Page 22 11. A. and B. are traders; they employ an attorney, who is likewise employed by D., a creditor of their firm, and who afterwards becomes petitioning creditor under a commission of bankrupt issued against them. The attorney advises A., B., & C., to become bankrupts; and, in order to procure an act of bankruptcy, he takes D. with him to the respective houses of A., B., & C.,; having first concerted with them that they should respectively deny themselves when D. called. Held, that although D. was not privy to such denial, yet, inasmuch as the attorney was the agent of D. as well as of A., B., and C., and accompanied him for the purpose of procuring such denials; such denials were fraudulent acts of bankruptcy, and could not support a commission on which D. stood as the petitioning creditor. Prosser v. Smith. 442 12. A trader may make a transfer of his goods, on the eve of bankruptcy, to a creditor who compels him so to do by any threat; but a voluntary and fraudulent preference is an act moving from the trader, whereby he elects to favour a particular creditor. Reed v. Ayton. 503 13. An attorney who becomes a general depository of the money of his clients, and of other persous, which he invests upon securities, charging, in addition to his fees for preparing the securities, a compensation (no matter by what name) and who unites this occupation with the business of a conveyancer, &c. is a trader within the meaning of the bankrupt laws. Hutchinson v. Gascoigne. 507 14. Where the defendant pleads his certificate in bar, the plaintiff is at liberty to give evidence of gaming at Nisi Prius, in order to vitiate the certificate. The 12th and 7th section of the 5th Geo. II. c. 30. are to be construed as if they were incorporated. But the plaintiff must confine his evidence to one act, and elect whether he will give evidence of one loss, amounting to 5l., or of several losses, amounting to 100%. Hughes v. Morley. Page 520 15. Goods sent to a trader upon sale and return, in the common acceptation of that mode of dealing, will pass to his assignees, under the statute of 21 James I. Gibson v. Bray. 556 16. Where the creditor acts adverse to the views and wishes of the trader, and by urgency and importunity obtains a transfer of property, to cover his liability upon a bill then running, (which bill he had discounted), although such transfer be made on the eve of bankruptcy, it will not be a fraudulent preference on the part of the trader. Arbouin v. Hanbury. 1. A promise by letter to accept a non-existing bill is no acceptance of a bill when drawn, unless it be communicated to the person who is to receive the bill, and who is thereby induced to take it. An acceptance is as valid by parole as by writing; and a conditional acceptance is as effectual as an absolute one, if the condition be complied with. Miln v. Prest. Page 181 2. In an action by the indorsee of a bill of exchange against the acceptor, it appeared that, after action brought, and notice of trial, the bill, which was indorsed in blank, had been lost. Held that, although the bill had been drawn more than six years, the plaintiff was not entitled to recover without producing it at the trial. Poole v. Smith. 144 3. The holder of a bill of exchange, which is returned dishonoured, is not bound to send notice to the drawer by the mail, or first conveyance that sets out from the place where such holder resides. It is sufficient, provided there be no essential delay, if he send notice by a private hand; and although such notice should thereby reach the drawer later in the day than if it had been sent by the mail, he will not on that account be discharged. Notice of the dishonour of a bill of exchange given at the counting-house of a merchant or manufacturer, between the hours of six and seven in the evening, is not too late. Bancroft v. Hall. 476 4. A banker's promissory note is made payable at Tunbridge, and likewise at London, The holder has a right to present it at either place; and if payment be refused in London, it is no defence on the part of those who contend that the 6. A. in London, acts as the agent of B. and Co. at Paris, for a small commission upon their general business. B. and Co. request 4. to remit them a bill on Portugal, which A. accordingly does, and indorses it. The indorsement being without qualification, A. is liable upon the bill, in an action brought against him by B. and Co. If a bill be drawn payable at so many days after sight, there is no fixed time when it shall be presented to the drawer; and it may be put into general circulation by the holder without a previous presentment. Semble, that a presentment must, notwithstanding, be made within a reasonable time. Goupy v. Harden. 342 7. In an action against the acceptor of a bill of exchange, made payable at a particular place, by a memorandum at the foot of the bill, it is not necessary to prove a presentment, or demand at that place, but the acceptor is generally and universally liable. Head v. Sewell. 363 BILL OF LADING, 4. has some rum in the West India Docks, which he sells to B. The rum is to be shipped by A. in a vessel chartered by B. Before the rum is delivered on board the vessel, B. gets a bill of lading from the captain; he then sells the rum in question to C., who pays B. for it upon an indorsement of the bill of lading. A. being unpaid, and suspecting the solvency of B., takes some part of the rum forcibly from out of the vessel, and countermands the delivery of the rest. In trover by C. against A. to recover the rum, Held, that C. gained no good title under the bill of lading, such bill being fraudulent, inasmuch as B. procured it to be signed by the captain before the rum was delivered on board the ship. Osey v. Gardner. Page BUILDING ACT. 405 Parties may come to an agreement to dispense with the formalities of the building act. If the occupier of premises, the owner of the improved rent of which is liable to the rebuilding of a partywall, voluntarily assumes the responsibility by a promise, not in writing, there is a sufficient consideration to support an action on such promise resulting from his occupation of the adjoining premises; and this is evidence to be left to the jury that he is owner of the improved rent, especially in a case where there is evidence of his having subsequently offered his lease to sale for a sum of money in gross. Stewart v. Smith. 321 BREACH OF PROMISE OF In an action against a woman, for a breach of promise of marriage, it is a sufficient justification for nonperformance, if the person to whom she has given the promise, turn out, upon inquiry, to be a man of bad character; but mere accusation and suspicion are not sufficient. The charges which she makes against him must, if capa ble of proof, be substantiated, or they go only to the damages. Baddeley v. Mortlock. Page 151 BROKER, See PRINCIPAL AND AGENT. IN SURANCE, 10. 1. It is not necessary that a bro ker should insert the name of his principal in a contract which he makes for him. It is sufficient, if, upon a demand of his contractbook, he be ready to produce it, and the name of his principal be recorded there. Semble, if a broker make a contract contrary to the regulations of the city of London, and in violation of the bond into which he has entered with the mayor, aldermen, &c., he is not, therefore, disqualified from bringing an action on a contract so made in contravention of his duties under the bond. The remedy against him, is an action for the penalty of the bond, and the contract is not ipso facto void. The course of dealing beween the principal and the broker may authorise the latter to make contracts for the principal, in his, (the broker's,) own name, which will bind the principal to a performance. Kemble v. Atkins. 427 2. An insurance broker is not enti tled, upon the ground of any usage of trade, to a commission of 12 per cent, on the balances which he pays over to the underwriters who employ him. Such allowance, however general it has been, is a gratuity merely, and not a demand of right; nor can it be claimed, but upon the footing of contract, either express or implied, between the parties. Levi v. Barns. P. 412 3. A. is employed by B. and Co. as their broker. He sells goods, the property of his principals, lying in the London docks, to C., and draws a bill of exchange in his own name, which C. accepts for the amount, and pays. A. becomes a bankrupt; B. and C. disavow the transaction, and call upon C. for payment. C. refuses to pay, alleging that he had already paid the broker, and brings trover for the goods against B. and Co. and the treasurer of the London docks. Held that, inasmuch as B. and Co. had suffered their broker, upon some occasions, to draw bills in his own name, without mention of them as his principals, they were bound by the payIment which had been made to him by C. in the present case; that the action will lay against B. and Co., but that the treasurer of the Dock company was entitled to an acquittal. Townsend v. Inglis. C. CARRIER, 278 See STOPPAGE IN TRANSITU, 4. 1. Though a carrier may, by law, limit his responsibility, a notice of certain limitations on his general liability, suspended at the termini of his journey, will not attach See ACTION. See COVENANT, 1, 2. A. charters a vessel, and covenants to supply a full and sufficient cargo of certain commodities, (describing them ;) and, amongst others, of cotton, the freight of which was to be paid for, at certain prices per lb. for round bales, and different prices for square or compressed bales. He furnishes a cargo of compressed bales of cotton, but neglects to have the cotton re-compressed, according to the usage of the trade, and the custom of the country whence it was imported. In consequence of this omission, the vessel has not a full and sufficient cargo, as estimated upon the bales if they had been re-compressed; though her cargo would have been full and sufficient, if the cotton had been stowed only in a compressed state. Held, that A. was liable for dead freight, and that it was his duty to have furnished the cotton in recompressed bales, notwithstanding the words of the charter-party. Benson v. Schneider. Page 416 COVENANT. 1. In an action of covenant on a charter-party, in which the defendant covenanted "that the vessel should be sufficiently furnished with every thing necessary and needful for the voyage in question," which was to Cagliari, in Sardinia.-Held, that it was her duty to leave a bill of health on board; and the plaintiff having been put to great inconvenience and expence on account of the ship not being provided with such document, that the defendant was responsible for the loss occasioned thereby. Levy v. Costerton. 167 2. In an action of covenant upon a charter-party for freight, it is no defence that the plaintiff received part of the freight in money from the defendant's agent abroad, and the residue in a bill (without the privity of the defendants) drawn by the agent upon, and accepted by, certain merchants at London; and which bill was afterwards dishonoured upon the insolvency of the drawer and acceptors. But the defendants are still bound to pay the freight owing to the plaintiff; and such bill is not to be deemed payment, though defendants were not informed of the transaction until after the failure of the parties to it. Marsh v. Pedder. 3. Where freehold premises are upon lease, and there are several interests, viz. tenant for life, remainder in tail, and the reversion in fee; and there is a breach of covenant 72 |