N. Y. Superior Court.-Ayres, &c., v. Trustees, &c.

virtually adopted that construction of the statutes which we have supposed that their terms necessarily import. And that the revisers, by incorporating the provisions of the acts to which we refer, in a separate article, in the title relative to the nature and qualities of estates in real property, have clearly shown that they regarded them as exceptions to the general rules, which that title was meant to establish. (2 R. S., 3d ed., p. 23.)

We shall not pursue remarks which, although they are far from having exhausted a subject of wide extent and deep interest, have led us further than we intended, but shall proceed to state briefly the result of our opinion. As we have declared that the devise to the Trustees of the Methodist Charch, and the trust annexed to it, are illegal and void, it is a necessary consequence that the direction to the executors to accumulate the residue of the personal, and the rents. and profits of the real estate, for the purpose of building a house upon the lot in Brooklyn, cannot be supported. That direction could only have been sustained as ancillary to the principal trust, and therefore a constituent part of a valid charitable use. Separated from the trust, it is clearly void, not only from the failure of its object, but as directing an accumulation for a purpose not authorized by law, and as involving an indefinite suspense of the power of alienation.

A decree must be entered in conformity to the views we have expressed, declaring that the devise of the lots in New-York and Brooklyn, is absolutely void, and that the property devised has descended to the heirs at law as in a case of entire intestacy; also that the next of kin and heirs at law are entitled to the accumulated fund in the hands of the executors, directing a reference to a suitable person to take the accounts and to ascertain and report who are entitled to take as next of kin and heirs at law, and in what proportions, and reserving all further directions until the coming in of the report. The taxable costs of all the parties, and the reasonable counsel fees of the executors, are to be paid out of the funds in their hands, and as they have acted in good faith, they are also to be allowed the usual commissions upon the sums received and expended by them, including those arising from the real estate.

SELECTIONS FROM RECENT ENGLISH DECISIONS.

House of Lords.

BARNES V. PENNELL, and others-July 12, 13 and 16, 1849.

JOINT STOCK COMPANY-SETTING ASIDE TRANSFER OF SHARES MISREPRESENTATION OF SUCCESS OF COMPANY.

Upon appeal from the Court of Sessions of Scotland, held, that in order to entitle a purchaser of shares in a joint-stock company to have the transfer set aside, he must show that false representations as to the prospects and success of the company were made either by the

House of Lords.-Barnes v. Pennell and others.

directors or by some authorized person; and that a mis-statement by the law agent employed only to recover the debts, was insufficient to support a charge of fraud.

Semble, (per Lord BROUGHAM,) that a mere miscalculation of profits will not support a charge of fraud.

THE Forth Marine Insurance Company was formed in 1839, and the capital stock was settled at 100,000l., in 4000 shares of 251. each, 107. of which was to be paid on commencing business, and the remainder at such periods and in such instalments as the directors should appoint. Large dividends had been declared, but in 1842, the losses being very great, it was found necessary to make a call of 27. 10s. per share. In the same year a Mr. Mackenzie, clerk to the appellant, held 50 shares which he had purchased in 1841, for 1627. 10s., but had only paid at the rate of 27. 10s. per share, which he thought was the call made. Upon the application of the directors he did not pay the residue, but the appellant paid the call on a transfer to him of the shares after having called on the company's law-agent, and been shown their balance sheet and the report of their affairs. The company, in consequence of further losses, were again compelled to make another call of 5l. per share, and in 1843, of the remaining 151. per share. The appellant refused to pay these calls, suspecting that the representations made as to the prosperity of the company by their law-agent were untrue, whereupon the directors brought an action for the recovery thereof. The appellant then brought a counter-action against the company, to set aside the sale and transfer of the shares, on the ground of fraudulent misrepresentations of the success of the company on the part of the directors and their officers. The actions having been ordered to be conjoined, were heard by the Lord Ordinary, who pronounced an interlocutor, finding that the appellant's statement was relevant to the conclusions of his action, and disallowing the company's defence. Whereupon they presented a reclaiming note to that finding, to the first division. of the court, who found that there was no averment in the record relevant to set aside the transaction by which the appellant became a partner, or to liberate him from the obligations by reason of his shares, and in the other action by the company decreed against the appellant with costs. The company having become bankrupt, the London official assignee and the creditors' assignees had been substituted for the company, and were the respondents to this appeal, which was presented against the two interlocutors.

The Attorney-General and Mr. J. Anderson, for the appellant.

Rolt and Inglis, for the respondents.

16th July, Lord CAMPBELL, in moving the judgment of the house, said, that the whole case depended on the question whether there was such a fraudulent representation as would relieve the appellant from the contract he had entered into, and such fraud must be shown

In Chancery.-Sainter v. Ferguson.

to have been committed by a party whose conduct would bind the company. The law agent of the company, which was equivalent to the solicitor in England, had made certain misrepresentations of the success of the company, but as he had simply been employed to demand and sue for the company's debts, it was clear he was not in that capacity authorized to make any representations. Then on the question that the law-agent being a partner in the company which was joint-stock and unincorporated, bound the remaining partners as an ordinary partnership,-this company was altogether different to a common partnership, inasmuch as the power of making contracts and transacting the business was vested in the directors and not in the individual shareholders. It was, therefore, immaterial whether the company was incorporated or not. The appellant must have known that the law agent was not one of the directors and that he was only employed to recover the debts. There did not appear to be any sufficient allegations sustained to connect with the directors, the fraud imputed to them, of making false representations in order to raise the price of the stock, or that any such fraud had been committed. It might have been imprudent to have declared the dividends, but they were paid out of the premiums received up to those periods, and not out of the capital stock, nor with a view to increasing the price of shares. The appellant had, as he admitted, been cognizant of the demands on the company before the purchase, and had shown a want of caution, and was, therefore, not entitled to be released from his liability in respect of the shares.

Lord BROUGHAM said, that it was not sufficient to show a mere miscalculation of profits to support a charge of fraud, and that, therefore, the judgment of the court below should be affirmed, citing Harris v. Kemble, 2 Dow. & C. 463.

The other peers present having concurred, the appeal was dismissed with costs.

In Chancery.

Before Lord Chancellor COTTENHAM.

SAINTER V. FERGUSON, 5th Nov. 1849.

INJUNCTION-RESTRAINT OF PRACTICE-EFFECT OF

LIQUIDATED DAMAGES ON AGREEMENT.

VERDICT FOR

Held (reversing the order of Vice-Chancellor Knight Bruce) that, where the plaintiff, a Surgeon employs the defendant as his assistant under an agreement that the defendant was not to practise as a Surgeon in the town or within seven miles thereof, under a penalty of £500, and the plaintiff has recovered the £500 as liquidated damages by such verdict at law, the contract between the parties is at an end, and an injunction restraining such practising was dissolved.

Semble, an injunction will only be granted in aid of a legal right, where such right has been established at law and continues to exist.

THE plaintiff, Joseph Dendy Sainter, a surgeon at Macclesfield, had

Queen's Bench.-Freeman v. Rosher.

entered into an agreement with the defendant on the 12th April, 1848, whereby, in consideration that the plaintiff engaged the defendant as assistant, the said defendant promised that he would not at any time practise at Macclesfield, or within seven miles thereof. The defendant having been dismissed from the plaintiff's employment for misconduct, commenced practice as a surgeon at Macclesfield. A motion for an injunction had been made to the Vice-Chancellor Knight Bruce, but refused on the ground of an action then pending, and an appeal from this decision had been dismissed with costs. At the trial of the action for breach of covenant, a verdict passed for the plaintiff, damages £500, and the Court of Common Pleas directed them to be considered as liquidated damages. (7 N. Y. Leg. Obs. 198.) The motion for an injunction was thereupon renewed, the legal right having been established, and was granted. This appeal was therefore presented from that order.

Bacon and Lewin, for the appellant, cited Woodward v. Gyles, 2 Vern. 119; Lowe v. Peers, 4 Burr. 2225; French v. Macale, 1 Conn. & L. 459; 2 Dru. & W. 269.

J. Russell for the respondent.

THE LORD CHANCELLOR said that the damages being in the nature of liquidated damages had incorporated the agreement into the verdict and that therefore it was at an end between the parties. The defendant had purchased a right to practise at Macclesfield, in consideration of the £500 liquidated damages, and this court could not restrain him from so practising. There had been no case mentioned in the argument, in which an injunction had been granted to aid a legal contract after it had ceased to exist, and in the absence of such precedent this court must act upon the ordinary principle of only granting an injunction in aid of a legal right, where such right had been established at law, and continued to exist. The order of the court below must be, therefore, reversed.

Court of Queen's Bench.

Before the Four Judges.

FREEMAN V. ROSHER.-May 22d, 1849.

TRESPASS-FIXTURES-AUTHORITY

TO BROKER.

In an action of trespass, quare clausum fregit, the defendant pleaded not guilty. On the trial it appeared that the defendant had authorized a broker, under a distress warrant, to seize goods and chattels, and the broker had pulled down and sold fixtures, paying the proceeds to the defendant, who acknowledged the receipt thereof, without, however, notice of the trespass. Held, that the defendant was not liable for the tresspass, and the verdict was entered

for him.

THIS was an action of tresspass quare clausum fregit, to which the de

Common Pleas.-Hopwood v. Thorn.

fendant pleaded not guilty. It appeared that the defendant had signed a warrant authorizing a broker to seize the plaintiff's goods and chattels, and that the broker had pulled down the plaintiff's fixtures in the belief that they were the chattels which he was authorized to seize. This was the trespass complained of. The defendant had given a receipt to the broker for the money produced by the sale of the fixtures. A rule nisi had been obtained to enter the verdict for the defendant.

BY THE COURT. The authority given by the defendant to the broker, was to seize goods and chattels and not fixtures; and, therefore, the defendant had not given any authority prior to the seizure. As it has not been shown that the defendant upon signing the receipt for the proceeds of the sale, had notice of any trespass, the mere receipt of the money does not amount to an adoption of the act of the broker as the defendant's agent. There was, consequently, nothing to render the defendant liable, except the distress warrant and the receipt, and the rule must, therefore, be absolute to enter the verdict for the defendant.

Court of Common Pleas.

Before the Four Judges.

HOPWOOD V. THORN-25th June, 1849.

SLANDER, VERBAL AND WRITTEN.

The words in an action of slander in respect of business transactions, and the improper conduct imputed not being stated, held not actionable. Held, also, that letters to a party who had, with the plaintiff's consent, undertaken to investigate the charges against the plaintiff, were privileged, and that therefore words therein were not actionable.

A rule nisi had been obtained upon leave reserved calling upon plaintiff, a dissenting minister, at Thatcham, and formerly in partnership as a draper with the defendant, his brother-in-law, at Southampton, to show cause why a nonsuit should not be entered in this action or why judgment should not be arrested or a new trial had. The action was to recover damages for slander, verbal and written and a verdict was found for the plaintiff for £150, on the 1st and 2d counts, and £100 on the 5th and 6th. The words charged were "He is a rogue, and I can prove him to be so by his books. He pretends to have been as good as a father to his brother-in-law, but he has cheated him of £2,000. You will see what a father he has been. I will expose him so that he cannot appear again in the pulpit. I wonder how any respectable person can countenance him." It was proved that the attendance at the plaintiff's chapel had diminished in consequence of the words spoken.