INDEX.

ACCOUNTS: See PATENT, 1, 5.

..

ACTES OF STATES OF JERSEY of the 24th June, 1851, relating to
Wills of real estate-Construction of Arts. 8 and 10. Mauger v. Le
Gallais
ACTION-1. To recover the difference between the original price bid at
public auction, and the sum realized upon a re-sale, for the hull of a
stranded vessel, sold by the Master and purchased by the Defendant,
upon conditions of sale, which were appended to the memorandum of
purchase, and signed after the sale by the Defendant's agent on his
behalf; which conditions differed materially from those appended to
the catalogue of sale, and which were the conditions read out at the
time of sale.

The Defendant paid the deposit upon the terms of the conditions of
sale read at the auction, and took possession of the vessel, without
having any formal transfer made to him. The vessel was laden with
rice, and was soon afterwards, by order of the Board of Health, de-
stroyed as a nuisance. The Defendant having declined to complete
the purchase, the vendor resumed possession of the vessel, and re-sold
it at a loss.

The form of the action was by libel, according to the Roman-Dutch
Law. The Defendant, in his answer, among other defences, denied
that he had purchased under the conditions appended to the memo-
randum of sale, and prayed the dismissal of the action with costs;
and in reconvention, for payment of the amount of the deposit, and
damages he had sustained, to the amount of £1000, for loss of profits
and advantages from the vessel, her tackle and implements.

The judgment of the District Court was in favour of the Plaintiff,
the Judge of that Court being of opinion, that the Defendant pur-
chased on the conditions of sale appended to the memorandum of pur-
chase, and that, according to those conditions, the Plaintiff had rightly
resumed possession and re-sold the vessel. The Supreme Court on
appeal reversed that judgment, and ordered judgment to be entered
for the Defendant, being of opinion, that the Plaintiff having founded
his claim upon an agreement which gave, among other things, a right
of re-sale, with conditions different from those read at the auction,
and, having in consequence repossessed himself of the vessel and re-
sold her, had thereby deprived himself of the right to recover from the
Defendant, and awarded the Defendant the damages claimed by his

answer:-

Held, by the Judicial Committee, (1), that though the merits of the
case were with the Plaintiff, neither the judgment of the District or
Supreme Court could be sustained, as there was no other agreement
between the parties than the one founded on the conditions read out
in the auction room at the sale; and that, the Plaintiff having sued
£ 3 B2

PAGE

470

upon a different contract, was not entitled to recover, and ought to
have been non-suited: and (2), that in the absence of any evidence of
damage, the Defendant was not entitled to judgment for damages :-
Held further, that although the act of the Plaintiff in retaking the
hull of the ship and selling her was wrongful and entitled the Defen-
dant to bring an action of trover, it did not amount to a rescission of
contract. Page v. Cowasjee Eduljee

2. Against Speaker and Members of the Legislative Assembly
of Dominica for false imprisonment for contempt of that Assembly.
Doyle v. Falconer

3. By Banking Company against their late Manager and Cashier
for negligence and misconduct in application of the Banking funds.
The Bank of Upper Canada v. Bradshaw
ACTION EN BORNAGE: See BOUNDARIES.

ADMIRALTY REGULATIONS: See SHIP AND SHIPPING, 2, 3.
ADVERSE POSSESSION: See COLONIAL LAW, 9, 10.
AMBIGUITY IN DEEDS: See BOUNDARIES.

APPEAL-1. Special leave to appeal granted, notwithstanding that no
application had been made for such leave to the Court below: upon
the allegation, that though the amount decreed was much under the
appealable value, the original demand being necessarily limited by the
jurisdiction of the Court in which the suit was originally instituted,
yet the subject matter at issue exceeded in value the appealable
amount. Mutusawmy Jagavera Yettapa Naiker v. Vencataswara
Yettia

..

2. Sect. 23 of the 26 & 27 Vict. c. 24, which limits the time for
appealing from the Vice-Admiralty Courts abroad to six months, vests,
by the same section, a discretion in the Judicial Committee to admit
an appeal notwithstanding six months have elapsed.

Circumstances shewing that there was no wilful laches in not lodging
a petition of appeal in the Registry of the High Court of Admiralty
within the prescribed time, and that the delay arose from the parties
waiting a decision on a pending appeal, which involved a similar ques-
tion, held sufficient for the exercise of the discretion vested in the
Judicial Committee to admit an appeal under that section, upon pay-
ment of the costs of the application, and giving security for further
costs. Casanova v. The Queen

PAGE

127

328

479

1

115

3. Several actions, in the nature of Petitions of Right, were brought
against the Crown in Victoria under the Colonial Act, 28 Vict. No.
241, and judgments obtained against the Crown; but the Supreme
Court of that Colony refused leave to appeal to England, in some
cases, because the amount recovered was under £500, the appealable
value prescribed by the Order in Council of the 9th of June, 1860, and
in other cases, except upon terms of the Attorney-General in the
Colony paying the amount of the verdicts with costs.

In giving leave to appeal, upon special petition for that purpose,
the Judicial Committee refused to sanction the terms imposed by the
Supreme Court on the Attorney-General of finding security for costs
of the appeals, and admitted the appeals without security being
given.

Appeals directed to be consolidated and heard as one case.
The Attorney-General of Victoria

4. By an order of the Supreme Court of Victoria leave to appeal to
Her Majesty in Council, pursuant to the Colonial Act, 15 Vict. c. 10,
was allowed on condition of the Appellant giving security within

147

three months for costs of appeal. The Appellant at first offered to
deposit money to the amount of the security required, but afterwards
a security Bond was approved by the Master of the Court, and, with-
out objection by the Defendants, filed as of record; but in consequence
of objections afterwards taken by the Defendants' Solicitors to the
competency of the proposed sureties, the Bond was not filed within
three months. Upon a motion by the Defendants to set aside the
leave to appeal upon that ground, the Supreme Court made an Order
revoking the leave given.

In such circumstances their Lordships, upon petition, gave special
leave to appeal, on security being given for costs in England, with
liberty for the Petitioners to apply to the Court at Victoria to cancel
the security Bond. Webster v. Power

..

5. Leave to adduce fresh evidence upon appeal refused: it appear-
ing that the matters to which such evidence referred regarded, first,
the loss of insurance by reason of the deviation of a vessel from her
course in effecting the salvage services, which fact was sufficiently be-
fore the Court below to enable it to apportion the amount of salvage;
and, secondly, that the further evidence went to meet a charge affecting
character, which might have been met by an application to the Court
below: their Lordships being of opinion that, if requisite, sufficient
opportunity would be afforded the parties to produce such evidence at
the hearing of the appeal. The "Scindia.”

6. Leave to appeal from an Order of the Supreme Court of Civil
Justice of British Guiana, committing the publisher of a local journal
to prison for six months for an alleged contempt of Court, in publish-
ing in such journal comments on the administration of justice by that
Court, with liberty to the Judges of the Supreme Court to object to
the competency of such appeal at the hearing. In re McDermott ..
7. Permission given to appeal in formâ pauperis in a case in which
the Appellant was not heard in the Court below and refused leave to
appeal to Her Majesty in Council, the decision being in fact ex parte.
George v. The Queen

..

8. No appeal is given by the Act, 3 & 4 Vict. c. 86, either to the
Arches Court, or thence to her Majesty in Council, from the decision
of the Commissioners on the regularity or irregularity of the proceed-
ings. Simpson v. Flamank

..

PAGE

150

241

260

389

463

520, 536

9. Admitted in criminal cases from the Colonies. Reg. v. Bertrand,
Levien v. Reg.

..

APPEAL, REHEARING OF: See PRACTICE, 4.

APPEALABLE VALUE: See APPEAL, 1, 3.

ASSIGNEE OF MORTGAGEE: See MORTGAGE.

ATTESTATION CLAUSE: See COLONIAL LAW, 8.

ATTORNEY, Suspension for Contempt of Court: See CONTEMPT OF
COURT, 1.

ATTORNEY-GENERAL FOR VICTORIA, allowed to appeal to the
Queen in Council without giving security for costs. In re The Attor-
ney-General of Victoria ..

AUCTION SALE: See ACTION, 1.

..

AUSTRALIA: See COLONIAL LAW, 1; Crown Grants.

147

PAGE

BANKRUPTCY: See COLONIAL LAW, 6; INSOLVENCY.

BARRISTER, Suspension for Contempt of Court: See CONTEMPT OF
COURT, 1.

BASTARD: See COLONIAL LAw, 5.

BILL OF LADING-1. A Bill of lading for the delivery of goods to order
and assigns, is a negotiable instrument, which by indorsement and
delivery passes the property in the goods to the indorsee, subject only
to the right of the unpaid vendor to stop them in transitu.

The indorsee may deprive the vendor of this right by indorsing the
Bill of lading for valuable consideration, although the goods are not
paid for; even if Bills have been given which are certain to be dis-
honoured, provided the indorsee for value has acted bona fide and
without notice.

A firm (M. &. D.) in France, sold, through their agent in England,
to S. & T. a lot of linseed cake, payable by Bill at three months' date,
and shipped the same. A Bill of lading, signed by the Master and
indorsed by M. & D., was delivered to S. & T. in exchange for their
acceptance at three months' date. Afterwards the Bill of lading was
re-delivered to M. & D.'s agent to hold as security against the accept-
ance. T., a member of the firm of S. & T., subsequently obtained the
Bill of lading from M. & D.'s agent, by a fraudulent misrepresenta-
tion, and indorsed and delivered it to P. & Co. for value, without
notice of the fraud. Before the goods arrived in England, S. & T.
became insolvent. Upon appeal, Held by the Judicial Committee
(reversing the judgment of the Court of Admiralty) :-

First, that the firm of S. & T. acquired no new title to the goods by
the fraud of T., as it merely invested them with the temporary power
of transferring their property in the goods; and

Secondly, that the right of M. & D., the vendors, to stop in transitu
was gone, as the transfer to P. & Co. was bonâ fide, and for a valuable
consideration, in ignorance of T.'s fraud. The "Marie Joseph”

2. Under a charter-party the shippers put a cargo, consisting of
casks of oil, wool, and rags, on board the chartered vessel, and per-
sonally superintended the stowage of the cargo in the hold of the
vessel. In the margin of the Bill of lading of the casks of oil there
was this memorandum, "weight, measurement, and contents unknown,
and not accountable for leakage." The Bill of lading was indorsed in
blank by the shippers, and assigned to B. & Co. In the course of the
voyage the oil casks became heated by the action and contiguity of
the wool and rags, and a very large portion of the oil was lost:—

Held, in a suit against the ship under the provisions of the
Admiralty Act, 1861, for damages occasioned by the shipowners'
negligence:

First, that ignorance of the shipowners as to the latent effect of heat,
in storing the casks of oil with wool and rags, did not, in the circum-
stances of the shippers superintending the stowage, amount to such
negligence as to make them liable to the holders of the Bill of lading
for the loss occasioned by the leakage of the oil; and

Secondly, that the limitation by the memorandum in the Bill of
lading, that the shipowners were not to be accountable for leakage,
was not restricted as to the quantity of leakage, and protected the
shipowners, in the absence of proof that the leakage was occasioned by
their negligence. The "Hélène
BOUNDARIES-Action en bornage to ascertain the boundary line between
the contiguous properties of the Plaintiff and Defendant, which pro-
perty was formerly one Lot, and described as containing between 140
or 150 acres. This was afterwards sold in two Lots. The Plaintiff's,

219

231

the eastern portion, was described in the deeds as containing "90 acres,
more or less." The Defendant's, the western portion, "about fifty
acres;" but the descriptions in the deeds did not agree as to the way
the line of boundary was to run. The effect of a Surveyor's report,
which the Court in Canada homologated, was to make a boundary
line, by which the Defendant got sixty-one acres, and reduced the
Plaintiff's to eighty-two acres. Upon appeal, held (reversing the
decrees of the Superior Court and the Court of Queen's Bench), that
those Courts were wrong in their construction of the deeds and evidence
as to the boundaries, the rule being that, if in a deed conveying land,
the description of the land intended to be conveyed is couched in such
ambiguous terms that it is very doubtful what was intended to be the
boundaries of the land, and the language of the description equally
admits of two different constructions, the one making the quantity
conveyed agree with the quantity mentioned in the deed, and the
other making the quantity altogether different, the former construction
must prevail.

Held, further, that the case differed from a conveyance of a certain
ascertained piece of land accurately described by its boundaries on all
sides, with a statement that it contained so many acres, “or there-
abouts," when, if the quantity was inaccurately stated, it did not
affect the transaction. Herrick v. Sixby

BILLS OF LADING ACT, 18 & 19 Vict. c. 10: See PLEADING, 1.
BRITISH GUIANA: See APPEAL, 6.

CAPE OF GOOD HOPE: See ECCLESIASTICAL LAW, 2.

CHANCEL OF CHURCH: See ECCLESIASTICAL LAW, 1.

PAGE

436

CHURCH DISCIPLINE ACT, 3 & 4 Vict. c. 86, proceedings under, against
a Clergyman. Simpson v. Flamank

CITATION: See PLEADING, 2.

CLERGY: See ECCLESIASTICAL LAW; PLEADING, 2.

CLERK IN HOLY ORDERS: See PLEADING, 2.

CODE CIVIL-1. General principles by which Courts are to be governed
in constructing the Code Civil, as derived from the decisions of the Cour
de Cassation and the leading Text writers of France. Her Majesty's
Procureur and Advocate-General v. Bruneau..

2. ART. 1384: See COLONIAL LAW, 4.
COLLATERAL SECURITY: See MORTGAGE.
COLLISION: See PILOT; SHIP AND SHIPPING.
COLONIAL BAR: See CONTEMPT OF COURT, 1.
COLONIAL CHURCH: See ECCLESIASTICAL LAW, 2.

463

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169

COLONIAL LAW-1. Construction of the Victoria Colonial Acts, 24 Vict.
No. 117, and the 25 Vict. No. 145, for regulating and amending the
laws relating to the sale and occupation of Crown Lands in the
Colony.

C. and B., having been in the occupation of certain waste lands as
licensees paying an annual rent, obtained from the Governor a license
in writing to occupy the same for one year and no longer, subject also
to the reserved sight of the Crown, to sell or proclaim any portion of
such lands as a gold-field common, without compensation for the loss
of enjoyment to the licensee :-

Held, upon a sale being made by the Crown of a portion of such
lands after proclamation, and the expiration of the tenancy for the
year, that the Crown had, under the terms of the licenses, as also
upon the construction of the Colonial Acts, an indefeasible title to