Held by the Court of Queen's Bench (Erle J. dissentiente), that the Company could be compelled by Mandamus to complete the entire line, so far as was practicable; and that it was no answer that such uncompleted line would be superfluous, inconvenient, or unremunerative, or that the funds of the Company would, in all reasonable probability, be insufficient.

Held by the Exchequer Chamber that the statutes gave a power to the Company, but did not oblige them to make the railway. That they contained no implied contract between the Company and the landowners along the proposed line, that the railway should be made; and that the Company, by making part of the line, had not thereby put themselves under an obligation to make the remainder.

In Regina v. Lancashire and Yorkshire Railway Company, a mandamus was issued against the defendants to compel the performance of the contract with the public and the landowners, made binding by their Act of Parliament. They made a return to the Mandamus, merely alleging that they had taken no step, either by purchase of lands or otherwise, for making the railway; and this was held to be insufficient.

In Regina v. Ambergate, Nottingham, and Boston Railway Company, the defendants, in return to a Mandamus to complete a railway pursuant to their Act of Parliament, incorporating the "Lands Clauses Consolidation Act, 1845," (the stat. 8 & 9 Vict. c. 18.), stated (inter alia) that the undertaking was one to be carried into effect by means of a capital to be subscribed by the promoters, and that the capital had not been subscribed for under a contract pursuant to § 16. of the last-named Act, nor could the defendants then, or at any other time, procure it to be subscribed for. And the Court of Queen's Bench held that the return was good, as it showed that a compliance with the command in the writ, which would necessitate the exercise of the compulsory powers, would be illegal.

14. TALLIS V. TALLIS. 1 E. & B. 391.

Restraint of Trade—What an unreasonable Covenant.

The plaintiff and defendant had carried on the trade of publishers in partnership; a part of their trade, called the Canvassing Trade, consisting in publishing books in numbers, and employing travellers to sell them by canvassing for purchasers. By indenture of dissolution reciting these facts, it was agreed that plaintiff should

retain the whole of the partnership stock, and should indemnify defendant against all liabilities, and pay him a large sum of money. Defendant (inter alia) covenanted, not directly or indirectly, to be concerned in the canvassing trade in London or within 150 miles of the General Post Office, nor in Dublin or Edinburgh, or within 50 miles of either, nor in any town in Great Britain or Ireland, in which plaintiff or his successors might at the time have an establishment, or might have had one within the six months preceding. In an action brought on this indenture, the breaches laid in the declaration were, that the defendant was engaged in the trade within 150 miles of the General Post Office, and also in Manchester and Liverpool, where the plaintiff, at the time of the breaches, had establishments.

Held by the Court of Queen's Bench, that the restraint was reasonable, although it extended to works other than those published by the plaintiff, and to places where the plaintiff had no establishment or place of business.

Contracts in restraint of trade are now construed by the Courts more liberally than they were in former times. In the leading case of Mitchel v. Reynolds, commented on in 1 Smith's Leading Cases, 171., it was laid down that the Court must see that the contract was made upon adequate consideration; but in Hitchcock v. Coker, 6 Ad. & Ellis, 438., it was held, the only question as to consideration was, whether it was a legal one of value, without reference to the quantum of that value, With regard to time, it was in the latter case held that the restriction might be unlimited; and with respect to space, it has been held in a variety of cases, which are cited in the notes to Smith's Leading Cases, that hardly any definite limit is unreasonable, provided it be necessary for the protection of the party requiring it. Thus, whilst the area of exclusion in the case of publicans and beer-shop keepers may be limited to one mile with perfect safety to the successor in the business sold, it has been held valid for a solicitor to exclude himself from practice in any part of the kingdom. Whittaker v. Howe, 3 Beav. 383.; Nicholls v. Stretton, 10 Q. B. 346.

15. HUBBERSTY AND ANOTHER v. WARD. 8 Exch. 330. LAVERONI v. DRURY. 8 Exch. 166.

Shipping - Bill of Lading — Authority of Master-Liability of Owner - Damage by Rats.

Hubbersty v. Ward was an action of trover for 145 quarters of wheat. The plaintiffs were merchants at Hull, and the defendant

the owner of the sloop "Celerity," of which one Simpkin was master. In April, 1852, one Potterill undertook to load the "Celerity" with wheat for Antwerp, and put on board, in the first instance, 2291 quarters, for which Simpkin signed a bill of lading in favour of Hans and Co., who had made advances to Potterill. On the 13th April, Potterill put on board 75 quarters more, for which Simpkin also signed a bill of lading in favour of Potterill, who immediately endorsed it to the plaintiffs, to secure an advance from the plaintiffs upon it. A few days afterwards Potterill shipped 70 quarters more, and obtained a similar bill of lading, which was also endorsed to plaintiffs for further advances. After this transaction Potterill applied also to Hans and Co. for an advance upon the two parcels of 75 and 70 quarters; and Simpkin, at Potterill's request, erroneously signed a further bill of lading for 145 quarters, as shipped by Hans and Co.; and the whole cargo was subsequently delivered under the two bills of lading for 229 and 145 quarters. Held by the Court of Exchequer, that the plaintiffs were entitled to recover, on the bills of lading for 75 and 70 quarters; the master having no authority to sign the bill of lading for 145 quarters, the goods not having been actually shipped.

Laveroni v. Drury. This was an action for damages sustained by injury to a certain quantity of Parmesan cheese, shipped by the plaintiff in the defendant's ship, "Anne Sophia," from Genoa to London. The goods were shipped under bills of lading, which were for the purposes of the case assumed to be in the ordinary English form, and the loss was proved to have been occasioned by rats during the voyage, although it was also proved that there were two cats on board. Held by the Court of Exchequer, tha the damage not being within any of the exceptions in the bills of lading, the defendants were like common carriers liable for the loss.

16. WILSON v. ZULUETA.

14 Q. B. 405. - HOLMES v. SIXSMITH. 7 Exch. 802.

Stamp-Agreement ·

Evidence from, when unstamped.

Wilson v. Zulueta was an action for breach of an agreement to hire plaintiff as stoker from England to Havana, at 57. per month wages, and 21. per month for provisions (rations to be served out on the outward voyage); the agreement to be in force for one year, and plaintiff to be paid three months' wages if discharged before that time. Held, 1st, that the agreement did not require a

stamp, being within the exemption, "memorandum or agreement for the hire of any labourer," in statute 55 G. III. c. 184. Schedule, part 1. tit. Agreement.

2nd. That defendant was liable for not serving out rations, by discharge of plaintiff before he arrived at Havana, and by the nonpayment of three months' wages in advance. (Downman & Williams, 7 Q. B. 103., and the authorities there cited.)

In Holmes v. Sixsmith the action was brought to recover 100l. deposited with the defendant as stakeholder. The plaintiff entered into a written agreement with a third party to race their horses upon certain terms; and he deposited the amount of his stake with the defendant. The race was run, and the plaintiff's horse was beaten; but he afterwards discovered that the whole transaction was a concocted fraud, and gave notice to the defendant not to pay over the money. Held, on the authority of R. v. Gompertz (9 Q. B. 824.), and Coppock v. Bower (4 M. & W. 361.), that the written instrument, although unstamped, was properly admitted in evidence in proof of the fraud.

17. MACDOUGALL v. PATERSON. 11 Com. Bench, 755.

Statute-Discretionary and imperative Powers under.

The 13th and 14th Vict. c. 61. s. 13. provides, that if in certain actions brought in the Superior Courts for sums less than 20%. the plaintiff shall make it appear to the Court or a Judge that the action was brought for a cause in which concurrent jurisdiction is given to the Superior Courts, or for which no plaint could be entered in the County Court, &c., thereupon the Superior Court or a Judge may direct that the plaintiff shall recover his costs. Held by the Court of Common Pleas, upon the authority of Rex v. Barlow, 2 Sal. 609.; Backwell's case, 1 Vern. 152.; Reg. v. Tithe Commissioners, 14 Q. B. Rep. 459.; and, contrary to Jones v. Harrison, 6 Exch. 328., that the statute conferred upon the Court and Judges a power, the exercise of which depended not upon the discretion of the Court or Judge, but upon the proof of the particular case out of which such power arises.

220

POSTSCRIPT.

CHARITY TRUSTS ACT.

AT LENGTH we have this important measure carried, the new jurisdiction created, and its functionaries appointed. Great praise is due to the Lord Chancellor for his determination that it should no longer be postponed, and for the mingled firmness and conciliation with which he presided over the progress of the Bill. The members of the late Government are also well entitled to our thanks for the able assistance which they gave, and the valuable improvements which they effected upon the measure in the Local Committee. Ample testimony has been borne to their merits by Lord Brougham', a member of that Committee, and who must be presumed to have jealously watched the conduct of the business, as the subject had originated with himself. We observe, however, that he complains much of the delay which has attended the passing of this Bill. It might just as easily have been passed in 1846, the year after Lord Lyndhurst brought it in; and in that year it assuredly would have passed but for the factious proceedings which made one party oppose the Bill in order to punish its authors for having repealed the Corn Law, and another in order to shake the Ministry of their antagonists, neither party having probably the least dislike of the Bill, but both, for opposite reasons, disliking its authors, one wishing to turn them out, the other wishing to take their places. The result of this proceeding has been, that seven years have been wholly lost, during which a great part of the abuses prevailing in the thirty thousand existing charities might have been extirpated, and, what is of still greater moment, the more useful application provided of the vast funds at present in very many cases uselessly, and in not a few hurtfully employed. That property has been estimated at a million and a half yearly income, and the estimate is undoubtedly below the real amount, inasmuch as, notwithstanding all the exemptions from the inquiries of the former Commissions (exemptions including the universities, great schools, and cathedral and collegiate bodies), the income reputed was £1,600,000, notwithstanding all the malversation and mismanagement by which it was cut down.

But it is needless to repine at the most unnecessary post

'Letter to Lord Denman, antè, p. 155. in this Number.