INDEX.

ACCOUNT. See EQUITY, 1.

Under mortgages, how to be taken. See MORTGAGE.

Innes, consignee of a West India estate, was appointed trustee thereof by
B., the tenant for life, for the purpose of keeping down encumbrances.
Innes was also private agent and banker for B., with the understanding
that B. was not, nor were his funds, to be liable for advances made by
Innes for the estate; Innes, becoming embarrassed, was declared bank-
rupt, and assignees were appointed: Held, by the Lords, reversing
orders of the Court of Chancery, on a bill filed by B. and the other own-
ers of the estate, to remove Innes from the possession and management,
- that a sum found due from Innes to B., on their private dealings,
might be set off against a sum found due to Innes in respect of his
advances and payments for the estate. Baillie v. Edwards, 74.

--

The law agent of a joint stock company is not its agent to bind it by repre-
sentations as to its condition and circumstances; nor, though a shareholder
in it, can he bind it as a partner, for a joint stock company is not, like an
ordinary partnership, bound by the act of an individual member. — Burnes
v. Pennell, 497.

AGREEMENT.

-

1. A memorandum which is not a complete agreement is not binding within
the Statute of Frauds; and of an incomplete agreement there cannot be
part performance. Thynne (Lady E.) v. Glengall (Earl), 131.

2. A father having agreed to settle a certain sum for the benefit of * 914
his daughter and the children of her intended marriage with Lord
G., a memorandum of the terms of the settlement was by his direction
written by his solicitor, and approved of by him and Lord G., and he
gave the solicitor instruction to prepare such settlement, but died before
the same was ready for execution, having by his will given the daughter
real estates and a moiety of the residue of his personal estate. Lord G.
married the daughter, and performed his part of the settlement, in conform-
ity to the written memorandum. Held, that the memorandum was not
a complete agreement, binding within the Statute of Frauds. Thynne
(Lady E.) v. Glengall (Earl), 131.

3. A. entered into an agreement with B. and C. to serve them for seven
years at fixed wages, at the rate of three guineas weekly,
"the party

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42

[657]

making default to pay to the other the sum of 5001. by way or in nature
of specific damages." A. was dismissed; he became bankrupt, and after
the bankruptcy brought an action of assumpsit on the agreement, to which
the defendants pleaded his bankruptcy: Held, that this plea was an
answer to the action, for that the right of action in respect of this breach
of the agreement passed to his assignees. Beckham v. Drake, 579.
APPEAL.

-

1. The circumstance that a person has been made a party to a suit in the
Court below, if improperly so made, will not entitle him to appeal to this
House against a decree made in that suit. — Rochfort v. Battersby, 388.
2. An objection to the competency of an appeal ought to have been pre-
sented to the Appeal Committee, but was not noticed till the case came on
for hearing at the bar of the House: the objection was in its nature fatal.
The House therefore dismissed the appeal, but, because the objection had
not been taken till so late a period, dismissed the appeal with costs. -
Id. ib.

-

On the death of a peer, leaving his eldest son and heir, who had been
attainted, the peerage does not vest in him, nor, on his death, the nearest
*915 heir male, but * is forfeited, as much as if he had been a peer at the time
of his attainder. - Perth Peerage, 865.

A peerage limited to a man and his heirs male whomsoever, is forfeitable
under the Act 26 Hen. VIII. c. 13. - Id. ib. See also The Southesk
Peerage, 908.

BANKER.

The relation between a banker and customer, who pays money into the
bank, is the ordinary relation of debtor and creditor, with a superadded
obligation arising out of the custom of bankers to honour the drafts of cus-
tomers, and that relation is not altered by an agreement by the banker to
allow the interest on the balances in the bank. The relation of banker
and customer does not partake of a fiduciary character, nor bear analogy
to the relation between Principal and Factor or Agent, who is quasi trus-
tee for the principal in respect of the particular matter for which he is
appointed factor or agent: Held, therefore, that an account between
bankers and their customer, not long nor complicated, but consisting of a
few items and interest, is not a fit subject for a bill in equity. — Foley v.
Hill, 28.

BANKRUPT. See EVIDENCE, 4.

A. entered into an agreement with B. and C. to serve them for seven years,
at fixed wages, at the rate of three guineas weekly, "the party making
default to pay to the other the sum of 5001. by way or in nature of specific
damages." A. was dismissed; he became bankrupt, and after the bank-
ruptcy brought an action of assumpsit on the agreement, to which the
defendants pleaded his bankruptcy. Held, that this plea was an answer
to the action, for that the right of action in respect of this breach of the
agreement passed to his assignees. - Beckham v. Drake, 579.

BAPTISM. See EVIDENCE.

BASE FEE. See ESTATE.
BIRTH. See EVIDENCE, 1.
BOTTOMRY. See INSURANCE.

CAPTION. See PLEADING, 3.

CHAPLAIN OF BRITISH EMBASSY. See EVIDENCE, 1.
CHARITIES.

By the Act 7 & 8 Vict. c. 97, the power of the Commissioners of Chari-
table Donations and Bequests for * Ireland to sue for the recovery of * 916
such donations and bequests, is expressly limited to cases where they
are withheld, concealed, or misapplied; and the same, when recovered by
the Commissioners, are to be, by themselves, applied to charitable uses, ac-
cording to the donor's intention. And, although they obtain the sanction of
the Attorney-General to their suit, as required by the said Act, they must
maintain it according to the power of suing thereby given to them, and
are not entitled to the general jurisdiction which the Court exercises in
suits instituted by the Attorney-General. A decree, therefore, made at
the suit of the Commissioners, first, removing a testamentary trustee of a
charity, on the grounds of his bankruptcy and residence abroad, but with-
out proof of any improper withholding, or concealment, or misapplication
of the trust property; and, secondly, directing the appointment of another
trustee in his place, is wholly wrong. Semble, that neither bankruptcy,
nor occasional residence abroad, disqualifies a testamentary trustee, to
whom the testator has, unconditionally, confided a large personal discre-
tion in the administration of the trusts, together with power to appoint
a receiver of the rents of the trust estates. Archbold v. The Commission-
ers of Charitable Bequests for Ireland, 440.

CONSPIRACY.

If the Directors of a Company agree to publish false statements of the affairs
of the Company, under such circumstances as show a fraudulent intent
to deceive, they are not only civilly liable to those whom they have
deceived and injured, but may be criminally prosecuted, and punished for
conspiracy. Burnes v. Pennell, 497.

CORPORATION.

Where certain acts of a Corporation are to be performed at a special meeting
of the members of that Corporation, all the persons entitled to be present
thereat must be summoned, if they are within a reasonable summon-

*

ing distance. The omission to summon any one renders the acts done *917
at such meeting in his absence invalid. A finding in a special ver-
dict that a person entitled to be present at a special meeting of a corporate
body was not summoned, and that he was at the time within summoning
distance, throws on the party supporting the validity of the acts done at
such meeting the onus of showing a sufficient cause for his not being sum-
moned. The election of treasurer for the county of the city of Dublin
was vested by the 49 Geo. III. c. 20, in "the board of magistrates of the
county of the said city," and was directed to take place at the Sessions
Court of the city, by vote of the magistrates there present: Held, that
the Recorder of Dublin was a member of that board, and ought to have

been summoned to a meeting of the magistrates summoned for that elec-
tion, and that the omission to summon him rendered the election which
took place in his absence invalid. — Smyth v. Darley, 789.

COSTS.

-

1. The House will not grant the costs of an appeal to come out of the
estate, upon a mere miscarriage of the Court below, where the subject of
litigation, though in the result decided by the Court, was one which
might have been required to be tried as a question of fact. - Piers v.
Piers, 331.

2. An objection to the competency of an appeal ought to have been pre-
sented to the Appeal Committee, but was not noticed till the case came
on for hearing at the bar of this House: the objection was in its nature
fatal. The House therefore dismissed the appeal, but, because the objec-
tion had not been taken till so late a period, dismissed it without costs. —
Rochfort v. Battersby, 388.

3. The Officers of State in Scotland obtained a judgment on interdict
against an individual, who had, by erecting a wall, encroached on the sea-
shore, the suit being instituted by them solely to protect the public right.
*918 The judgment of the Court below was appealed *against and affirmed, and
was affirmed but without costs.
Smith v. The Earl of Stair, and the

Officers of State in Scotland, 807.

Two actions were brought in Scotland, both arising out of the same cause.
They were conjoined. The Lord Ordinary pronounced a judgment,
which, in point of form, applied to one only, but which, in substance,
affected both. His judgment was appealed against to the Court of Ses-
sion, which made a decree, disposing, in form as well as substance, of both
actions: Held, that a decree, so made, was correct. - Burnes v. Pennell,

497.

DEBT. See SATISFACTION.

DEEDS - CONSTRUCTION OF. See LIMITATIONS.

DELIVERY ORDER. See SALE OF Goods.

The giving of a delivery order does not, without some positive act done
under it, operate as a constructive delivery of the goods to which it
relates, nor deprive the owner of the goods, who gave it, of his right of
lien for their price, even as against the claims of a third person who has
bonâ fide purchased them from the original vendee. S., the owner of
sugars, sold them to B., to whom he gave a delivery order addressed to
his agent A., and took a bill of exchange in payment of the price. B.
sold the sugars to M., and transferred to him the delivery order. The
sugars were in the warehouse of L., in whose books they were entered
as received by him "from A., on account of S." The sugars were
weighed and invoiced by A. upon the order of S. Neither B. nor M.
took any steps to act on the delivery order, till a rumour arose of B.'s
insolvency, when M. presented the order to A., and received from him
a fresh order, addressed to L., the warehouse keeper. Before the sugars

could be actually delivered under this order, A. removed them, un-
der the direction of S. Held, affirming the judgment of the Court * 919
below, that the possession of the goods had never been changed,

and that S. might still enforce upon them his lien as vendor.
Smith, 309.

DIRECTORS. See JOINT STOCK COMPANY.

DIVORCE. See MARRIAGE.

DRAINING ACT. See HOLDERNESS DRAINING ACT.

DUBLIN. See CORPORATION.

"ELDEST SON."

M'Ewan v.

A testatrix gave to the eldest son of her daughter Eliza and of her hus-
band E. L., who should be living at the time of her own decease, ten
guineas, adding that she left him no larger sum, because he would have
a handsome provision from the estates of her late husband and of his
own father (who was still alive); and she gave the residue of her prop-
erty to her executors, upon trust, as to one moiety thereof, to pay and
divide the same unto and amongst all the children of her daughter Eliza,
who were then in being or should be thereafter born, except her eldest
son, or such of her sons as should, by the death of an elder brother, become
an eldest son, equally to be divided amongst them, and the survivors
or survivor, when the youngest should arrive at the age of twenty-one
years. At the death of the testatrix, her daughter Eliza had five chil-
dren, and the eldest son was provided for from the estates in the will
mentioned, and he received the ten guineas, but died, without issue, before
the youngest child attained twenty-one. The second, who then became
an eldest son, did not succeed to the provision which had been made for
the eldest son. Held, notwithstanding, that he, being the eldest son at
the time the youngest of the children attained twenty-one, was excluded
from any share in the moiety of the residue. - Livesey v. Livesey, 419.
EMBASSY, BRITISH. See EVIDENCE, 1.

920

The relation between a Banker and Customer, who pays money into
the Bank, is the ordinary relation of debtor and creditor, with a su-
peradded obligation arising out of the custom of bankers to honour the cus-
tomer's drafts; and that relation is not altered by an agreement by the banker
to allow the interest on the balances in the Bank. The relation of Banker
and Customer does not partake of a fiduciary character, nor bear analogy
to the relation between Principal and Factor or agent, who is quasi trus-
tee for the principal in respect of the particular matter for which he is
appointed factor or agent. Held, therefore, that an account between
Bankers and their customer, not long nor complicated, but consisting of a
few items and interest, is not exclusively a subject for a bill in equity. —
Foley v. Hill, 28.

By the Act 7 & 8 Vict. c. 97, the power of the Commissioners of Charitable
Donations and Bequests for Ireland, to sue for the recovery of such dona-
tions and bequests, is expressly limited to cases where they are withheld,
concealed, or misapplied; and the same, when recovered by the commis-