, and those Acts shall, where applicable, apply to such documents in all respects as if such documents had been spenifically referred to in the said Acts. 5. In the Merchant Shipping Act, 1854, and the Acts amending the same, the expression "lighthouses" shall, in addition to the meaning assigned to it by the Merchant Shipping Act, 1854, include sirens and all other descrip- tions of fog signals, and the expression " new lighthouse " shall include the addition to any existing lighthouse of any improved light, or any siren, or any description of fog signal. 6. The enactments mentioned in the Schedule to this Act are hereby repealed to the extent appearing in the third column of that Schedule : Provided that the repeal of any enactment by this Act shall not affect the validity of anything done, or any right acquired or liability incurred, before the comnlencement of this Act under the repealed enactment, and that pro- ceedings for enforcing any such right or liability may he commenced, oop- tinued, and completed as if this Act had not passed. Section 6. SCHEDULE. Session and Chapter. 14&15 Vict. c. 102., 43 & 44 Vict. c. 22 . , Title. The Seamen's Fund Wind- ing-up Act, 1851. The Merchant Shipping (Fees and Expenses) Act, 1880. Extent of repeal. Section forty-eight. Section four. Short title and construction.. Proceedings for discharge of banlirupt under repealed Bank- ruptcy Acts. 32 & 83 Vict, c. 71. 50 & 51 ViOT. C. 66. An Act to amend the Law relating to the discharge of Bankrupts and the closure of Bankruptcy Proceedings. Il6th September, 1887.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. — (1.) This Act may he cited as wie Bankruptcy (Discharge and Closure) Act, 1887. (2.) Expressions used in this Act shall, unless a contrary intention ap- pears, have the same meaning as in the Bankruptcy Act, 1883. 2. — (1.) A debtor who has been adjudged bankrupt, or whose affairs have been liquidated by arrangement under the Bankruptcy Act, 1869, or anv previous Bankruptcy Act, and who has not obtained his discharge, may apply to the court for an order of discharge, and thereupon the court shall appoint a day for hearing the application in open court. (2.) Notice of the appointment by the court of the day for hearing the application for discharge shall twenty-one days at least before the day so appointed be sent by the debtor to each creditor who has proved in the Bankruptcy (Discharge and Closure) Act, 1887. 1187 bankruptcy or liquidation, or to those of them whose addresses appear in the debtor's statement of aflfairs or are known to the debtor, and shall also, fourteen days at least before the day so appointed, be published in the London Gazette. (3.) On the hearing of the application the court may hear any creditor, and majr put such questions to the debtor and receive such evidence as the court thinks fit, and, on being satisfied that the notice required by this section has been duly sent and published, may either grant or refuse the order of discharge or suspend the operation of the order for a specified time, or grant the_ order of discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the debtor, or with respect to his after- acquired property : Provided that the court shall refuse the discharge in all cases where the court is satisfied by evidence that the debtor has committed any misdemeanour under Part Two of the Debtors 82 & 33 Vict. Act, 1869, or any amendment thereof. "^- ^^^ (4.) The court may, as one of the conditions referred to in this section, require the debtor to consent to judgment being entered against him in the court having jurisdiction in the bankruptcy or liquidation by the official receiver of the court, or the trustee or assignee in the bankruptcy or liqui- dation, for any balance of the debts provable under the bankruptcy or liqui- dation which is not satisfied at the date of the discharge, or for such sum as the court shall think fit, but in such case execution shall not be issued on the judgment without the leave of the court, which leave may be given on proof that the debtor has since his discharge acquired property or income available for payment of his debts. (6.) A discharge granted under this section shall have the same effect as if it had been granted in pursuance of the Act under which the debtor was adjudged banfaupt or liquidated his affairs by arrangement. 3. — (1.) Every bankruptcy under the Bankruptcy Act, 1869, which is Proceedings for pending on the thirty-first day of December one thousand eight hundred fllosing bank- and eighty-seven shall, by virtue of this Act, be closed on that day unless Ba^rfptey Act, the court otherwise orders. 1869. (2.) Subject to the provisions of this section, the court'may, on the appli- cation of the trustee under any such bankruptcy, and on being satisfied that there are special circumstances rendering it expedient to postpone the close of the bankruptcy, make an order postponing the close of the bankruptcy until such date as the court may from time to time determine. _ (3.) The order may be made either before or after the said day, but an application imder this section shall not be entertained unless made before the said day. (4.) The trustees shall, before making an application under this section, give notice to the Board of Trade of hisintention to do so, and shall supply the Board with such information as the Board may require as to the position of the bankruptcy, and the court before making an order under this section shall consider any representation which may be made by or on behalf of the Board of Trade with respect thereto. 4.— (1.) In each of the following cases, that is to say : Bi bankruptcies, (a) Any insolvency under any Act for the reUef of insolvent debtors; Sn^mmte" (b) Any commission, fiat, or adjudication in bankruptcy withm the under Acts prior jurisdiction of the old London Bankruptcy Court, under any Act to 1869 in the prior to the Bankruptcy Act, 1869; , , , ,, JScM a^^^'' (c) Any administration by way of arrangement pursuant to an Act ot the ^^^ ^^ ^^ session held in the seventh and eighth years of the reign of Her pointed to supei> Majesty, chapter seventy, entitled "An Act for facilitating sede creditor arrangements between debtors and creditors," or pursuant to the assignee, provisions of the Bankrupt Law Consolidation Act, 1849, or the hundred and ninety-second section of the Bankruptcy Act, 1861, within the jurisdiction of the old London Bankruptcy Court, in which the estate is now vested in a creditors assignee, or trustee, or inspector, either alone or jointly with the official assignee, the court may at any time after the passing of this Act, upon the application of any creditor, and upon being satisfied that there is good ground for remoymg such creditors assignee, trustee, or inspector, or in any other case m which it shaU appear to the court just or expedient, appoint the official assignee, or any person appointed under the one hundred and fifty- third section of the Bank- « & 47 Vict, niptoy Act, 1883, to perform the remaining duties of the office of official c. 52. VOL. IT. — S. ^ ^ 1188 51 & 52 Vict. cap. 25. Provision to release tnistee. Effect of release. Disposal of old books and papers. 40 & 41 Vict, c. 55. Power to make rules and pre- scribe fees. assignee, to be sole assignee, or trustee, or inspector of the estate in the place of such creditors assignee, trustee, or inspector, as the case may be. (2.) Such appointment shall operate as a removal of the creditors assignee, trustee, or inspector of the estate, and shall vest the vrhole of the property of the bankrupt or debtor in the official assignee or person appointed by the Board of Trade as aforesaid alone ; and all estate, rights, powers, and duties of such former creditors assignee, trustee, or inspector shall thereupon vest in and devolve upon the official assignee or person appointed by the Board of Trade as aforesaid alone. 5. An application by a trustee in a bankruptcy under the Bankruptcy Act, 1869, to the comptroller in bankruptcy for a report on his accounts with a view to his release shall not be entertained unless made within twelve months after the close of the bankruptcy. 6. — (1.) Where on the dose of a bankruptcy or liquidation, or on the release of a trustee, a registrar or official receiver or official assignee is or is acting as trustee, and where under section one hundred and fifty-nine, section one hundred and sixty, or section one hundred and sixty-one of the Bankruptcy Act, 1883, an official receiver is or is acting as trustee, no liability shall attach to him personally in respect of any act done or default made or liability incurred by any prior trustee. (2.) Section eighty-two of the Bankruptcy Act, 1883 (which section relates to the release of a trustee), shall, with the exception of sub-section four thereof, apply to an official receiver or official assignee when he is or is acting as trustee, and when an official receiver or official assignee has been released under that section he shall continue to act as trustee for any subsequent purposes of the administration of the debtor's estate, but no liability shaU attach to him personally by reason of his so continuing in respect of any act done, default made, or liability incurred before his release. 7. All books and papers in the custody of an official receiver or official assignee, or of the acting comptroller in bankruptcy, and relating to any bankruptcy under the Bankruptcy Act, 1869, may, on the expiration of one year after the close of the bankruptcy, be disposed of in accordance with rules made under section one of the Public Records Office Act, 1877, and that section shall apply accordingly. 8. — (1.) General rules for carrying into effect the objects of this Act may from time to time be made, revoked, or altered by the same authority and subject to the same provisions as general rules for carrying into effect the objects of the Bankruptcy Act, 1883. (2.) There shall be paid in respect of proceedings under this Act such fees as the Lord Chancellor may, with the sanction of the Treasury, from time to time prescribe, and the Treasury may direct by whom and in what manner the same are to be coUeoted and accounted for, and to what account they are to be paid. Short title and construction. 36 & 37 Vict. c. 4S. 61 & 52 VlOT. C. 25. An Ad for the better regulation of Bailway and Oanal Traffic^ and for other purposes, [lath August, 1888.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Railway and Canal Traffic Act. 1888. This Act shall be construed as one with the Regulation of Railways Act, 1873, and the Acts amending it ; and those Acts and this Act may be cited together as the Railway and Canal Traffic Acts, 1873 and 1888. Eaiuway and Canal Traffic Act, 1888. 1189 PAST I. COTJET AND PbOCEDTJRB OP RilLWAY AND CanAL ComMISSIONEES. Establishment ofHaihoay and Canal Commission. , Ji 0"^ tjie expiration of the provisions of the Eegulation of EaUwaya Act, Establishment 187.5, with respect to the commissioDers therein mentioned, there shall be ofnewHailway established a ney Commission, styled the Railway and Canal Commission (in S5,Sin this Act referred to as the commissioners), and consisting of two appointed ^''™"^^«'"- and three ex officio commissioners ; and such commission shall be a court of record, and have an official seal, which shall be judiciaUy noticed. The commissioners may act notwithstanding any vacancy in their body. 3.— (1.) The two appointed commissioners may be appointed by her Appointment Majesty at any time after the passing of this Act, and from time to time as andtonme of vacancies occur. office of T> *^l '^j^^y shall be appointed on the recommendation of the President of the cJmStoners Board of Trade, and one of them shall be of experience in railway business. (3.) Section five of the Eegulation of Eailways Act, 1873, shall apply to each appointed commissioner. (4.) There shall be paid to each appointed commissioner such salary not exceeding three thousand pounds a year as the President of the Board of Trade may, with the concurrence of the Treasury, determine. (5.) It shall be lawful for the Lord Chancellor, if he think fit, to remove for inability or misbehaviour any appointed commissioner. 4.^jl.) Of the three ex officio commissioners of the Eailway and Canal Appointment Commission one shall be nominated for England, one for Scotland, and one and attendance for Ireland ; and an ex officio commissioner shall not be required to attend commiSoners out of the part of the United Kingdom for which he is nominated. (2.) The ex officio commissioner in each case shall be such judge of a superior court as — (a) in England the Lord Chancellor ; and (b) in Scotland the Lord President of the Court of Session ; and (c) in Ireland the Lord Chancellor of Ireland ; may from time to time by writing under his hand assign, and suo^.i assign- ment shall be made for a period of not less than five years. (3.) For the purpose of the attendance of the ex officio commissioners, regulations shall be made from time to time by the Lord Chancellor, the Lord President of the Court of Session, and the Lord Chancellor of Ireland respectively, in communication with the ex officio commissioners for England, Scotland, or Ireland, as the case may be, as to the arrangements for securing their attendance, as to the times and place of sitting in each case, and other- wise for the convenient and speedy hearing thereof. S. — (1.) Subject to the provisions of this Act, and to general rules under Sittings of this Act, the commissioners may hold sittings in any part of the United commissioners. Kingdom, in such place or places as may be most convenient for the deter- mination of proceedings before them. (2.) The central office of the commissioners shall be in Loudon, and the commissioners when holding a public sitting in London shall hold the same at the Eoyal Courts of Justice, or at such other place as the Lord Chancellor may from time to time appoint. (3.) Not less than three commissioners shall attend at the hearing of any case, and the ex officio commissioner shall preside, and his opinion upon any question which in the opinion of the commissioners is a question of law shall prevail. (4.) Save as aforesaid, section twenty-seven of the Regulation of Eailways 86 & 37 Vict. Act, 1873, shall apply, and any act may be done by any two commissioners, e. 48. (6.) Every judge who may with his consent be assigned to hold the office of ex officio commissioner shall attend to hear any cases before the commis- sion, which as ex officio commissioner he is required to hear, when and as soon as the cases are ready to be heard, or as soon thereafter as reasonably may be ; and any such judge shall be required to perform any of the other duties of a judge of a superior court only when his attendance on the com- mission is not required. (6.) If and when any judge who may be assigned to hold the office of ex officio commissioner is. temporarily unable to attend, the Lord Chancellor 4i2 1190 51 & 52 YicT. CAP. 25. Appointment of adoUtional judge. Provision for complaints by| pubUc authority in certain cases. in England, the Lord President of the Court of Session in Scotland, and the Lord Chancellor in Ireland, may respfeotively nominate any judge of a superior court to sit as ex ofacio commissioner in place of the judge who is so temporarily unable to attend as aforesaid, and the judge so nominated shall for the purpose of any case which he may hear be an ex ofBcio com- missioner. ,...,. 3 .i1 J! It . (7.) If the President of the Board of Trade is satisfied either of the in- ability of an appointed commissioner to attend at the hearing of any case, or of there being a yacanoy in the office, and in either case of the necessity of a speedy hearing of the case, he may appoint a temporary commissioner to hear such case, and such commissioner, for alL purposes connected with such case, shall, until the final determination thereof, have the same jurisdiction and powers as if he were an appointed commissioner. A temporary commissioner shall be paid such sum by the commissioner so unable to sit, or, if the office is vacant, out of the salary of the office, as the President of the Board of Trade may assign. . 6. On an address from both Houses of Parliament representing that, regard being had to the duties imposed by this Act on the ex officio commis- sioners, the state of business of the High Court in England requires the appointment of an additional judge of that court, it shall be lawful for_ heif Majesty to appoint an additional judge of such court, and from time to time, on a like address but not otherwise, to fill any vacancy in such judgeship, and the law relating to the appointment and qualification of the judges of such superior court, to their duties and tenure of office, to their precedence, salary and pension, and otherwise, shall apply to any judge so appointed under this section, and a judge so appointed under this section shall he attached to such division or branch of the court as her Majesty may direct, subject to such power of transfer as may exist in the case of any other judge of such division or branch. 7. — (1.) Any of the following authorities, that is to say — (a) any of the following local authorities, namely, any harbour board, or oor-.=>erTancy authority, the common council of the city of London, any council of a city or borough, any representative county body which may be created by an Act passed in the present or any future session of Parliament, any justices in quarter sessions assembled, the commissioners of supply of any county in Scotland, the Metro- politan Board of Works, or any urban sanitary authority not being a council as aforesaid, or any rural sanitary authority ; or (b) any such association of traders or freighters, or chamber of commerce or agriculture as may obtain a certificate from the Board of Trade that it is, in the opinion of the Board of Trade, a proper body to make such complaint, may make to the commissioners any complaint which the commissoners have jurisdiction to determine, and may do so without proof that such authority is aggrieved by the matter complained of, and any of such authorities may appear in opposition to any complaint which the commissioners have juris- diction to determine in any case where such authority, or the persons repre- sented by them, appear to the commissioners to be likely to be affected by any determination of the commissioners upon such complaint. (2.) The Board of Trade may, if they think fit, require, as a condition of giving a certificate under this section, that security be given in such manner and to such amount as they think necessary for any costs which the com- plainants may be ordered to pay or bear. (3.) Any certificate granted under this section shall, unless withdravra, be in force for twelve months from the date on which it was given. Jurisdiction. Jurisdiction of 8. There shall be transferred to and vested in the commissioners all the Bailway Com- jurisdiction and powers which at the commencement of this Act were vested taaSe'md to ™' °'^ capable of being exercised by the EaUway Commissioners, whether the Commission, under the Regulation of Railways Act, 1873, or any other Act, or other.. wise, and any reference to the Railway Commissioners in the Regulation of Railways Act, 1873, or in any other Act, or in any document, shall, from and after the commencement of this Act, be construed to refer to the Rail- way and Canal Commission established by this Act. Railway and Canal Traffic Act, 1888. 1191 9. Where any enactment in a special Act — Jurisdiction of (a) contains provisions relating to traffic facilities, undue preference, or oommissioneiB other matters mentioned in section two of the Kailway and Canal ^^^^"'"■' Traffic Act, 1854 (a), or ir ft'lSTiot. (b) requires a company to which this part of this Act applies to provide "■ ^l- any station, road, or other similar work for public accommodation, or (c) otherwise imposes on a company to which this part of this Act applies any obligation in favour of the publio or any individual, or where any Act contains provisions relating to private branch railways or private sidings, the commissioners shall have the like jurisdiction to hear and determine a complaint of a contravention of the enactment as the conmiis- sioners have to hear and determine a complaint of a contravention of section two of the Railway and Canal Traffic Act, 1854, as amended by subsequent Acts. H. Where any question or dispute arises, involving the legality of any toll, Jurisdiction rate, or charge, or portion of a toll, rate, or charge, charged or sought to be "^'^r tolls and charged for merchandise traffic by a company to which this part of this Act ™*^- applies, the commissioners shall have jurisdiction to hear and determine the same, and to enforce payment of such toll, rate, or charge, or so much thereof as the commissioners decide to be legal. 11. Nothing in any agreement, whether made before or after the passing Jurisdiction to of this Act, which has not been confirmed by Act or by the Board of Trade, "li.^ traffic or by the commissioners under the Regulation of Railways Act, 1873, or this ^thstem'toe Act, shall render a company to which this part of this Act applies unable to agreements, afford, or shall authorise such company to refuse, such reasonable facilities for traffic as may in the opinion of the commissioners be required in the interests of the public, or shall prevent the commissioners from making or enforcing any order with respect to such facilities. 12. Where the commissioners have jurisdiction to hear and determine any Power to award matter, they may, in addition to or in substitution for any other relief, award damages. to any complaining party who is aggrieved such damages as they find him to have sustained ; and such award of damages shall be in complete satisfaction of any claim for damages, including repayment of overcharges, which, but for this Act, such party would, have had by reason of the matter of complaint. Provided that such damages shall not be awarded unless complaint has been made to the commissioners within one year from the discovery by the party aggrieved of the matter complained of. The commissioners may ascertain the amount of such damages either by trial before themselves, or by directing an inquiry to be taken before one or more of themselves or Ijefore some officer of their court. 13. In cases of complaint of undue preference no damages shall be awarded No damages if the commissioners shall find that the rates complained of have, for the '"^^^^ period during which such rates have been in operation, been duly published c^^con™ in the rate books of the railway company kept at their stations in accordance ditions. with section fourteen of the Regulation of Railways Act, 1873, as amended by this Act, unless and xmtil the party complaining shall have given written notice to the railway company requiring them to abstain from or remedy the matter of complaint, and the railway company shall have failed, within a reasonable time, to comply with such requirements in such a manner as the commissioners shall think reasonable. 14. The commissioners may order two or more companies to which this Orders on two or part of this Act applies to carry into effect an order of the commissioners, and '^^ companies, to make mutual arrangements for that purpose, and may further order the companies or, in case of difference, any of them, to submit to the commis- sioners for approval a scheme for carrying into effect the order, and when the commissioners have finally approved the scheme, they may order each of the companies to do all that is necessary on the part and within the power of such company to cany into effect the scheme, and may determine the proportions in which the respective companies are to defray the expense of so doing, and may for the above purposes make, if they think fit, separate orders on any one or more of such companies. [a) Supra. 1192 51 & 52 YioT. cAr. 25. Amendment of 36 & 37 Vict, c. 48, 5. 8, as to references to arbitration. Power to ap- portion expenses between railway company and applicants for works. Provided that nothing in this section shall authorise the oomraisBioners to require two companies to do anything which they would not have jurisdic- tion to require to be done if such two companies were a single company. 16. For the purposes of section eight of the Regulation of Railways Act, 1873, and any other enactment relating to the reference to the Railway Com- mission of any difference between companies which under the provisions of any general or special Act is required or authorised to be referred to arbitra- tion, the provisions of any agreement confirmed or authorised by any such Act shall be deemed to be provisions of such Act. 16. — (1.) "Where the Board of Trade or the commissioners, in the exercise of any power given by any general or special Act, on application order a company to which this part of this Act applies, to provide a bridge, subway, or approach, or any work of a similar character, the Board of Trade or the Commissioners, as the case may be, may require as a condition of making the order that an agreement to pay the whole or a portion of the expenses of complying with the order shall be entered iuto by the applicants or some of them, or such other persons as the Board of Trade or commissioners think fit, and any of the following local authorities, namely, any sanitary autho- rity, highway board, surveyor of highways acting with the consent of the vestry of his parish, or any other authority having power to levy rates, shall have power, if such authority think fit, to enter into any such agreement as is sanctioned by the Board of Trade or commissioners for the purpose of the order. (2.) In such case any question respecting the persons by whom or the proportions in which the expenses of complying with the order are to be defrayed may, on the application of any party to the application, or on a certificate of the Board of Trade, be determined by the commissioners. (3.) In this section the expression "parish" shall have the same meaning as the same expression has in the Acts relating to highways; and the ex- pression " the consent of the vestry of his pariah." shall, in any ^lace where there is no vestry meeting, mean the consent of a meeting of inhabitants contributing to lite highway rates, provided that the same notice shaU have been given of such a meeting as would be required by law for the assembling of a meeting in vestry. Appeals on 17. — (1.) No appeal shall lie from the commissioners upon a question of ti^Mto^supecior ^^^' *"" ^^°^ ^^^ question regarding the locus standi of a complainant, court of appeal. (2.) Save as otherwise provided by this Act, an appeal shall lie from the commissioners to a Superior Court of Appeal. (3.) An appeal shall not be brought except in conformity with such rules of court as may from time to time be made in relation to such appeals by the authority having power to make rules of court for the Superior Court of Appeal. (4.) On the hearing of an appeal the Court of Appeal may draw aU such inferences as are not inconsistent with the facts expressly found, and are necessary for determining the question of law, and shall have all such powers for that purpose as if the appeal were an appeal from a judgment of a Superior Court, and may make any order which the commissioners could have made, and also any such further or other order as may be just, and the costs of and incidental to an appeal shall be in the'discretion of the Court of Appeal, but no commissioner shall be liable to any costs by reason or in respect of any appeal. (5.) The decision of the Superior Court of Appeal shall be final; provided that where there- has been a difference of opinion between any two of such Superior Courts of Appeal, any Superior Court of Appeal in which a matter affected by such difference of opinion is pending may give leave to appeal to the House of Lords, on such terms as to costs as such court shall determine. (6.) Save as pro'\'ided by this Act, an order or proceeding of the com- missioners shall not be questioned or reviewed, and shall not be restrained or removed by prohibition, injunction, certiorari, or otherwise, either at the instance of the Crown or otherwise. Supplemental. Gener^ powers 18. — (1.) For the purposes of this Act the commissioners shall have fuU rf ordS?™ jurisdiction to hear and determine all matters whether of law or of fact, and Eailway and Canal Traffic Act, 1888. 1193 shall as respects the attendance and examination of witnesses, the prodiiotion and inspection of documents, the enforcement of their orders, the entry on and inspection of property, and other matters necessary or proper for the due exercise of their jurisdiction under this Act, or otherwise for carrying this Act into effect, have all such powers, rights, and privileges as are vested in a Superior Court : provided that no person shall be punished for contempt of court, except with the consent of an ex officio commissioner. (2.) The commissioners majr review and rescind or vary any order made hy them ; but, save as is by this Act provided, every decision or order of the commissioners shall be final. 19. The costs of and incidental to every proceeding before the com- q^ t. missioners shall be in the discretion of the commissioners, who may order by " ' whom and to whom the same are to be paid, and by whom the same are to be taxed and allowed. 30.— (1.) The commissioners may from time to time, with the approval Power to make of the Lord Chancellor and the President of the Board of Trade, make, rules, rescind, and vary general rules for their procedure and practice under this Act, and generally for carrying into effect this part of this Act. (2.) All rules made under this section shall be laid before Parliament within three weeks after they are made, if Parliament is then sitting, and if Parliament is not then sitting within three weeks after the beginning of the then next session of Parliament, and shall be judicially noticed, and shall have effect as if they were enacted by this Act. 21. — (1.) There shall be attached to the Eailway and Canal Commission such Appointment of officers, clerks, and messengers as the Lord Chancellor, with the consent of officers, clerks, the Treasury as to number, from time to time appoints. *°- (2.) There shall be paid to each of such officers, clerks, and messengers, such salaries as the Treasury from time to time determine. 22. The salaries of the appointed commissioners, and of all officers, clerks, Salaries, and messengers attached to the Eailway and Canal Commission, and all the expenses, &c. expenses of the said commission of and incidental to the carrying out of this Act, shall be paid out of moneys to be provided by ParUameut. 28. This part of this Act shall apply to any railway company, and to any cJompany to canal company, and to any railway and canal company, whicn Faxt I. PAET II. TEArno. 24. — (1.) Notwithstanding any provision in any general or special Act, Revised classifl- every raEway company shall submit to the Board of Trade a revised classifi- cation of traffic cation of merchandise traffic, and a revised schedule of maximum rates and *".* schedule of charges applicable thereto, proposed to be charged by such railway company, "^ ^' and shall fully state in such classification and schedule the nature and amounts of all terminal charges proposed to be authorised in respect of each class of traffic, and the circumstances under which such terminal charges are proposed to be made. In the determination of the terminal charges of any railway company regard shall be had only to the expenditure reasonably necessary to provide the accommodation in respect of whioh such charges are made, irrespective of the outlay which may have been actually incurred by the railway company in provi(&g that accommodation. (2.) The classification and schedule shall be submitted within six months from the passing of this Act, or such further tiine as the Board of Trade may, in any particular case, permit, and shall be published in such manner as the Board of Trade may direct. (3.) The Board of Trade shall consider the classification and schedule, and any objections thereto, whioh may be lodged with them on or before the pregeribed time and in the prescribed manner, and shall communicate with the railway company and the persons (if any) who have lodged objections, for the purpose of arranging the differences which may have arisen. (4.) If, after hearing all parties whom the Board of Trade consider to be 1194 61 & 52 Vicr. cap. 25. entitled to be heard before them respecting the olaBsifioation and schedule, the Board of Trade come to an agreement with the railway company as to the classification and schedule, they shall embody the agreed classification and schedule in a Provisional Order, and shall make a report thereon, to be submitted to Parliament, containing such observations as they think fit in relation to the agreed classification and schedule. (5.) When any agreed classification and schedule have been embodied in a Provisional Order, the Board of Trade, as soon as they conveniently can after the making of the Provisional Order (of which the railway company shall be deemed to be the promoters), shall procure a BiU to be intro- duced into either House of Parliament for an Act to confirm the Pro- visional Order, which shall be set out at length in the schedule to the Bill. (6.) In any case in which a railway company fails within the time mentioned in this section to submit a classification and schedule to the Board of Trade, and also in every case in which a railway company has submitted to the Board of Trade a classification and schedule, and after hearing all parties whom the Board of Trade consider to be entitled to be heard before them, the Board of Trade are unable to come to an agreement with the railway company as to the railway company's classification and schedule, the Board of Trade shaU determine the classification of traffic which, in the opinion of the Board of Trade, ought to be adopted by the railway company, and the schedule of maximum rates and charges, including all terminal charges proposed to be authorised applicable to such classification which would, in the opinion of the Board of Trade, be just and reasonable, and shall make a report, to be submitted to Parliament, containing such observa- tions as they may think fit in relation to the said classification and schedule, and calling attention to the points therein on which differences which have arisen have not been arranged. (7.) After thfe commencement of the session of Parliament next after that in which the said report of the Board of Trade has been submitted to Par- liament, the railway company may apply to the Board of Trade to submit to Parliament the question of the classification and schedule which ought to be adopted by the railway company, and the Board of Trade shaJl on such application, and in any case may, embody in a Provisional Order such classi- fication and schedule as in the opinion of the Board of Trade ought to be adopted by the railway company, and procure a BiU to be introduced into either House of Parliament for an Act to confirm the Provisional Order, which shall be set out at length in the schedule to the BUI. (8.) If, while any BUI to confirm a Provisional Order made by the Board of Trade under this section is pending in either House of Parliament, a peti- tion is presented against the Bill or any classification and schedule comprised therein, the BUI, so far as it relates to the matter petitioned against, shall be referred to a Select Committee, or it the two Houses of Parliament thick fit so to order, to a joint committee of such Houses, and the petitioner shall be allowed to appear and oppose as ia the case of a private BUI. (9.) In preparing, revising, and settUng the classifications and schedules of rates and charges, the Board of Trade may consult and employ such skUled persons as they may deem necessary or desirable ; and they may pay to such persons such remuneration as they may think fit and as the Treasury may approve. (10.) The Act of Parliament confirming any Provisional Order made under this section shall be a public general Act, and the rates and charges mentioned in a Provisional Order as confirmed by such Act shall, from and after the Act coming into operation, be the rates and charges which the raUway company shall be entitled to charge and make. (11.) At anytime after the confirmation of any Provisional Order under this section any railway company may, and any person, upon giving not less than twenty-one days notice to the raUway company may, apply in the prescribed manner to the Board of Trade to amend any classification and •schedule by adding thereto any articles, matters, or things, and the Board of Trade may hear and determine such application, and classify and deal with the articles, matters, or things referred to therein in such manner as the Board of Trade shall think right. Every determination of the Board of Trade under this sub-section shall forthvpitti be published in the " London Gazette," and shaU take effect as from the date of the publication thereof . (12.) Nothing in this section shall apply to any remuneration payable by Bailway AXB Canal Tkakfic Act, 1888. 1195 the Postmaster- General to any railway company for the conveyance of mails, letter bags, or parcels under any general or special Act relating to the con- veyance of mails, or under the Post OfBoe (Parcels) Act, 1882. 45 & 46 Vict. (13.) Nothing in this section shall apply to any remuneration payable by "■''*■ the Secretary of State for War to any railway company for the conveyance of War Office stores under the powers conferred by the Cheap Trains Act, 1883. 46 & 47 Vict. 26. Whereas by section two of the Railway and Canal TrafBc Act, 1854 (a), o. 84. it is enacted that every railway company and canal company, and railway Provisions as to and canal company shall, according to their respective powers, afford all through traffic, reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles ; and that no such company shaU make or give any undue or unreasonable preference or advantage to or in favour of any particular per- son or company, or any particular description of traffic, in any respect what- soever, or shall subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; and that every railway company and canal com- pany and railway and canal company having or working railways or canals which form part of a continuous line of railway, or canal or railway and canal communication, or which have the terminus station or wharf of the one near the terminus station or wharf of the other, shall afford aU due and reasonable facilities for receiving and forwarding by one of snoh railways or canals all the traffic arriving by the other, without any imreasonable delay, and without any such preference or advantage or prejudice or dis- advantage as aforesaid, and so that no obstruction may be offered to the pubho desirous of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommoda- tion may by means of the railways and canals of the several companies be at all times afforded to the public in that behalf : And whereas it is expedient to explain and amend the said enactment : Be it therefore enacted, that — Subject as hereinafter mentioned, the said facilities to be so afforded are hereby declared to and shaU include the due and reasonable receiving, forwarding, and delivering by every railway company and canal company and railway and canal company, at the request of any other such com- pany, of through traffic to and from the railway or canal of any other such company at through rates, toUs, or fares (in this Act referred to as through rates) ; and also the due and reasonable receiving, forwarding, and delivering by every railway company and canal company and rail- way and canal company, at the request of any person interested in through traffic, of such traffic at through rates : Provided that no appK- oation shall be made to the commissioners by such person until he has made a complaint to the Board of Trade under the provisions of this Act as to complaints to the Board of Trade of unreasonable charges, and the Board of Trade have heard the complaint in the manner herein provided. Provided as follows : (1.) The company or person requiring the traffic to be forwarded shall give written notice of the proposed through rate to each forwarding company, stating both its amount and the route by which the traffic is proposed to be forwarded ; and when a company gives such notice it shall also state the apportionment of (3ie through rate. The proposed through rate may be per truck or per ton : (2.) Each forwarding company shall, within ten days, or such longerperiod as the commissioners may from time to time by general order prescribe, after the receipt of such notice, by written notice inform the company or persons requiring the traffic to be forwarded, whether they agree to the rate and route ; and if they object to either, the grounds of the objection : (3.) If at the expiration of the prescribed period no such objection has been sent by any forwar(fing company, the rate shall come into operation at such expiration : ' (4.) If an objection to the rate or route has been sent within the (fl) Sapra, 1196 51 & 52 YicT. CAP. 25. Powei-s of comiuissioners as to through rates. Undue prefer- ence in case of unequal tolls, rates, and charges, and unequal services performed. prescribed period, the matter shall be referred to the commissioners for their decision : (6.) If an objection be made to the granting of the rate or to the route, the commissioners shall consider whether the granting of a rate is a due and reasonable facility in the interest of the pubUo, and whether, having regard to the circumstances, the route proposed is a reason- able route, and shall allow or refuse the rate accordingly, or fix such other rate as may seem to the commissioners just and reasonable : (6.) Where, upon the applioation of a person requiring traffic to be for- warded, a through rate is agreed to by the forwarding companies, or is made by order of the commissioners, the apportionment of such through rate, if not agreed upon between the forwarding companies, shall be determined by the commissioners : (7.) If the objection be only to the apportionment of the rate, the rate shall come into operation at the expiration of the prescribed period, but the decision of the commissioners, as to its apportionment, shall be retrospective ; in any other case the operation of the rate shall be suspended until the decision is given : (8.) The commissioners, in apportioning the through rate, shaU take into consideration all the circumstances of the case, including any special expense incurred in respect of the construction, maintenance, or working of the route, or any part of the route, as well as any special charges which any company may have been entitled to make iu respect thereof : (9.) It shaU not be lawful for the commissioners in any case to compel any company to accept lower mileage rates than the mileage rates which such company may for the time being legally be charging for Uke traffic carried by a like mode of transit on any other line of com- munication between the same points, being the points of departure and arrival of the through route. Where a railway company or canal company use, maintain, or work, or are party to an arrangement for using, maintaining, or working steam vessels for the purpose Of carrying on a communication between any towns or ports, the provisions of this section shall extend to such steam vessels, and to the traffic carried thereby. When any company, upon written notice being given as aforesaid, refuses or neglects without reason to agree to the proposed through rates, or to the route, or to the apportionment, the commissioners, if an order is made by them upon an application for through rates, may order the respondent company or companies to pay such costs to the applicants as they think fit. 26. Subject to the provisions in the last precei£ng section contained, the commissioners shall have full power to decide that any proposed through rate is just and reasonable, notwithstanding that a less amount may be allotted to any forwarding company out of such through rate than the maximum rate such company is entitled to charge, and to- allow and apportion such through rate accordingly. 27. — (1.) Whenever it is shown that any railway company charge one trader or class of traders, or the traders in any district, lower toUs, rates, or charges for the same or similar merchandise, or lower tolls, rates, or charges for the same or similar services, than they charge to other traders, or classes of traders, or to the traders in another district, or make any difference in treatment in respect of any such trader or traders, the burden of proving that such lower charge or difference in treatment does not amount to an undue preference shall He on the railway company. (2.) In deciding whether a lower charge or difference in treatment does, or does not amount to an undue preference, the court having jurisdiction in the matter, or the commissioners, as the case may be, may, so far as they think reasonable, in addition to any other considerations affecting the case, take into consideration whether such lower charge or difference in treatment is necessary for the purpose of securing iu the interests of the public the traffic in respect of which it is made, and whether the inequality cannot be removed without unduly reducing the rates charged to the complainant: Provided that no railway company shall make, nor shall the court, or the commissioners, sanction any difference in the tolls, rates, or charges made for, or any difference in the treatment of, home and foreign merchandise, in respect of the same or similar seryices. Eailway and Canal Tkaffio Act, 1888. 1 197 (3.) The court or the oommisaiouers shall have power to direct that no higher charge shall be made to any person for services in respect of merchandise carried over a less distance than is made to any other person for similar services in respect of the Uke description and quantity of merchandise carried over a greater distance on the same line of railway. 28. The provisions of section two of the Eailway and Canal Traffic Act, Extension of 1854 (a), and. of section fourteen of the Regulation of Railways Act, 1873 (i), enactments as to and of any enactments amending and extending those enactments, shall apply eno^'to^Kood^ to traffic by sea in any vessels belonging to or chartered or worked by any carried by sea. railway company, or in which any railway company procures merchandise to be carried, in the same manner and to the like extent as they apply to the land traffic of a railway company. 29. — (1.) Notwithstanding any provision in any general or special Act, it Hroup rates to shall be lawful for any railway company, for the purpose of fixing the rates J^ chargeable to be charged for the carriage of merchandise to and from any place on their comp^es. railway, to group together any number of places in the same district, situated at various distances' from any point of destination or departure of merohftudlse, and to charge a uniform rate or uniform rates of carriage for merchandise to and from all places comprised in the group from and to any point of destination or departure. (2.) Provided that the distances shall not be unreasonable, and that the group rates charged and the places grouped together shall not be such as to create an undue preference. (3.) Where any group rate exists or is proposed, and in any case where there is a doubt whether any rates charged or proposed to be charged by a railway company may not be a contravention of section two of the Railway and Canal TVaffio Act, 1854, and any Acts amending the same, the railway company may, upon giving notice in the prescribed manner, apply to the commissioners, and the commissioners may, after hearing the parties interested and any of the authorities mentioned in section seven of this Act, determine whether such group rate or any rate charged or proposed to be charged as aforesaid does or does not create an undue preference. Any persons aggrieved, and any of the authorities mentioned in section seven of this Act, may, at any time after the making of any order under this section, apply to the commissioners to vary or rescind the order, and the conmiis- sioners, after hearing all parties who are interested, may make an order accordingly. 30. Any port or harbour authority or dock company which shall have Powei' to dock reason to believe that any railway company is by its rates or otherwise companies and placing their port, harbour, or dock, at an undue disadvantage as compared ^^g^iaSfof* with any other port, harbour, or dock to or from which traffic is or may be undue prefer- oarried by means of the lines of the said railway company, either alone or in ence. conjunction with those of other railway companies, may make complaint thereof to the commissioners, who shall have the like jurisdiction to hear and determine the subject-matter of such complaint as they have to hear and determine a complaint of a contravention of section two of the Railway and Canal Traffic Act, 1854, as amended by subsequent Acts. 81, — (1.) "Whenever any person receiving or sending or desiring to send Ctomplaints to goods by any railway is of opinion that the railway company is charging Board of Trade him an unfair or an unreasonable rate of charge, or is in any other respect "hM^^y rail, ti-eating him in an oppressive or imreasonable manner, such person may way companies'.' complain to the Board of Trade. (2.) The Board of Trade, if they think that there is reasonable ground for the complaint, may thereupon call upon the railway company for an explanation, and endeavour to settle amicably the differences between the complainant and the railway company. (3.) For the purpose aforesaid, the Board of Trade may appoint either one of their own officers or any other competent person to communicate with the complainant and the railway company, and to receive and consider such explanations and communications as may be made in reference to the com- plaint i and the Board of Trade may pay to such last-mentioned person such remuneration as they may think fit, and as may be approved by the Treasury. (4.) The Board of Trade shall from time to time submit to Parliament (ff) iittpra. (*) Supra. 1198 61 & 52 Vict. cap. 25. Annual returns by railway companies to contain such statistics as the Board of Trade shall require. 31 & 35 Tict. c. 78, s. 9. 36 & 37 Vict. c. 76. Classification table to be open for inspection. Copies to be sold. 36 & 37 Vict c. 48. reports of the complaints made to them under the provisions of this section, and the restdts of the proceedings taken in relation to euoh complaints, together with such observations thereon as the Board of Trade shall think fit. (5.) A complaint under this section may he made to the Board of Trade by any of the authorities mentioned in section seven of this Act, in any case in which, in the opinion of any of such authorities, they or any traders or persons in their district are being charged unfair or unreasonable rates by a railway company ; and all the provisions of this section shall apply to a complaint so made as if the same had been made by a person entitled to make a complaint under this section. 32. (1.) The returns required of a railway company under section nine of the Railways Kegulation Act, 1871, shall include such statements as the Board of Trade may from time to time prescribe, and the forms referred to in that section may from time to time be altered by the Board of Trade in such manner as they think expedient for giving effect to this section, and the said section nine of the Railways Regulation Act, 1871, shall apply accordingly. (2.) The Board of Trade may from time to time alter the times fixed by the said Act or by the Railways Regulation Act (Returns of Signal Arrange- ments, Workings, &c.), 1873, for the forwarding of any of the returns required by the said Act or this Act. 33 — (1.) The book, tables, or other dooumentin use for the time being containing the general classification of merchandise carried on the railway of any company, shall, during all reasonable hours, be open to the inspection of any person without the payment of any fee at every station at which merchandise is received for conveyance, or where merchandise is received at some other place than a station then at the station nearest such place, and the said book, tables, or other document as revised from time to time shall be kept on sale at the principal office of the company at a price not exceeding one shilling. (2.) Printed copies of the classification of merchandise traffic, and schedule of maximum tolls, rates, and charges of every railway company authorised, as provided by this Act, shall be kept for sale by the railway company at such places and at such reasonable price as the Board of Trade may by any general or special order prescribe. (3.) The company shall within one week after application in writing made to the secretary of any railway company by any person interested in the carriage of any merchandise which has been or is intended to be carried over the railway of such company, render an account to the person so applying in which the charge made or claimed by the company for the carriage of such merchandise shall be divided, and the charge for conveyance over the railway shall be distinguished from the terminal charges (if any), and from the dock charges (if any), and if any terminal charge or dock charge is included in such account the nature and detail of the terminal expenses or dock charges in respect of which it is made shall be specified. (4. ) Every railway company shall publish at every station at which mer- chandise is received for conveyance, or where merchandise is received at some other place than a station then at the station nearest to such place, a notice, in such form as may be from time to time prescribed by the Board of Trade, to the ejSect that such book, tables, and document touching the classification of merchandise and the rates as they are required by this section and section fourteen of the Regulation of Railways Act, 1873, to keep at that station, are open to public inspection, and that information as to any charge can he obtained by application to the secretary or other officer at the address stated in such noiioe. (5.) Where a railway company carries merchandise partly by land and partly by sea, aU the books, tables, and documents, touching the rates of charge of the railway company, which are kept by the railway company at any port in the United Kingdom used by the vessels which carry the sea traffic of the railway company, shall, besides containing all the rates charged for the sea traffic, state what proportion of any through rate is appropriated to convey- ance by sea, distinguishing such proportion from that which is appropriated to the conveyance by land on either side of the sea. (6.) Where a railway company intend to make any increa. ™''l'^^i'>'^ " 1 Apothecaries : Bach weight from 10 oz. to 1 oz., inclusive 2 „ „ „ 4 drachms to ^ grain, inclusive 1 Measures. XiOngth : Each measure from 100 feet to 7 feet, inclusive 3 ,, 6 feet to 4 feet, inclusive 2 " ", of a yard, 2 feet, foot, and inch respectively, includ- ing their subdivisions 1 Measures from 0-500 to 0-001 inch, in the form of wire-gauge plates : . For each notch, or for each internal gauge or separate size, from half an inch to rifffBth of an inch OJ Section 13. 1212 52 & 53 Vict. cap. 21. Capacity: Diy and liquid measures : a. d. Each measure of 4 bushels (32 gallons] and 1 bushel (8 gallons) . . 6 „ „ from 5 gallons to 2 gallons (peck), inclusive .... 3 „ ,, „ 1 gallon to a J gill, inclusive 1 Apothecaries : Each subdivided measure containing : Not more than twelve subdivisions 1 More than twelve subdivisions but not more than fifteen IJ More than fifteen subdivisions but not more than eighteen .... l| More than eighteen subdivisions but not more than twenty-one IJ More than twenty-one subdivisions but not more than twenty- four 2 More than twenty-four subdivisions but not more than thirty . . 2J More than thirty subdivisions but not more than thirty-six .... 3 More than thirty- six subdivisions but not more than forty- two. . 3 J More than forty- two subdivisions but not more than fifty i More than fifty subdivisions but not more than one hundred . . 6 More than one hundred subdivisions but not more than one hundred and fifty 9 More than one hundred and fifty 1 o Each separate measure from 40 fluid oz. to 10 fluid oz., inclusive. . 2 „ 1, ,> „ 10 fluid oz OJ Weighing Instruments. For 10 tons and above 10 Por under 10 tons and above 1 ton 5 For 1 ton and above 5 owt 2 For 6 cwt. and above 1 cwt 1 6 For 1 cwt. and above 56 lbs 1 o exclusive of cost of cartage and lifting of standards in each of the above cases. For 56 lb. and above 14 lb 6 For 14 lbs. and above 1 lb , 3 For 1 lb. or under 2 Section 21. THIRD SCHEDULE. Weight Ticket or Consignment Note on delivery of Coal over Two Simdredweight. Mr. A. S. \here insert the name of the buger']. Take notice that you are to receive herewith tons owt. lbs. of coal. [ When sold in sacks, ads'] in sacks, each containing cwt. [ When sold in bulk, add} „- . , . , tons owts. lbs. Weight of coal and vehicle Tare weight of vehicle Net weight of coal herewith delivered to " purchaser C. D. [here insert the name of the seller]. E. K [here insert the name of the person in charge of the vehicle]. Where coal is delivered by means of a vehicle, the seller must deliver or send by post or otherwise to the purchaser or his servant, before any part of the coal is unloaded, a ticket or note in this form. Any seller of coal who delivers a less quantity than is stated in this ticket or note is liable to a fine. A.ny person attending on a vehicle used for the delivery of coal who, having received a ticket or note for delivery to the purpJiaser, refuses or neglects to deliver it to the purchaser or his servant, is liable to a fine. Weights and Measures Act, 1889. fourth schedule. 1213 Section 32. 3 Geo. 4, 0. cvi. . . , 6&7"Will.4,o.37. An Act to repeal the Acts now in force relating to liread to be sold in the city of London and the liberties thereof, and within the weekly bills of mortality, and ten miles of the Royal Exchange ; and to provide other regulations for the making and B^e of bread, and preventing the adulteration of meal, flour, and bread, within the limits aforesaid. An Act to repeal the several Acts now in force relating to bread to be sold out of the city of London and the liberties thereof, and be- yond the weekly biUs of mortality, and ten nules of the Royal Ex- change ; and to provide other regulations for the making and sale of bread, and for preventing the adulteration of meal, flour, and bread, beyond the limits aforesaid. Section nine. Section seven. FIFTH SCHEDULE. Enacimenis Repealed. Section 36. Session and Chapter. Short Title. Extent of Eepeal. 41&42Vict.o.49.. The "Weights and Section sixteen. Measures Act, Section forty- three, from ' ' A maker 1878. or seller of weights " to " mea- sures under this Act." Section forty-six. Section forty-seven. Section eighty- six, so far as it re-enacts section nine of the Weights and Measures Act, 1835. The Fifth Schedule. 52 & 53 Vict. c. 24. An Act to repeal certain Statutes, relating to Master and Servants in par- ticular Manufactures, which have ceased to be put in force, or have become unnecessary by the enactment of subsequent Statutes. [26th July, 1889.] 52 & 53 Vict. c. 43. An Act to Amend the Latv relating to the Measurement of the Tonnage of Merchant Ships. [26nhnfv,^^Sft» kWAVUJJi srrmv^ hi ^/>/^A '^y?\A/^o/7k) 13 e« 'AAA.0<^0<^^5or,O^'^^'^.^^7' LA'^/so^??^?' ^hA'^^^c _ , 2S I^^ C'-'vf je