GAMING AND WAGERING. medy by way of penalty. Thirdly, that there was no variance by reason of the first count describing the ferry generally from North Shields to South Shields, and not from one particular terminus to another. Fourthly, that the mere act of ferrying passengers was a disturbance of the franchise, although the franchise was not of a prescriptive ferry, to the exclusion of all private boats, but simply of a ferry. Fifthly, that, on the purchase of the ancient ferry and completion of the new ferry, the former became extinct by operation of the act of Parliament. The North and South Shields Ferry Company v. Barker, FRAUD. See SCIRE FACIAS. 136 GAMING AND WAGERING. Contract made so by Statute, passed subsequent thereto. The 18th section of the 8 & 9 Vict. c. 109, which received the royal assent on the 8th of August, 1845, enacts, that "all contracts and agreements by way of gaming or wagering shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event upon which any washall have been made:"-Held, per ger Parke, B., Alderson, B., and Rolfe, B., (Platt, B., dissentiente), that the statute had not a retrospective operation, so as to defeat an action for a wager, commenced before the statute passed. Quaere, whether, by the first part of the section, the Legislature intended to put at once an end to the legal obligation both of existing and future In an action of assumpsit on a guarantie, the plaintiff, in support of an averment in the declaration, that he had executed a certain indenture, gave in evidence the following document, signed by the defendant:"In consideration of your having by indenture agreed to accept payment of the debt owing to you by A. B., by the following instalments: that is to say, 108. in the pound on the 18th day of August next, &c., I promise to guarantee the payment of the instalments." There was evidence, that, when A. B.'s creditors received the guarantie, they signed the deed at the same time:-Held, that, under the circumstances of the case, the true construction of the guarantie was, "that, if at some future time the plaintiff shall have released the debt, the defendant will guarantee the same to him;" and, therefore, that it did. not prove the averment in the declaration. King v. Cole, HORSE-DEALER. See ASSESSED TAX. 628 852 INCLOSURE ACT. IMMATERIAL ISSUE. See PLEADING, III. (3). INCLOSURE ACT. Construction of. Certain waste lands in the manor of Shipley, to the soil of which, and everything constituting the soil, the lord of the manor was entitled, were, by an Inclosure Act, 55 Geo. 3, c. xviii.,(which recited the lord's title), taken away from the lord and allotted to commoners, except as saved by the 32nd clause. That clause reserved to the lord all mines and minerals, of what nature or kind soever, lying and being within or under the said commons and waste grounds, in as full, ample, and beneficial a manner, to all intents and purposes, as he could or might have held and enjoyed the same in case the said act had not been made; and enacted, that he should and might at all times thereafter have, hold, win, work, and enjoy exclusively all mines and minerals, of what nature or kind soever, within and under the said commons and waste grounds, with full liberty of digging, sinking, searching for, winning, and working the said mines and minerals, and carrying away the lead ore, lead, coals, iron-stone and fossils, to be gotten thereout: provided that the lord, in the searching for and working the said mines and minerals, should keep the first layer or stratum of earth separate and apart by itself, without mixing the same with the lower strata. The 33rd section provided for reimbursement to the owners of allotments, for injury done by searching for or working the mines and minerals:Held, on error in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the reservation clause must be construed with reference to the title ofthe lord to the whole of the soil; and, inasmuch as the object of the act was to give to the commoners the surface for cultivation, and leave INSOLVENT. in the lord what it did not take away for that purpose, the word "minerals" must be understood, not in its general sense, signifying substances containing metals, but in its proper sense, as including all fossil bodies or matters dug out of mines, that is, quarries or places where anything is dug; and this notwithstanding the provision in the latter part of the clause, authorising the carrying away the "lead ore, lead, coal, iron-stone, and fossils," as fossils may apply to stones dug in quarries: therefore, that the clause reserved to the lord the right to the stratum of stone in the inclosed lands. Wainman v. The Earl of Rosse, INROLMENT, ANNUITY. INSOLVENT. 800 Protection, Final Order for, under 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96. A final order for protection under the stats. 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, not only protects the person of the insolvent, but constitutes an absolute bar to an action for the debt as to which it is a protection, and may be so pleaded. To an action of debt the defendant pleaded, that, after the passing of the 5 & 6 Vict. c. 116, and before the 7 & 8 Vict. c. 96, and before the commencement of the suit, a petition for protection from process was duly, according to the form of the statute, presented by the defendant to the Court of Bankruptcy, and afterwards filed in that court; and that thereupon, and after the passing of the said secondlymentioned act, to wit, on &c., a final order for protection and distribution was made in the matter of the said petition by J. E., Esq., a commissioner of the said Court duly authorised; and that the said debts, &c., accrued before the issuing of the said petition. A vessel was insured "at and from Liverpool to Quebec, during her stay there, and from thence back to her discharging port in the United Kingdom, and until she had moored at anchor twenty-four hours in good safety." The vessel was chartered to take on board a cargo of timber at Quebec and to proceed therewith to Wallasey Pool, in the river Mersey, or as near thereto as she could safely get, and there discharge her cargo. The vessel sailed from Quebec on the 23rd July, 1845, and arrived in the Mersey on the 4th September, and anchored at the Bell Buoy. The next morning she was towed up by a steam-boat, and came abreast of Wallasey Pool; but, being unable to enter the pool by reason of her too great draft of water, the captain anchored, and proceeded to Liverpool to report the vessel, and engaged lumpers to discharge the cargo at a fixed rate of payment, which was to include the expense of rafting the timber from the vessel into Wallasey Pool, and discharged his crew, as was usual on a ship's arrivel at Liverpool. He then proceeded to discharge the deck cargo, and afterwards a considerable portion of the other cargo, by the usual JOINT-STOCK COMPANY. 853 mode, at the stern port; and after occupying in this way several days, the ship, on the 14th September, fell over and sustained damage. The captain always intended to take the vessel into Wallasey Pool with as much of the cargo on board as he could carry with safety-Held, that, under the above circumstances, the underwriters were not liable, the vessel having been moored in safety twenty-four hours after her arrival at her port of discharge. Whitwell v. Harrison, 127 JOINT-STOCK COMPANY. See SCIRE FACIAS. (1). Liability of Company on Contracts of Directors. Joint-stock Companies completely registered under the 7 & 8 Vict. c. 110, are bound by contracts made by a competent board of directors, though not under seal, or made in compliance with the requisites of the 44th section; though, semble, they cannot enforce such contracts. But persons seeking to render those Companies liable on contracts made with the directors must shew their authority to bind the Company, either by the production of the registered deed of settlement, or by proof that the body of shareholders authorised particular individuals to make contracts binding on the Company. A ratification or admission by a competent board of directors will bind the Company. Ridley v. The Plymouth, Stonehouse, and Devonport Grinding and Baking Company. The Kingsbridge Flour Mill Company v. Same, 711 (2). Execution against Shareholders. The return of the names of shareholders in a Joint-stock Company, pursuant to the 7 & 8 Vict. c. 110, is primâ facie evidence of the fact of the parties named in the return being A declaration, after reciting that defendant was possessed, for the residue of a term of years, of a certain messuage and premises, and also of certain fixtures annexed to the premises, averred that the plaintiff agreed with defendant to purchase of him the residue of the term of the said messuage and premises, with the appurtenances and the said fixtures, and defendant, amongst other things, agreed to give up possession of the messuage, with the appurtenances and the said fixtures, on a certain day. The declaration then averred that plaintiff tendered to defendant, for execution, an instrument which, amongst other things, contained a recital that plaintiff had lately contracted with defendant for the sale to him of the residue of the term granted to him by one J. P., in the messuage or tenements and hereditaments, &c., with their appurtenances, and also all and singular the fixtures belonging to the said messuage or tenements and hereditaments, for a certain sum, the receipt of which was thereby acknowledged-Held, on motion in arrest of judgment, that, as the agreement between the parties was for the assignment of the fixtures only, which belonged to the defendant, the recital in the instrument tendered was too large, and therefore that it was not such a one as defendant was bound to execute; and the judgment was arrested. Manning v. Bailey, 45 MALICIOUS TRESPASS ACT. LETTER. See EVIDENCE, (3). LIEN. See BANK. LUNACY. Avoidance of Contract-Annuity Inrolment. Where a person, apparently of sound mind and not known to be otherwise, enters into a contract which is fair and bonâ fide, and which is executed and completed, and the property, the subject-matter of the contract, cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic or those who represent him. 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 the affairs of human life, and fair and bonâ fide on the part of the society:-Held, that, after the death of the lunatic, his personal representatives could not recover back the premiums paid for the annuities. The grantee of an annuity cannot take advantage of the want of inrolment of a memorial, as required by the 53 Geo. 3, c. 141. Molton v. Camroux, 487 MALICIOUS TRESPASS ACT. A party who trespasses upon land, under a fair and reasonable supposition that he has a right to do the act complained of, is not liable to be apprehended, under the 28th section of the Malicious Trespass Act (7 & 8 Geo. 4, c. 30), by the owner of the property, although the latter have rea (1). False Statement. The plaintiff sold for the defendant a horse, and received the price. The purchaser afterwards rescinded the contract on the ground of fraud, and was repaid the purchase-money. In an action by the plaintiff for the keep of the horse-Held, that the defendant could not set off the price as money received for his use, it having ceased to be so when the contract was defeated by the purchaser, although the defendant was ignorant of the fraud. Any false statement knowingly made with a view to induce another to alter his condition, and thereby altering it, is a fraud in law. Murray v. Mann, 538 (2). Demand before Action. A. & Co. agreed with a certain Company to build for them two steam-ships within a stated time, the price to be paid by instalments; provided that, if A. & Co. should make default in any of the conditions of the agreement, it should be lawful for the Company to take possession of the ships, and cause the works to be completed by any persons they chose, and pay those persons such reasonable sums as agreed upon, and that A. & Co. should forthwith, on VOL. II. demand, pay the Company all sums so advanced. Afterwards F. became a partner in the firm of A. & Co., and four instalments having been paid, and A. & Co. not being able to complete the ships, another agreement was made with the firm of A. & Co., including F., whereby the Company, in terms of the first contract, arranged to take possession of the ships and complete them, and for that purpose to take into their employ the workmen of A. & Co.; and, as a security to the Company for any advances they might make beyond the balance receivable by A. & Co., it was agreed that the Company should have a lien for such balance upon certain shares of A. & Co. in the Company. The Company having proceeded with the works, and for that purpose made large advances-Held, that they could not forthwith recover such advances by action against the firm of A. & Co., including F., for money paid or money had and received, there being no liability to repay until the ultimate balance was ascertained, and then only after demand. The Royal Mail Steam-packet Company v. Acraman, 569 |