Also, that the banker's receipt so stamped was admissible in evidence. Chaplin v. Clarke, 403

(2). Right of Secretary to Sue.

In covenant by the plaintiff as secretary of a Joint-stock Company, for calls, the declaration stated, that, by indenture made by and between the several persons whose names and seals were or might thereafter be thereunto subscribed, and who had sealed and delivered, or who might seal and deliver the same, of the first part, and W. and M., persons nominated to be covenantees for the benefit of the Company, of the second part, the parties of the first part covenanted with the parties of the second part (inter alia) to pay the calls. Averment, that

whilst the defendant was a shareholder, "and after the execution by the defendant of the said indenture as aforesaid," the directors made a call. Breach, non-payment. The declaration contained no direct averment that the defendant had executed the indenture. By the 4 & 5 Vict. c. xciii, after reciting, that difficulties had arisen in legal proceedings by or against the Company, since by law all members must be named in such proceedings, and that it was expedient that the Company should be rendered capable of suing and being sued in the name of a nominal party, it was enacted, that, in all actions by or on behalf of the Company, it should be sufficient to proceed in the name of the secretary as the nominal plaintiff: -Held, on motion in arrest of judgment, first, that the statute authorised the secretary to sue on this covenant, notwithstanding it was expressly made with the parties of the second part. Secondly, that the words "after the execution by the defendant of the indenture as aforesaid," were, on motion in arrest of judgment, equivalent to an averment that the defendant had

subscribed, sealed, and delivered the indenture, Wills v. Sutherland, 211

(3). Execution against Shareholder.

A policy of insurance contained a proviso, by which it was agreed between the Company and the assured, that the policy should in no case extend or be construed to render liable the respective proprietors of the Company with respect to the same, beyond the amount of their respective individual shares; but that the capital stock and funds of the Company should alone be charged to answer all claims in respect of the policy. The plaintiff having brought an action on the policy against the Company, and having obtained judgment therein Held, that he was precluded by the proviso from issuing execution under the 7 & 8 Vict. c. 110, s. 68, against an individual shareholder who had not signed the policy, although due diligence had been used to enforce the judgment against the Company, Has sell v. The Merchant Traders' Ship Loan and Insurance Association, 525

JUDGE'S ORDER.
See ARREST.
JUDGMENT.
"By Confession."
See BANKRUPT, (4).

(1), As in case of a Nonsuit-Feigned Issue.

Judgment as in caseof a non suit may be had on a feigned issue under the General Inclosure Act, 8 & 9 Vict. e. 118, s. 56. Hancock v. The Earl 447 of Carlisle,

(2). Foreign Judgment.

To an action on a French judgment, the defendant pleaded that he was not, during the accruing of the cause of action, or any part of the proceedings, nor from thence hitherto, 0002

resident in France, or within the jurisdiction of the Court, nor subject to the laws of France; that he was never served with any process or notice whatever; nor had he any notice whatever of any proceedings in the action; nor did he appear in Court, or have any opportunity of defending himself against the claim, and the proceedings were taken in his absence, and without his knowledge, privity, and consent. Replication,

that the defendant became a shareholder in a certain Company in France, subject to all the liabilities and rights attaching thereto. That the defendant was resident in England, and by reason thereof it became necessary, by the law of France, for the defendant to elect a domicile in France, at which the directors of the Company might notify to him all proceedings relative to the Company, or the defendant as such shareholder. That, by the law of France, all legal proceedings affecting any party having his real domicile out of that kingdom, left for him at such elected domicile, were as valid as if left at his real domicile in France. That the defendant made election of domicile at a place in Paris, and gave notice thereof to the plaintiffs. That the assets of the Company being insufficient to discharge their debts, the defendant, as a shareholder, was, by the law of France, liable to pay a certain sum, and to be sued for the same by the plaintiffs. That the plaintiffs, for the recovery thereof, caused a summons to be left at his elected domicile, requiring him to appear in Court at a certain time and place. That the defendant did not appear, according to the exigency of the summons, whereupon the plaintiffs recovered judgment by default. On special demurrer to the replication-Held, first, that the facts stated in the replication afforded an answer to the plea.

In an action for a libel, which contained violent imputations against the plaintiff's character, and in which there was the following passage, "There can be no court of justice unpolluted which this libellous journalist (meaning the plaintiff), this violent agitator, &c. is allowed to disgrace with his presidentship." The defendant pleaded, in justification of the words “libellous journalist," the publication by the plaintiff, in a paper of which the plaintiff was the publisher, of a false, scandalous, malicious, and defamatory libel against one B. C., with intention to injure him in his profession:Held, that the plea imputed to the plaintiff moral misconduct and malice in the publication of the libel, and that the production of the record in the case stated in the plea, and in which action 1007. damages had been recovered against the now plaintiff, did not, without other evidence, support the plea.

A coroner has no right to refuse to examine persons upon oath at an in

A declaration in libel commenced by reciting, that, before and at the time of the committing the grievances, the plaintiff was and still is a surgeon, practising and carrying on his profession as a surgeon, and member of the Royal College of Surgeons, which said College has the power of expelling persons guilty of unprofessional conduct, &c. The declaration stated, that the libel was published of and concerning the plaintiff, and of and concerning him as such surgeon by profession, and of and concerning the The said College and its said power. defendant pleaded, that the plaintiff was not at the time when &c., a surgeon practising or carrying on his profession as a surgeon and member of the Royal College of Surgeons, having the power of expelling persons guilty of unprofessional conduct, &c.-Held, that the power of expulsion, as alleged in the declaration, was material, and traversed by the plea; and that a statement of the existence of that power in another part of the libel was not sufficient as evidence of such power. Wakley v. Healey, 53

LOAN.

See BUILDING SOCIETY.

LUNACY.

Therefore, where a lunatic purchased certain annuities for his life, of a Society which at the time had no knowledge of his unsoundness of mind, the transaction being in the ordinary course of human affairs, and fair and bonâ fide on the part of the Society:

Held, in the Exchequer Chamber, (affirming the judgment of the Court of Exchequer,) that after the death of the lunatic, his personal representatives could not recover back the premiums paid for the annuities.

Also, that it is the duty of the grantee of an annuity to inrol it under the 53 Geo. 3, c. 141, and that he cannot take advantage of the want of such inrolment. Molton v. Camroux,

MARINE INSURANCE. See INSURANCE.

MASTER AND SERVANT.

See TRESPASS, (1).

17

Contractor's Workmen-Negligence of.

A Company, empowered by Act of Parliament to construct a railway, contracted under seal with certain persons to make a portion of the line, and by the contract reserved to themselves the power of dismissing any of the contractors' workmen for incompetence. The workmen, in constructing a bridge over a public highway, negligently caused the death of a person passing beneath along the highway, by allowing a stone to fall upon him:-Held, in an action against the Company, by

Annuity.

Unsoundness of mind will not vacate a contract, if it be unknown to the other contracting party, and no advantage be taken of the lunatic, especially where the contract is executed in whole or in part, so that the parties cannot be restored to their original position.

case,

they were not liable; and that, in such the terms of the contract in ques tion did not make any difference. Reedie v. The London and North Western Railway Company, 244

MELIUS INQUIRENDUMWRIT OF.

See INQUISITION.

926 NOTICE OF ACTION.

MERCHANT SEAMEN'S ACT.

The Merchant Seamen's Act, 7 & 8 Vict. c. 112, is an Act relating to trade or navigation, and therefore all penalties recovered under it are payable to the Merchant Seamen's Society, as being within the proviso of the 5 & 6 Will. 4, c. 176, which disentitles certain boroughs to penalties recovered under Act "relating to the Customs, Excise, and Post-office, or to trade or navigation." The Seamen's Hospital Society v. The Mayor, Alderman, and Burgesses of the Borough of Liverpool,

any

MINE. Transfer of Share in. See STAMP, (5).

MINUTES.

180

Of Board of Directors. See PROVISIONAL COMMITTEE-MAN.

MONEY HAD AND RECEIVED.

See BANKRUPT, (3).

NEGLIGENCE.

By Contractor's Workmen. See MASTER AND SERVANT.

NOTICE OF ACTION.
Under 7 & 8 Vict. c. 112.
See SEAMAN.

Verbal, when sufficient.

In an action for the breach of an agreement, by which the defendant undertook to produce one A. B., "if he received seven days' notice, requiring the appearance of the said A. B., at a place to be in the said notice named:"-Held, that a verbal notice satisfied the agreement, and therefore, that the declaration was good, although it did not state that a written notice had been given. Thompson v. Ayling, 614

PALACE COURT ACT.

"OWNER OF GOODS." Meaning of Term in Charter. See PORT DUTIES.

Owner and Proprietor.

A declaration stated, that a certain messuage was in the occupation of S., as tenant to the plaintiff, the reversion thereof belonging to the plaintiff; that the defendant was the owner and proprietor of another messuage adjoining, and by reason thereof, as such owner and proprietor, ought to have repaired and kept repaired in a substantial manner the messuage secondly mentioned. Breach, non-repair. Plea, that the messuages were contiguous and abutting on each other, and were divided by a party wall, whereof the plaintiff was seised of an undivided moiety; that the wall was in a ruinous state, and, being parcel of the messuage in the declaration secondly mentioned, had fallen on the first-mentioned messuage. Replication, that the wall was not a party wall, nor was it a wall whereof and wherein the plaintiff was seised:--Held, on special demurrer, first, that the replication was good; secondly, that the declaration was bad, inasmuch as there is no obligation towards a neighbour, cast by law on the owner of a house merely as such, to keep it repaired in a substantial manner, his only duty being to prevent it from being a nuisance. Also, that the term "owner," as well as "proprietor," might mean, that the defendant had the whole legal interest in the premises, so that no one also had any estate in possession or reversion, or that he had the subsisting legal interest at the time of the wrong complained of, or that he was the owner of the whole or some interest as distinguishable from that of the tenant in possession. Chauntler v. Robinson, 163

PALACE COURT ACT.
See WARRANT OF EXECUTION.

PARTIES TO ACTION.

PARTICULARS OF DEMAND. See PRACTICE, (2).

PARTIES TO ACTION.

In Action under Deed.

By an indenture between A. B., C. D., and others, subscribers to a certain projected Company of the first part, E. F. and G. H. of the second part, and C. D. and others of the third part, (being also some of the parties of the first part), after reciting that the parties of the third part had acted as managing ditectors, that the parties of the first part had become respectively subscribers, and had paid their respective deposits into the hands of certain bankers of the Company, appointed by the parties of the third part, the receipt of which the said bankers did thereby acknowledge; it was witnessed, that, for the more complete formation of the Company, "the parties hereto of the first part do hereby mutually agree with each other and every of the persons, companies, and corporations who have subscribed, or should become subscribers, &c., and each of them doth hereby for himself and herself, his and her heirs, executors, and administrators, and so far as the parties hereto of the first part consist of companies, &c., for itself and its successors, and as to and concerning only the acts, deeds, and defaults of himself, herself, and itself respectively, and his, her, and its respective heirs, executors, administrators, and successors, covenant with the said E. F. and G. H., their executors and administrators, in the manner expressed in the several clauses hereinafter expressed." The deed then set out the several clauses. The 1st clause was to the effect, that the parties of the third part should be managing directors. The 7th and 8th clauses were, that the managing directors should have absolute discretion to do what was necessary to obtain an Act of Par

PAVING RATES. 927

liament, and that they should have absolute discretion, subject to certain provisoes, over the funds until such Act should be obtained. The 9th clause was, that the managing directors for the time being should have power, before such Act should be obtained, to dissolve the Company, and that, upon such dissolution, the several deposits of the persons of the first part respectively should be paid to them respectively without any deduction whatever. The 10th clause stated, "that if within three years of the date or the deed no Act should be obtained, then that the said deed shall be null and void to all intents, &c., and thereupon the deposits so paid by the parties of the first part shall be returned to them respectively, without any deduction." In an action of covenant upon the preceding deed, brought after the termination of the three years, no Act having been obtained, by the plaintiffs, viz. A. B. of the first part, and E. F. and G. H., trustees, of the second part, against C. D. of the third part:-Held, that, assuming the plaintiffs were the proper parties to sue (which, semble, they were not), the action, was not maintainable, inasmuch as there was no covenant by the parties of the third part as managing directors, but merely as subscribers; or, assuming that there was a covenant amounting to a stipulation that the directors would return the deposits, each director was only bound for his individual act, and to concur in ordering a return of the deposits on applicacation made to the body of directors. Higginbottom v. Burge, 667

PARTNERSHIP.

Guarantee in Name of. See GUARANTIE.

PAVING RATES.

See PROHIBITION.