cision in Wall v. Wall (15 Sim. 513)
observed upon. Robinson v. Wheel-
wright.
Page 535
An adventurer in a Mining Com-
pany, the rules of which did not
contain any provision for the for-
feiture of shares on non-payment
of calls, received notice from his
co-adventurers and co-lessees of
the mines, that unless his arrears
of calls were paid up, his shares
would be forfeited on a specified
day. He replied by denying the
right to forfeit his shares. A re-
solution extending the time for
payment was then communicated
to him, to which he replied by
denying the right to deprive him
of his share in the lease. Some
months after the extended time
had expired, he received from the
co-adventurers another application
for payment of his arrears, of which
he took no notice until more than
six months had elapsed, when he
claimed to be still a partner. Two
years afterwards he filed a bill for
an account:-Held, that he was
entitled to be still considered a
partner.
Although mining partnerships differ
in many respects from others, and
it would be often unjust to allow a
partner to participate in the suc-
cess of such a speculation who had
omitted to contribute to it while
doubtful, it would be scarcely less
unjust to allow, in all cases, the
partners who have paid, as against
one who has not, to take the law into
their own hands and appropriate
to themselves the whole profits.
Every such case depends on its own
circumstances, and particularly on
the question whether there has
been a purpose of abandonment
on the part of a partner in default.
Hart v. Clarke.
Page 232
MISREPRESENTATION.
See VENDOR AND PURCHASER.
A mortgagor, having made two suc-
cessive mortgages of his estate to
different persons, purchased the
estate from the first mortgagee
selling under a power of sale con-
tained in his mortgage: the pur-
chase-money was not sufficient to
pay off the first mortgage:-Held,
that the mortgagor could not by
this purchase defeat the title of
the second mortgagee.
Whether this would be the case if the
estate had been sold to a stranger
and subsequently purchased from
such stranger by the mortgagor,
quære. Olter v. Lord Vaux.
EXONERATION.
STATUTES, CONSTRUCTION OF.
MORTMAIN.
See CHARITY, 1.
ORDER AND DISPOSITION.
See BANKRUPTCY, 6.
On the death of an usher of the
Court in 1702, a large sum, for
which, as usher, he was account-
able, was due from him. In a
suit instituted for the administra-
tion of his estate, more than suffi-
cient was realized to liquidate
the amount, and all sums actually
claimed were paid. In 1719 the
Court ordered a fund sufficient
answer the unclaimed sums
to be invested, and directed the
interest to be paid to the repre-
sentative of the deceased usher
until further order. Similar orders
for payment of the interest were
from time to time, down to 1833,
made on the application of the
existing representative of the
usher; and in 1854, a petition was
presented for the same purpose by
the then representative. On a full
discussion of the case, and on the
petition being amended, an order
was made for the transfer to him
of the principal fund.
Whether there can be an appeal to
the House of Lords upon a mat-
ter relating to the Suitors' Fund,
quære, by the Lord Chancellor.
Trevor v. Blucke. Page 170
ONUS PROBANDI.
See UNDUE INFLUENCE.
PARTNERS.
See BANKRUPTCY, 12, 13.
1. An agreement was entered into
between four persons who were
interested in certain Patents and
Inventions relating to Gutta Per-
cha, that all Patents taken out, or
in the course of being taken or
intended to be taken out, or that
might at any time thereafter be
taken out by any or either of
them, or on account of and for the
benefit of any or either of them
in relation to the preparation and
application of Gutta Percha, or
the manufacture of any articles
therefrom, should be assigned to
trustees and held for their com-
mon benefit. Subsequently one
of the parties took out a Patent
for "Improvements in Apparatus
and Machinery for giving Shape
and Configuration to Plastic Sub-
stances," and refused to assign the
Patent to the trustees, alleging
that it was not comprised in the
agreement: - Held, that the Patent,
so far as it related to Gutta Percha,
was subject to the trusts of the
agreement, and that it could not
be treated as not being so, be-
cause it was for machinery which
might be applied to the manufac-
ture of articles of Gutta Percha
and not for the manufacture of
any such articles. Bewley v. Han-
cock.
Page 391
2. A contractor for certain harbour
works had in the progress of his
undertaking invented an apparatus
which greatly facilitated the works,
but which could only be tested in
a place accessible to the public.
After having used the apparatus
for four months in the progress of
the works, he applied for a patent:
-Held, that such user amounted
to a dedication to the public, and
that he was not entitled to a Pa-
tent. In re Adamson's Patent.
Page 420
3. An application under the 2nd
section of the Act 16 & 17 Vict.
c. 115, for the inspection of the
provisional specification of certain
Letters Patent, on the ground that
the subject-matter was the same
as that for which the applicant
had obtained a Patent, refused.
Letters Patent sealed in a case where
the evidence shewed great simi-
larity between the alleged inven-
tion and one for which a Patent
was already in force. In re Tol-
son's Patent.
Page 422
See APPROPRIATION OF PAYMENTS.
PENDING PROCEEDING.
See CHARITY, 2.
PLAINTIFF.
See INSOLVENT.
Although one of two executors or
trustees may sue the other exe-
cutor or trustee for contribution
in respect of a breach of trust
without making the cestuis que
trust parties to the suit, yet where
such cestuis que trust have par-
ticipated in the breach of trust,
they are necessary parties. Jesse
v. Bennett.
Page 609
1. A donee of a power of appoint-
ment by deed or will appointed by
deed the whole fee, reserving a
power of revocation and new ap-
pointment, exercisable by deed.
By a subsequent deed she re-
voked the uses, trusts and powers
limited and appointed by the for-
mer appointment, and appointed
the whole fee, reserving a power
of revocation and new appoint-
ment, exercisable by deed. By a
third deed she revoked the uses,
trusts and powers limited and ap-
pointed by the last appointment,
but declared no new uses :-Held,
that she had not by these deeds
precluded herself from exercis-
ing the original power by way
of testamentary appointment.
A power is not necessarily exhausted
by a revocable appointment, and
if such an appointment is revoked
without having been acted upon,
the power is generally, if not
universally, still exercisable.
A power of appointment by deed or
will is a single power.
A power of revocation and new
appointment confers two distinct
powers which may be exercised at
different times. Montague v. Kaler
(8 Exch. 507) approved of. Evans
v. Saunders.
Page 654
2. A donee of a power of appoint-
ment over a gross sum of money
which in default of appointment
was to be divided equally among
her children, appointed a specific
sum which she described as being
"part
of" the gross sum; but she
did not make any appointment of
the residue. The gross sum prov-
ing deficient :-Held, that the spe-
cific sum appointed was to be paid
in full, and not rateably out of the
deficient gross sum. Booth v.
Alington.
Page 613
See APPOINTMENT.
On an inquiry directed at the hearing
the chief clerk certified that the
advance of the 2,000l. was a gift
and not a loan :-Held, that what-
ever effect this certificate might
have on the hearing on further
consideration, it could not be dis-
puted by a party who had neither
taken out a summons nor moved
to have it varied. Smith v. Arm-
strong.
Page 150
See BANKRUPTCY, 7.
INFANT.
PRECATORY WORDS.
See WILL, 2.
PRESENTATION.
See ADVOWSON.
PRESUMPTION.
See EVIDENCE.
UNDUE INFLUENCE.
PRINCIPAL AND SURETY.
Indorsees of bills of exchange as a
security for a floating balance due
on the accounts between them and
the drawer had notice that the ac-
ceptor was a surety for the drawer.
They afterwards entered into an
agreement with the latter that the
existing debt should be liquidated
by the drawer building for them
certain ships, and should, in the
meantime, be secured by a policy
of assurance :-Held, 1. That time
was thus given to the principal
debtor, and that the surety was
released in equity, if not at law
also. 2. That a creditor who
holds a floating guarantee from a
surety cannot, without the surety's
consent, give time to the principal
debtor as to a portion of the debt,
without reserving the creditor's
rights against the surety, and yet
hold the surety liable for that
portion. 3. That whether the
acceptor could or could not use,
by way of defence to
tion by the holders of the bills,
the giving of time by them to the
drawer, he was not bound to do
so, but might (at the risk of costs)
defend the action on other grounds,
and also institute a suit for equit-
able relief and an injunction to
restrain the proceedings at law,
though if the matter had been
pleaded at law, and the court of
law had adjudicated on the plea,
the case might have been different.
Davies v. Stainbank. Page 679
See BANKRUPTCY, 8, 9.
PRIORITY.
See JUDGMENT, 1, 2, 3.
PROCESS.
See BANKRUPTCY, 14.
See BANKRUPTCY, 10, 11, 12, 13.
PROTECTION.
See BANKRUPTCY, 14.
PUBLIC BODY.
See PUBLIC HEALTH.
PUBLIC COMPANY.
See STATUTES, CONSTRUCTION of.
WINDING-UP Acts, 1, 2.
PUBLIC HEALTH.
Under the 45th, 46th and 145th
sections of the "Public Health
Act, 1848," providing that the
local boards may make necessary
sewers through or under any lands
whatever, and cause them to be
emptied into such places as may
be fit and necessary, provided that
nothing in the act shall authorize
the boards to use, injure or inter-
fere with any watercourse, stream,
river, &c. in which the owner of
any lands may be interested, with-
out the consent of such owner :—
Held, 1. That persons having a
right to watering-places in a river
adjoining their lands for the use
of their cattle, are interested in
the river within the meaning of
the proviso, but would not be able
to maintain an action for an inter-
ference with their rights, unless
they were injured by such inter-
ference. 2. That works of a
Local Board of Health producing
an outfall of the sewage of a town
above such a watering-place was
such an interference as to cause
injury to the landowners, but that
whether this was established or
not, it ought (if not consented to
by them) to be restrained by in-
junction, being the act of a public
body exceeding its powers. 3. By
Cresswell and Williams, Js., dubi-
tante Turner, L. J., that a right of
fishing is within the term "land"
according to the interpretation
clause of the Public Health Act,
1848. Oldaker v. Hunt. Page 376
PUBLIC POLICY.
See SOLICITOR.
PURCHASER.
See JUDGMENT, 3.
PURCHASE, WORDS OF.
See WILL, 5.
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