BANKING COPARTNERSHIP.

and asked if the transfer would be allowed. The clerk went into an inner room, and came out, saying that the transfer would be accepted. On the 25th of August, T. paid the defendant the price of the shares, and on the next day received a certificate, signed by three directors, certifying that he was the proprietor of these shares, and that they stood in his name in "The Share Register Book." No consent to the transfer was ever given by a board of directors; but the certificate, which was not in the form prescribed by the above clause, was signed, first by the managing director, and afterwards by the two others, separately at their private residences. T., on receiving this certificate, signed a receipt, which was delivered to and and kept by the Bank, in which T. stated that he was the holder of these shares, and that, having executed the deed of settlement, he agreed to abide by the rules and regulations of the Company. Soon afterwards the managing directors caused the transfer to be entered in "The Share Register Book." On the 14th January, 1848, a board of directors was held, and by their direction an entry was made, declaring the transfer to T. null and void. For five or six years past all transfers of shares had been made in the same manner. Between August and January several circulars were sent by the board to shareholders, including T., but none to the defendant before the 7th January, 1848:-Held, that there was no such consent to the transfer by "a board of directors," as required by the deed of settlement, and that this irregular mode of transfer, though adopted for some years, was wholly ineffectual, and consequently the defendant remained liable as a shareholder.

Quere, whether, if three directors had given a certificate in the prescribed form, the parties transferring

and receiving the shares might not have treated that certificate as conclusive evidence of a consent by the board.

Held, also, that the annual general return for March, 1848, to the Stamp Office, under the 7 Geo. 4, c. 46, was admissible in evidence in support of the issue, whether the defendant was a shareholder on the 24th of January, 1848. Bosanquet v. Shortridge, 699

(2). Executor of deceased Member— Liability of.

The deed of settlement of a jointstock banking copartnership, established under the 7 Geo. 4, c. 46, provided that the executor of a deceased shareholder should not be a member of the Company, in respect of such shares, but should be at liberty to sell the shares, or at his option to become a member on complying with certain provisions; and that, if he did not elect to become a member, he was not to be entitled to any dividend accruing due after the testator's death-Held, that the executor of a deceased shareholder who received a dividend which accrued due after the death of his testator, but had not complied with the provisions of the deed of settlement, was not a member for the purpose of execution against him by scire facias on a judgment against the public officer of the Company. Ness v. Armstrong,

BANKRUPT.

21

(1). The defendant lent T. 500%., and received from him a document whereby he promised to pay the defendant or his order, on demand, 5007., with 77. per cent. interest, and also to give the defendant a life policy, and the lease of a house. The lease and policy were deposited within a few days, and some weeks afterwards T. executed an assignment of the lease to

the defendant, as a security for repayment of the 500l., and interest at 51. per cent. T. subsequently made several payments of interest at 77. per cent.:-Held, that the above document was not within the protection of the 3 & 4 Will. 4, c. 98, s. 7, for it was not a promissory note, inasmuch as it contained a promise to pay money, and also to do another act; that the loan was not protected by the 2 & 3 Vict. c. 37, because it was accompanied by a real security; and that, the assignment being part of the same transaction, the whole was usurious and void under the 12 Anne, stat. 2, c. 16, and the assignees of T., who had become bankrupt, were entitled to recover both the lease and policy.

Quare, whether, if the document had been a promissory note, the loan would have been protected by the 3 & 4 Will. 4, c. 98, s. 7, it being further secured by an interest in land. Follett v. Moore, 410

(2). Contingent Debt.

Under the 6 Geo. 4, c. 16, s. 56, a claim on a guarantee for a sum certain, when due, is proveable as a debt, and before it is due is proveable as a debt due on a contingency.

A. & Co. bought certain wools of B. & Co., payable by the buyers' acceptance at eight months; but before the sale was completed, B. & Co. requiring some security in consideration of 17. per cent., obtained the following instrument from C., signed by him: "Gentlemen,-In consideration of 17. per cent. I hereby guarantee the due and correct payment of half the amount of 136 bales of wool, sold to Messrs. A. & Co. as per contract," &c. Before the bill given by A. & Co. fell due, a fiat in bankruptcy issued against C., and, shortly afterwards, against A. & Co., and no dividend was declared under either fiat. The bill was duly pre

sented, and remaining unpaid :-Held, that the claim arising out of the guarantee was proveable under the fiat against C.-Held, also, that the instrument was a guarantee. In re Willis, 530 (3). Voluntary Payment-Money had and received.

The defendant's wife, whilst sole, made, as surety with F., a joint and several promissory note payable to L.: F. having become embarrassed, delivered his effects to W. for the benefit of his creditors. The defendant applied to F. for money to take up the note, when F., voluntarily, and in contemplation of bankruptcy, gave him an order upon W. for the amount, which was paid to the defendant. L., in whose hands the note was, refused to receive the amount unless the whole of F.'s debt to him was paid, and the defendant retained it as an indemnity. A fiat in bankruptcy having issued against F.,-Held, that his assignees were entitled to recover from the defendant the sum so paid to him, as money received for their use. Groom v. Watts.

BILL OF EXCHANGE. (1). Waiver of Acceptance-Indorsement after due-Argumentative Denial of Indorsement.

Assumpsit on a bill of exchange, drawn by W. on and accepted by the defendant, payable to the order of W. six months after date, and indorsed by W. to the plaintiff. One of the defendants (H.) let judgment go by default: the other defendants pleaded, that after they accepted the bill, and before it became due, and before it was indorsed to the plaintiff as in the declaration mentioned, W. waived the acceptance of the bill, and exonerated and discharged the defendants from the same, and from the payment of the bill, and that no person ever gave or received any consideration for the said indorsement. Another plea differed from the above, only in stating, as the concluding averment, that the bill was indorsed to the plaintiff after it became due:-Held, on special demurrer, (by the Court of Exchequer Chamber, affirming the judgment of the Court of Exchequer,) that these pleas were bad, for not shewing that W. was the holder and payee of the bill at the time of the alleged waiver by him.

Another plea stated, that, after the making and acceptance of the bill, and before it became due, it was delivered, so accepted by the defendants, to W., and that while W. was the holder and payee, and before it became due, W. indorsed it to the defendant H., and delivered it so indorsed to H., with the intention of divesting himself, and

VOL. IV.

whereby he did divest himself, of all right, title, and interest in and to the bill, and of the right of suing thereon, and of indorsing the same again; that the bill was so indorsed to H. for a valuable consideration, and that H. continued to be the holder of the bill from the time of the said indorsement thereof to him, W., until it was delivered to H. by the plaintiff; that the indorsement in the declaration mentioned consisted merely of the lastmentioned delivery by H. to the plaintiff of the bill so indosed by W., and that it was never indorsed by W. otherwise than in this plea mentioned; and that it was delivered so indorsed by H. to the plaintiff after it had become due and payable:-Held, by the Court of Exchequer Chamber, that this plea was a good answer to the action in substance; and also (reversing, as to this point, the judgment of the Court of Exchequer), that it was not bad in form, as being an argumentative traverse of the indorsement to the plaintiff.

There were other pleas, which differed from this last only in stating, (instead of the allegation that the delivery of the bill by H. to the plaintiff was after it had become due), that at the time when it was so delivered to the plaintiff, he had notice and knowledge of all the matters in the plea mentioned; and that there was no consideration for the delivery of the bill to the plaintiff:-Held, that these pleas were bad, the facts alleged in them not preventing the operation of an indorsement of the bill by H., which might be before the bill became due. Harmer v. Steele, 1

(2). Presumption as to Bona Fide

Holder.

bill in question by his clerk to inquire whether they would discount it, and to inform them of an agreement between him and C. D. with respect to the title. The defendants subsequently placed this bill to the credit of A. B. At the trial, neither side having called the clerk to prove that he had delivered the message:-Held, that, as the presumption was, that the defendants were bonâ fide holders of the bill for value, and also that they had acted honestly, it could not be presumed that the clerk had delivered the message, and therefore, that the defendants were entitled to the bill. dleton v. Barned,

BONA FIDES.

See CONSTABLE.

BOND.

To Churchwarden.

See CHURCHWARDENS.

Mid

241

By Crown Debtor-Form of Pleading. A bond to the Crown, under the 33 Hen. 8, c. 39, binds all lands of the obligor over which he has a disposing power at the time he entered into the bond.

The giving such a bond is a voluntary act upon the part of the obligor, and he cannot by afterwards exercising the power, defeat the right of the Crown.

Such bond is within the 33 Hen. 8, c. 39, though made payable to "the King, his heirs and successors," and, being a record, can be looked at by the Court, although it be not set out in the pleadings. Regina v. Ellis. 652

BREACH.
Insufficient.

See PLEADING, I., (4).

BUILDING SOCIETY.

BUILDING SOCIETY.

Reference to Arbitration-Loan-Declaration by Trustee for time being.

A rule of a building society, requiring disputes between the Society and any member thereof to be referred to arbitration, pursuant to the 10 Geo. 4, c. 56, s. 27, (incorporated with the 6 & 7 Will. 4, c. 32,) applies only to matters in dispute between the Society and any member, as member. Therefore, where a building society lent money to a member on mortgage of leasehold property, and the member covenanted to observe and fulfil the rules of the Society, and also to pay the rent reserved by the lease, and the trustees of the Society sued for breaches of both these covenants:-Held, that, as some part of the plaintiff's claim was not a matter in dispute between the Society and the defendant as member, but only as mortgagor, the Society was not bound by its rule to refer to arbitration the subjectmatter of the action.

Quaere, whether, in such case, if the plaintiffs had declared only for the matter in dispute between the Society and the defendant as member, they would have been bound to refer.

Another rule of the Society required that a trustee, who was removed, should assign securities to the succeeding trustee :-Held, that a declaration in covenant on a mortgage deed, stating that the plaintiffs were trustees for the time being, and sued as such, according to the form of the statute, was good on general demurrer, although it appeared by plea, that no assignment of the security had been made to them.

A building society may lend money to one of its own members on mortgage, and the security will, under the 10 Geo. 4, c. 56, s. 21, vest in the treasurer or trustees for the time being.

Of Judge, under 43 Eliz.-Agreement-Construction of.

Where an agreement is entered into to give a lease to which a seal is affixed, but in which lease the term has expired, such agreement is not satisfied by giving up the lease, with the seal torn off.

In an action of assumpsit a verdict was taken by consent for the defendant, upon one of the issues, with leave for the plaintiff to move to enter a verdict, with 1s. damages, on a point of law reserved. The rule was made absolute, and the Judge afterwards certified, under the 43 Eliz. c. 6, to deprive the plaintiff of costs:-Held, that he had power to do so, and that the Court had no authority to set aside his certificate. Richardson v. Barnes, 128

CHARTER.

Construction of.

See PORT DUTIES.

Condition Precedent. Assumpsit on the following charter

party:-"It is mutually agreed between E. O., agent for the owners of the "Lydia," new ship, now on the stocks, of the measurement of 1100 tons or thereabouts, now at Quebec, to be launched and ready to receive cargo in all May, guaranteed to sail in all June, and F. & Co., merchants, that the ship shall proceed to &c., and there load a cargo of timber, &c. :— Held, that the readiness to receive a cargo in all May was a condition precedent to the plaintiff's right to recover for not loading a full cargo; and that a plea stating that the ship was not ready to receive a cargo in all May was good on general demurrer. Oliver v. Fielden, 135

CHARTER-PARTY. Ballast-Freedom of Ship from Suspicion.

A shipowner is entitled to take merchandise for freight as ballast on board his chartered vessel, provided the merchandise occupies no more space than ballast would have done.

There is no undertaking on the part of a ship-owner that his vessel (if really fit) shall be free from suspicion of unfitness to receive a cargo on board. Towse v. Henderson, 890

CHURCHWARDENS.

Bond to Board of Guardians.

To an action by churchwardens and overseers on a bond given to them under the 59 Geo. 3, c. 12, s. 7, by an assistant overseer of the parish of G., the defendant pleaded, that, before breach of the condition, the parish of G. was in a union according to the 7 & 8 Vict. c. 101, of which union there was a board of guardians, and that the bond was not put in suit by them:-Held, that the plea was bad in substance, inasmuch NNN 2