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Ex parte HARPER; Re BREMNER.
notwithstanding a prior act of bankruptcy, if they | Bremner for a judgment debt of 4051. and costs, are made by a person not having notice at the and the sheriff took possession of his goods on the time of any act of bankruptcy committed by the 1st. Dec. bankrupt and available against him for adjudi. L Proceedings under the execution were delayed cation. In the present case, it is clear that the by reason of a claim to the goods made by a third act of bankruptcy of which the appellants bad party, which was afterwards withdrawn. notice was available against the bankrupt for On the 15th Dec. Bremner filed a petition for adjudication.
liquidation of his affairs by arrangement, and a Lord Justice MELLISII.-I am of the same
receiver was appointed, who obtained an injuncopinion. The 11th section of the Act says that
tion staying the execution on giving an undertak"the bankruptcy of a debtor shall be deemed to ing as to damages. have relation back to and to commence at the time At a meeting of the creditors held on the 6th of the act of bankruptcy being completed, on
Feb. 1874, the creditors refused to pass a resoluwhich the order is made adjudging him to be
tion in favour of liquidation, and immediately bankrupt." It appears to me that in the case of
afterwards a bankruptcy petition was presented a debtor's summons that must be the expiration against Bremner, who was adjudicated a bankof the time limited after the service of the sum rupt on the 27th Feb. mons; the Legislature cannot hare meant that
The sheriff thereupon gave up possession of the the act of bankruptcy must be completed by pre
goods to the trustee in the bankruptcy, who sold sentation of a petition for adjudication. The only
them. question then is, what is the meaning of the pro
Messrs. Harper then brought an action against vision in the 95th section, protecting any payment
the sheriff for damages sustained by them in conin good faith and for valuable consideration made sequence of the sheriff having given up the goods before the date of the order of adjudication to a to the trustee. The question to be decided in the person not having notice of any act of bankruptcy
action was whether Bremner was a trader or not. committed by the bankrupt, and available against
If he were a trader the goods would belong to the him for adjudication ? The present appellants
trustee under the 87th section of the Bankruptcy had notice of such an act of bankruptcy. The
Act 1869; but if he were not a trader they would Act makes no distinction in this respect between
belong to the execution creditors under sect. 95, the act of bankruptcy defined by the 6th sub-sec.
sub-sect. 3. In the action a reference was directed tion and other acts of bankruptcy, and that being as to whether Bremner was a trader or not, and, 20 we cannot make any such distinction. The the arbitrator having decided that he was a trader, Registrar's decision is therefore quite right, and a verdict was taken for the sheriff. the appeal must be dismissed with costs.
Messrs. Harper subsequently applied to the Appeal accordingly dismissed with costs.
Court of Bankruptcy for an inquiry as to damages
under the undertaking given by the receiver; but Solicitor for the appellants, H. J. Coburn.
the registrar held that as the bankrupt was a Solicitors for the respondent, Chauntler, Crouch trader, Messrs Harper were not entitled to the and Spencer.
goods taken in execution, and refused the application.
From this decision Messrs. Harper appealed. Thursday, March 11.
De Gex, Q.C. and Robson, for the appellants, (Before the LORDS JUSTICES.)
contended that the bankrupt was not a trader, and Ex parte HARPER ; Re BREUNER
that they were therefore entitled to the goods.
Ex parte James, re Condon, 30 L. T. Rep. N. S. 773 ;
L. Rep. 9 Ch. 609; Res judicata.
Ex parte Villars, re Rogers, 30 L. T. Rep. N. S. 348 ; A creditor sued out execution against his debtor for
L. Rep. 9 Ch. 432; a debt ecceeding 501., and the sheriff took pos. Ex parte Rayner, ré Johnson, 26 L. T. Rep. N. S. session of the debtor's goods. Before sale of the
306; L. Rep. 7 Ch. 325; goods, the debtor
Pott v. Turner, 6 Bing. 702. filed a liquidation petition, under which a receiver was appointed who ob- |
Little, Q.C. and Finlay Knight, for the trustce, tained an injunction staving the execution on contended that the question of trading was res giving an undertaking for damages. The debtor | judicata and could not now be opened again. was subsequently adjudicated banlerupt, and the De Gex, Q.C., having been heard in reply, sheriff gave up the goods to the trustee in the
Lord Justice JAMES said that the objection raised bankruptcy. In an action by the execution i
on behalf of the trustee was fatal to the appellant's creditor against the sheriff it was held that the
case. The very question whether the bankrupt bankrupt was a trader, and that consequently the was a trader or not had been decided in the action trustee was entitled to the goods. The execution
at law against the sheriff. The only reason for the creditor then applied to the Court of Bankruptcy
Court of Bankruptcy interfering in such cases was for an inquiry as to damages under the under to save expense, which could be done when the taking given by the receiver :
parties submitted their rights to this court instead Held, that the matter was res judicata by the action
1 of trying them in an action at law against the at law, and that the Court of Bankruptcy could
sheriff. But as in this case the execution creditor not entertain the application.
had elected to take his remedy at law and had been This was an appeal from a decision of Mr. Registrar
defeated, he could not now try the question over Murray, sitting as Chief Judge in Bankruptcy.
again in this court. The objection to the appeal The facts of the case were shortly as follows:
was fatal, and it must be dismissed with costs. On the 29th Nov. 1873, Messrs. J. E. Harper
Lord Justice MELLISH was of the same opinion.
Lord Justice MELLIS and Company sued out execution against G. W. !
Appeal accordingly dismissed with costs.
[CHAN. Solicitors for the appellants, Harper, Broad and formal notice of this claim was served upon the Battock.
debtor's solicitors, but the claimants did not attend Solicitors for the respondent, Phelps and Sidg the meetings or take any steps to prove their wick, agents for Sale, Shipman, Seddon and Sale, claim. Manchester.
Trustees were appointed under the provisions of the 279th of the Bankruptcy Rules of 1870 for
receipt and distribution of the composition, and March 11 and 18.
the debtor borrowed from an insurance company (Before the LORDS JUSTICES.)
a sum of 26,0001., which was sufficient to pay the Ex parte CAREW ; Re CAREW.
claims of all the creditors including that of the
plaintiffs in the Chancery suit, and paid the amount Composition—Trustee appointed for receipt and distribution of composition-Balance in trustee's
over to the trustees. hands--Jurisdiction to take account as between
Out of this fund the trustees paid the comtrustee and debtor-Rights of creditors not bound
position to all the creditors who were bound by
the arrangement, and they also paid certain costs by composition-Bankruptcy Act 1869 (32 & 33 Vict. c. 71), ss. 72, 126-Bankruptcy Rules 1870,
and expenses, and retained the balance of 21481.,
which then remained in their hands, to answer rule 279. Where a trustee has been appointed under the 279th
the claim made by the plaintiffs in the Chancery
suit. of the Bankruptcy Rules 1870, for receipt and distribution of a composition, and, after all the
The debtor applied to the court for 'an order
that the trustees should pay over the balance to creditors have been paid, a balance remains in
him. the trustee's hands, the Court of Bankruptoy has jurisdiction to take an account as between the
This application was resisted by the plaintiffs in
the Chancery suit. trustee and the debtor in order to ascertain the amount of the surplus, and to order the surplus
The registrar held that he had no jurisdiction 80 ascertained to be paid over by the trustee to the
to take an account as between the debtor and the debtor.
trustees, and that, therefore, he could not makeA creditor whose claim is not mentioned in a com
the order asked for. pounding debtor's statement in such a way as to
From this decision Carew appealed. make him bound by the composition, is neverthe Winslow, Q.C. and Bradford, for the appellant. lo88 entitled to take advantage of the composi
-In Dæ parte Rumboll, Ře Taylor and Rumbolt tion.
(25 L. T. Rep. N. S. 253; L. Rep. 6 Ch. 842) it This was an appeal from a decision of Mr. Regis
was held that the Court of Bankruptcy had juris. trar Murray sitting as Chief Judge in Bank
diction under the 72nd section of the Bankruptcy ruptcy.
Act 1869 to decide all questions necessary to make The facts of the case were as follows: In May
a complete distribution under a deed of composi1874, B. F. H. Carew filed a petition for liquidation
tion registered under the Act of 1861 ; and the of his affairs by arrangement, and his creditors
jurisdiction to take such an account as is required duly resolved to accept a composition of 198. 1ld:
in the present case seems to have been recogin the pound, and also resolved that the terms of
nised in the composition should be embodied in a deed to
Ex parte Lyons, re Lyons, 26 L. T. Rep. N. S. 491 ;
L. Rep. 7 Ch. 494 ; be made between the debtor, trustees, and the
Megrath v. Gray, 30 L. T. Rop. N. S. 16; L. Rep. creditors. These resolutions were duly confirmed
9 C. P. 216; at a subsequent meeting ofthe creditors.
Ex parte Jacobs, re Jacobs, 31 L. T. Rep. N. S. 745; In the statement of affairs filed with his petition
L. Rep. 10 Ch. 211;
Ex parte The Manchester and Liverpool District the debtor stated that the executors of Lady Pigott Banking Companies, re Litller, 30 L. T. Rep. had made a claim against him for 15007. in respect N. S. 339; L. Rep. 18 Eq. 249; of an alleged breach of trust, but that he did not The 45th section of the Act provides that the admit the claim. He did not mention the names bankrupt shall be entitled to any surplus remainand addresses of the claimants, so that they were
ing after payment of his creditors, and of the costs, not bound by the composition. The following was
charges, and expenses of the bankruptcy. That the form in which he stated the claim : “Lady
section applies equally to a composition. Creditors Pigott's executors. A claim has been made upon
who are not bound by the composition have no Mr. Carew as one of the executors of his late father
right to the funds handed over to the trustees for for 11507., and interest for about twenty-five years payment of the composition. The plaintiffs in the at four per cent in respect of Lady Pigott's (Mr. Chancery suit are not bound by the composition, Carew's sister) one fourth share in the personal
and are not entitled to the benefit of it. They estate of the late Mr. Carew, to which she was
also referred to entitled by will, but which was never paid to her, Maclean v. Lord Donoughmore, 1 Dr. & W. 227; the amount having been appropriated by one of the Bankruptcy Act 1869, s. 49; co-executors. The other surviving executor is Sir Bankruptcy Rules, 1870, Rule 281. H. Stewart. The liability is not admitted, but Roxburgh, Q.C. and E. C. Willis, for the plainfor the purposes of this account it is estimated at tiffs in the Chancery suit.-Every creditor can 15001.”.
enforce a composition whether he is bound by it A suit of Pigott v. Stewart had in fact been or not. If this were not so, a debtor could exclude instituted, before the filing of the liquidation petition, from the benefit of the composition any creditor by the next friends of the infant children of Lady | by omitting his name and address from his statePigott claiming a sum of 22157. 58. 10d, against ment of affairs. We cannot be said to be interCarew and another defendant in respect of an fering with the rights of the other creditors, for alleged breach of trust.
they bare all received their composition. Before the meetings of the creditors were held, De Gex, Q.C. and F. Turner, for the trustees.
Northmore Lawrence, for other parties.
inserted for the purpose of compelling tbe debtor Winslow, Q.C. in reply.
to give an accurate description of his creditors, Lord Justice MELLISH.-In this case Mr. Carew | and was not intended to enable the debtor to filed a petition for liquidation of his affairs by exclude any creditor from the benefit of the arrangement, and his creditors duly resolved under composition by omitting him from his statement. the 126th section of the Act to accept a compo And when a subsequent clause of the same section sition of 193. 11d. in the pound, and that the terms (sect. 126) says that the provisions of any comof the composition should be embodied in a deed. position made in pursuance of this section may Mr. Carew then borrowed a large sum of money be enforced by the court on a motion made in a from an insurance company, and handed it over summary manner by any person interested, I am to the trustees chosen by the creditors to pay the of opinion that an application may be made under composition. In his statement of affairs he men that enactment, not only by those creditors who tioned a claim which had been made upon him as are bound by the composition because their names one of the executors of his late father by Lady and addresses and the amounts of their debts are Pigott's executors in respect of an alleged breach properly entered in the debtor's statement, but of trust, and he also stated that he disputed his by any creditor who would have been entitled liability, but for the purposes of the account he to prove his debt if the estate were being Estimated it at 15001. That was not such a de wound-up in bankruptcy or in liquidation. scription of the persons who claimed in respect of If no trustee had been appointed and no funds had the alleged breach of trust as that they would been paid into his hands, such a question would have been bound by the composition under the probably not have arisen, as in all probability it provision of the 126th section of the Act which would in that case not be for the advantage of a provides that “ the provisions of a composition creditor not bound by the composition to seek to accepted by an extraordinary resolution in pur- | enforce it when he might sue the debtor for the suance of this section shall be binding on all the whole amount of his debt; but if property is concreditors whose names and addresses, and the veyed to a trustee upon trust to realise, or if moncy amount of the debts due to whom, 'are shown in | is paid over to a trustee for the purpose of paying the statement of the debtor produced to the the composition, then it may possibly be for the meetings at which the resolution was passed, but benefit of creditors who are not bound by the shall not affect or prejudice the rights of any composition to come in under the composition other creditors.” Toe persons representing the rather than to seek to recover their debts by other infants did not attend the meetings of the means. Probably, if a creditor does not come in creditors, but they sent notice to Mr. Carew's at the two meetings of the creditors, it would be solicitors and to the trustees of the nature of held that he was not entitled to interfere with the their claim. The claims of the creditors whose other creditors; but as against the debtor, when debts were undisputed have been satisfied, and all the creditors bound by the composition have certain costs and expenses bave been paid, and been paid, I cannot see any good reason why a there remains a sum of upwards of 2000l. in the creditor not bound by the composition should not hands of the trustees. Mr. Carew applied to have the benefit of the money remaining in the the Court of Bankruptcy that the trustees might hands of the trustee after paying their composibe ordered to pay over to him this sum. The tion to all the creditors bound by the composition. first question raised was whether the court has He clearly would have been entitled to be paid out jurisdiction to entertain this application, and I of the money remaining in the trustee's hands if am of opinion that if the trustees have no valid this had been a case of bankruptcy or liquidation. reason why they should not pay over the surplus The court would then have postponed the matter to the debtor the court has jurisdiction to take | till the claim in the Chancery suit had been decided the accounts between the debtor and the trustees | by the Court of Chancery. I am of opinion that and to order the surplus to be paid over to the it is competent for the court to adopt the same debtor. Iam of opinion that this comes within the course in the case of a composition. It would be 72nd section of the Act, and that this is a question wrong to order the trustees to pay over to the of fact that it is necessary to decide for the purpose debtor the surplus remaining in their hands, wher: of doing complete justice or making a complete it is possible that a valid claim may be established distribution of the property within the meaning against it by a creditor. I therefore think that no of that section. The question, therefore, arises | order ought to be made on this motion, but that whether the account ought to be taken now, or we ought to await the result of the Chancery suit ought to be postponed till it has been decided by before making any order as to the surplus remainthe Court of Chancery whether the claim raised ing in the hands of the trustees. The order of the by the plaintiffs in the Chancery suit is a valid Registrar must therefore be affirmed, and the one or not. That brings me to the question really appeal must be dismissed with costs, without to be decided in this case, namely, whether any prejudice to any application by Mr. Carew after creditor not bound by the composition may never the decision of the Chancery sait. theless take advantage of the composition. I Lord Justice JAMES concurred. He said that the am of opinion that the provision of the 126th registrar might take any accounts necessary to section of the Act which declares tbat the pro ascertain what was the balance in the hands of the visions of a composition duly accepted by an trustees. extraordinary resolution shall be binding on all
Appeal accordingly dismissed with costs. the creditors whose names and addresses, and the Solicitor for the appellant, Walter Webb. amount of the debts due to whom are shown in Solicitors for the respondents, E. T. Luscombe; the debtor's statement, but shall not affect or Paine and Hammond ; E. F. and B. Davis. prejudice the rights of any other creditors, was a provision inserted for the benefit of the creditors and not for the benefit of the debtor. It was
Q. B.] Re Tie GUARDIANS OF TIE POOR OF TIIE DARLINGTON UNION-ANGELL v. Duke.
Common Law Courts.
| hension on the part of the guardians that the | money may be misappropriated by the parents.
COCKBURN, C. J.-I am of opinion that there COURT OF QUEEN'S BENCH, ought to be no rule. All that the Act was passed Reported by J. SHORTT and M. W. MCKELLAR, Esqrs., to secure was, that where parents were in a conBarristers-at-Law.
dition of pauperism, and could not find the money
to get their children educated, in order to insure Monday, April 19.
the education of the children, the guardians should Re THE GUARDIANS OF THE POOR OF THE find the money necessary for that purpose. This DARLINGTON UXION.
may be done either by paying the money to the Elementary Education Act 1873 (36 %. 37 Vict.
parents, or by paying the school fees for the C. 86), 8. 3—Payment of school fees of pauper
children, as is done here; as to adopting the children.
one course or the other, it is left in the disMoney granted under the Elementary Education
cretion of the guardians under the particular Act 1873 (36 & 37 Vict. c. 86), 8. 3, for the educa.
circumstances of each case to do what they think tion of the children of persons receiving relief out
most beneficial. There may in this particular of the workhouse, need not be paid to the parents,
instance be no danger of diversion of the money but may in the discretion of the guardians be
to other purposes; but cases might arise where directly applied in payment of the school fees.
persons of bad character, and of bad habits and
mode of life, might do so. With regard to the Manisty, Q.C. (C. Crompton with him) moved,
alleged hardship on the childen, it does not appear on behalf of a guardian and ratepayer, for a rule
to be unjust that children who are the children of calling on the auditor and the guardians of the
paupers should be looked upon as being in that poor of the Darlington Union to show cause why
position at school, just as they would be anywhere a writ of certiorari should not issue to bring up
else. the school fees account together with the allow
BLACKBURN, J.-I am entirely of the same ances and reasons for the allowances. The object
opinion. The intention of the Act is that the of this motion, which is made under 7 & 8 Vict.
guardians are to insist on the children of paupers c. 101, s. 35, is to obtain tbe decision of the court on the construction of the Elementary Education
being sent to school and educated, and, if neces
sary, are to provide the funds required for that Act (36 & 37 Vict. c. 86), s. 3, as to which a diffe
purpose, but in so doing the Act leaves them at rence of opinion has arisen among the guardians.
liberty to pursue whichever course they think fit. That section repeals Denison's Act (18 & 19 Vict. c. 34), and in lieu thereof enacts the following
MELLOR and FIELD, JJ., concurred. provisions : “Where relief out of the workhouse
Rule refused. is given by the guardians or their order by way of
Attorney, C. T. Foster. weekly or other continuing allowance to the parent of any child between five and thirteen years of age, or to any such child, it shall be a condition
Wednesday, April 21. for the continuance of such relief that elementary education in reading, writing, and arithmetic
AngelL v. DUKE. shall ” (except under certain circumstances) “be Written contract—Previous parol promise-Admisprovided for such child, and the guardians
sibility of evidence. shall give such further relief (if any) as Where a written contract has been executed, conmay be necessary for that purpose. Any such taining all the terms agreed upon between the relief to a parent as above mentioned shall not be parties, a previous parol promise relating to the granted or refused on condition of the child same subject-matter is invalid. attending any public elementary school other than Defendant let a house and furniture to plaintiff by such as may be selected by the parent. The a written agreement; evidence of a previous parol guardians shall not have power under this section promise by defendant to put in more furniture to give any relief to a parent in order to enable was tendered at the trial and rejected. such parent to pay more than the ordinary fee Held, that the rejection was right, and a rule to set payable at the school which he selects, or more aside a nonsuit refused. than one farthing for each attendance at such Mann v. Nunn (30 L. T. Rep. N. S. 526; 43 L. J. school, as defined by the minutes of the education 241, C. P.) questioned. department for the time being in force with respect The first count of the declaration stated that in to the Government grant. All relief given by consideration that the plaintiff would at the reguardians under this section shall be paid out of quest of the defendant sign an agreement, whereby their common fund.” According to the true con the plaintiff agreed to let, and the defendant to struction of this enactment, it is obligatory on take, a messuage and premises, with the use of the the guardians, where relief is granted for the furniture, &c., on the premises, on the terms purpose of education, to pay the money to therein specified, the defendant promised, within the persons relieved, and the practice which a reasonable time after the signature of the said has been adopted of paying the money direct agreement, to do certain works and repairs, and to the master or mistress of the school | send in such additional furniture as might be which the children attend is illegal. The uther necessary for the completing of the furnishing of children bring the money for the fees with them the house and its convenient occupation by the to the school, and, consequently, when the children plaintiff. of parents who are in receipt of relief come to Averment: That relying upon the said promise, school without the money, they become known defendant did sign the agreement, and that all among their schoolfellows as pauper children. conditions, &c., were performed, &c., yet the de There is no suggestion in this case of any appre: fendant did not, within a reasonable time or at all, Q. B.]
JEBSEN v. THE EAST AND WEST INDIA Dock COMPANY.
execute the works and repairs or send in the fur- the rent, and to this agreement the plaintiff is niture, whereby plaintiff was put to expense and | attempting to add an additional term. The cases suffered damage.
which have been cited are distinguishable, though The second count is set out in the report of the one of them appears to be rather an extreme deciargament on demurrer, 32 L. T. Rep. N. S. 25. sion. The decision in this case on demurrer does
The pleas were : First, non assumpsit; secondly, not affect the present question. that a reasonable time had not elapsed; thirdly, FIELD, J.--I am of the same opinion. denial of breaches.
BLACKBURN, J.-I think the ruling was right. It At the trial before Blackburn, J., at the London is a most important rule that where there is a Sittings after Hilary Term, it was proved that the contract in writing it should not be added to if the defendant had let the house and furniture to the written contract is intended to be the record of all plaintiff by a written agreement dated the 24th the terms agreed upon between the parties; where March 1873, and evidence was tendered of a pro there is a collateral contract the written contract mise alleged to have been made by the defendant does not contain the whole of the terms. As to before that date to put more furniture into the the cases which hare been cited, I should decide house, and to change some of that which was Morgan v. Griffith the same way; the decision in already in it. It was also alleged that there was a | Mann v. Nunn I am inclined to think wrong, but promise to the same effect made after the date of it is unnecessary to say how that may be. Here the written agreement.
the lease expresses the whole of the terms; the The learned judge rejected evidence of the defendant agrees to let, and the plaintiff to take, earlier promise, and ruled that the agreement was the house and furniture at a certain rent; there is conclusive as to all that referred to taking the said to have been an arrangement made beforehouse and the furniture, and that the plaintiff | hand during the negotiation, that the defendant conld not recover upon any prior agreement made should let the plaintiff have more furniture for during the negotiation and not put into the the same rent; how is this collateral ? I cannot written record of the agreement, and refused leave perceive that it is. At the trial I refused leave to to more. He also held, that if the above ruling move, and I have no doubt that the same reasons was right, the plaintiff could not show a fresh are sufficient for refusing a rule now. consideration, and ruled that there was no subse
Rule refused. quent consideration, and nonsuited the plaintiff. Attorney for the plaintiff, John Pullen.
Hollings moved for a rule calling on the defendant to show cause why the nonsuit should not be
COURT OF COMMON PLIAS. set aside and a new trial bad, on the ground of
Reported by ETHERINGTOX Smri and J. M. LELY, E£qrs. misdirection and improper rejection of evidence.
Barristers-at-Law. The verbal agreement to put in more furniture, which was made before the written agreement of
Jan. 16 and Feb. 25. the 24th March, was an agreement on a distinct Jebsex v. The East and West India Dock collateral matter, and therefore ought to have been
CoMPANY. admitted in evidence : Morgan v. Griffith, 23 L. T. Rep. N. S. 783 ; L. Rep.
Action by partners for breach of contract-Gain of 6 Ex. 70;
individual partners arising from the breachMann v. Nunn, 30 L. T. Rep. N. S. 526 ; 43 L. J. 241, | What may be taken into account in assessing C. P.
damages- Part owners of ships. The decision in this same case on demurrer is In order to entitle a defendant in an action brought conclusive in favour of the plaintiff : (Angell v. against him by partners for a breach of contract Duke, 32 L. T. Rep. N. S. 25; 23 W. R. 307.) causing damage to the partnership, to take into [BLACKBURN, J.---That turns on the question of an account a benefit accruing to any of the plaintiffs interest in land.] It shows the verbal agreement from such breach, for the purpose of reducing the to be collateral.
damages, such benefit must be a joint benefit COCKBCRX, C.J.-I am of opinion that there accruing to the partnership, and it is immaterial should be no rule. To allow the plaintiff to recover for the assessment of damages whether or no in this action would be to allow a parol agreement individual plaintiffs have actually benefited in to corflict with a written agreement afterwards other ways from the very default of the defendants entered into. I agree with the cases which have for which as a partnership they are suing. been cited to this extent, that there may be in TVhere partnerships sue for breach of contract, stances of collateral parol agreements which would the damages must be confined to those sustuined be admissible, but this is not the case here: by the partnership ; and part owners of ships something passes between the parties during the are for the purposes of such an action in the course of the negotiations, but afterwards the same position as partners. plaintiff enters into a written agreement to take The plaintiffs, as owners of an emigrant ship, were the house and the furniture in the house, which is unable to carry their destined passengers through specified. Having once executed that, without the defendants' default. Many of the emigrants making the terms of the alleged parol agreement 80 lost to the plaintiffs' ship went consequently by a part of it, he cannot afterwards set up the parol another ship, of which also some of the plaintiff's agreement.
were part owners. MELLOR, J.-I am of the same opinion. There Held, that the true mode of assessing the damages is one contract; the house is the same, the rent to which the plaintiffs were entitled was to estithe same, and the general terms the same. During mate the actual loss to them as owners of the the negotiations it appears to have been suggested ship delayed by the defendants' breacle of conthat some more furniture should be put in, but tract, and wholly to disregard any gain which afterwards a written contract is made affecting those of them who were part owners of the second the house, affecting the furniture, and affecting | ship had in consequence made.