V.C. W.] LAIRD V. THE BIRKENHEAD RAILWAY COMPANY. citor for the plaintiffs. That being so, he (the V.C.) | was satisfied that the suit was properly instituted, and that the plaintiffs' solicitor was fully entitled to have his name on the record. The latter part of the order would therefore be discharged. V. C. WOOD'S COURT. Nov. 22 and 23. LAIRD . THE BIRKENHEAD RAILWAY COMPANY. User. By an agreement between A. and a railway company, a Held, that the railway company had acquiesced in this [V.C. W. To this a general demurrer had been filed. man of the company, stating that the company agreed to everything but the clause which provided that the Board of Trade was to be referred to in case of any dispute between the plaintiff and the company. On the 25th March the memorandum was returned to the plaintiff, with a letter from Mr. Mason, stating that if this clause (numbered 5) were omitted, he might consider the others as being agreed to. The plaintiff, upon the receipt of these letters, assented to the omission of the clause, and informed Mason of such assent; that thereupon, and upon the faith of a final agreement having been thereby constituted, arrangements had been made with Mason, under which the plaintiff's goods had been carried from the Monk's-ferry station, through the tunnel into his yard, from the month of March 1857 until Oct. 1859, the plaintiff having made considerable payments to the company on account of such carriage. Much correspondence took place subsequently between the solicitors of the plaintiff and defendants as to the draft agreement, the company insisting that the draft of Feb., and not the memorandum of March 1857, formed the basis of the proposed agreement. On the 25th Oct. 1859 the plaintiff received a notice from the secretary of the company, "that every agreement or arrangement as to the passage of goods from the yard to the passenger station at Monk's-ferry, if any agreement or arrangement binding upon the company ever existed, is hereby terminated." After the sending of this notice the company caused the rails to be removed, and stopped up the passage by the tunnel. The plainThe bill alleged that by a memorandum of agree- tiff now filed his bill for the specific performance of the ment, dated the 7th Nov. 1857, the plaintiff was memorandum of agreement of March 1857; for an allowed by the defendants, a railway company, a direct injunction to restrain the company from further obcommunication between his shipbuilding yard at Bir-structing the passage by the tunnel; and for the conkenhead and a station on the defendants' line called sequential directions. the Rock-ferry station, upon certain conditions. That proposals had been before made by the plaintiff to the defendants in 1855 for the purpose of obtaining a communication by railway between his yard and this station by means of a tunnel under a public road called the Monk's-ferry-road. The plaintiff stated his willingness to construct the tunnel and lay down the rails at his own expense, the terms of which were to be arranged between him and the directors; that an interview took place between the parties on the 25th Aug. 1855, at which the directors expressed their assent and agreement generally to the plaintiff's project; that the plans were submitted to Sir Hugh Cairns, Q. C. and C. Parke for the bill.the plaintiff's engineers, who had suggested some There was a concluded agreement between the parties, alterations, and in other respects approved of these as averred by the bill. The great expense of outlay plans; that these alterations so pointed out were which the plaintiff had incurred was incurred with the made and the tunnel completed early in 1857, with sanction and approbation of the directors of the comthe full sanction and approbation of the railway company, and partly according to their own suggestions. that on the 2nd Feb. 1857 the plaintiff received a letter from the secretary to the company, stating on behalf of the directors that the communication between the plaintiff's shipping-yard and the station must not be used "until a definite understanding was come to respecting it, which will in a few days be submitted to you for your signature." A draft of the agreement was shortly afterwards prepared by the company's solicitors, and forwarded to the plaintiff. This agreement was, as to several particulars, inconsistent and at variance with, the understanding which had Nov. 23. The VICE-CHANCELLOR said that, to been come to, between the plaintiff and the railway enable him to give a fitting consideration to this case, company, and contained a clause enabling the company, it would be necessary to divide it into three successive upon giving three months' notice, to remove the rails stages. First, to consider how the case stood after and block up the communication from the plaintiff's the work was concluded, which effected the junction yard through the tunnel to the station. After some of the plaintiff's premises with the defendants' railcorrespondence, the terms of an agreement were way, and after the notice by the company that he was sketched out by a Mr. Mason, the company's general not to use that work so constructed until a definite manager, and handed to the plaintiff at an interview understanding was come to. Secondly, to consider the which was had between them. The plaintiff embodied these terms in a more formal memorandum, which was sent to Mason on the 19th March 1857. On the 23rd the plaintiff received in reply a letter from the chair pany; Rolt, Q.C. and Bagshawe, jun. for the demurrer.— The company was a corporate body, and there was no binding agreement upon them by which it could be inferred that specific performance ought to be decreed. There was merely negotiation. There was no part performance. They cited Kirk v. Bromley Union, 2 Phill. 640; Ernest v. Nicholls, 6 H. L. Čas. 401; Lindsey v. Great Northern Railway Company, 10 Hare, 664; Ridgway v. Wharton, 6 H. of L. Cases, 262; Barkworth v. Young, 4 Drew. 10; Bainbridge v. Moss, 3 Jur. N.S. 58. This was sufficient part performance. The contract, although not under seal, was binding on the company: Reuter v. Electric Telegraph Company, 2 Jur. N. S. 1245; Evans v. Evans, 18 Jur. 666; Prince of Wales Company v. Harding, 4 Jur. N. S. 851; Liggins v. Judge, 7 Bing. 682; Sutherland v. Briggs, 1 Hare, 26. And they cited several sections from the Companies Clauses Act, and the Railway Clauses Act, 8 & 9 Vict. c. 16, and 8 & 9 Vict. c. 20. Rolt in reply. stage between that period and the time when the use of the railway was actually prohibited. And thirdly, to consider the effect that the continued user for a considerable time ought to have upon the whole con V.C. W.] [V C. W. thought proper over the traffic. Even if all this were independent of Mason's letter, and if there had been no arrangement as to the tolls, but the simple fact of the user for two years and a half, without any difficulty raised by the defendants, who had allowed the plaintiff to expend his money, the contract was fairly made out and ought to be performed. The proposition the company to take up the rails after they had allowed the plaintiff to expend 1200l. in forming this junction, and allowed the junction to be used for two years and a half, was most unreasonable. In this respect the case was almost identical with Powell v. Thomas. Demurrer overruled. Dec. 10 and 12. Re FORSTER (a Solicitor), ex parte WALKER. Solicitor's bill-Taxation-Undue pressure-Time for taxation. sideration of the case. The case was very plain upon allowing the expense to be incurred, but would rather the face of the bill; and it might be here observed, be for as long a period as the plaintiff continued to be that he entirely discarded all consideration of the owner of the yard. Could it be supposed that he Railway Clauses Act, which could not be imported was spending his money on the chance of being turned into the bill as it now stood. The first paragraph of out at the pleasure of the company? The plaintiff very the bill that was important was that in which it was naturally considered the agreement of Feb. 1857, stated that the plaintiff, being desirous in Aug. 1855 reserving a power to the company of determining the of having direct and private communication between right of user upon three months' notice, as most his yard and Monk's-ferry station, by means unreasonable. Although he could not assume that of a tunnel under the Monk's-ferry road, wrote to the letter of the chairman of the 25th March 1857 the directors on the subject. The work, which was to was sanctioned by the directors, yet the subsequent be formed at the plaintiff's own cost, would be of neces- user thereupon, and upon the footing of a final agreesity expensive, there being an intervening road upon an ment having been thereby constituted, was most imembankment to be tunnelled through. An interview portant. For two years and a half the plaintiff had took place between the parties on the 25th Aug., and been allowed to use the railway, the questions as to he agreed, at this stage the case could not be pressed the tolls and control over the traffic having been higher than this: that there was an agreement gene- amply settled during that period. He had incurred rally for the conveyance of plaintiff's goods, by means serious expense on the faith of being allowed to use of a tunnel, subject to the terms and details being the line. No difficulty had been found to occur as to arranged. No actual steps were taken until Aug. the terms of the user. The railway company had re1856, when drawings of the proposed work were sub-ceived the tolls and exercised such control as they mitted by the plaintiff to the engineer of the company, some alterations were suggested in the plans, and the work was carried on with the knowledge and in the presence of the company's engineer. Without stopping to consider whether any authority in writing was wanted, one may certainly say that when works of this kind are commenced at a place where the company and their servants are always present, with the introduction through the medium of a tunnel of a branch railway into their own yard, he must in such a case consider that, for all the purposes of knowledge, although they are a corporate body, yet they may be bound (and there are numerous authorities on that subject) with acquiescence, as far as any acquiescence can be inferred from transactions taking place openly on their premises, just as much as any individual may be bound, whatever may be the effect of such acquiescence. In the face, therefore, of the company, who must be treated as an individual in this respect, under their very eyes the plaintiff proceeded to expend his money in the construction of the tunnel. His Honour then referred to the letter of the directors of the 2nd Feb. forbidding the use of the railway until a definite understanding was come to respecting it. What were the rights of the parties then? No doubt the defendants were perfectly justified in objecting to any user until some arrangement had been come to about the terms; but as to their competency to say that the rails must be taken up unless the plaintiff acceded to such terms as they thought fit, he had very great doubt: (Powell v. Thomas, 6 Hare, 300.) Could the defendant, after allowing the plaintiff to expend his money for the sole purpose of forming this junction, after allowing the works to be completed upon the faith unquestionably of the thing being carried out upon a reasonable arrangement, could they break up the matter and say that the The solicitor had taken securities from his clientterms were to be their own, that they were masters of amongst others, one upon some furniture and effects by the position, and that the whole expense incurred by a bill of sale, with a clause for immediate payment of the plaintiff under their superintendence was to go for debt on demand. The bill of costs had been delivered nothing, unless he consented to those terms? If the a month and more, and a correspondence had been case had stopped there, looking at the nature of the carried on between a new solicitor on the part of the transaction, and what was to be done to arrange rea-petitioner and his former solicitor, which by the latter sonable terms as to what should be paid for tolls, and as to the control and superintendence of the railway, it did appear that the court would have found its way to the completion of the arrangement. No doubt the principal difficulty was as to tolls. As to the duration of the term he saw no such difficulty as had been suggested on behalf of the defendants. It would be inferred from the nature of the transaction, and after such an expense, that it was not a work which was to be terminated at three months' notice. Up to this time it might be conceded that there had been no settlement as to tolls, or the period of user, but the right of user ould not be determinable at the option of the party If a client to whom a solicitor has delivered his bill of costs delays to obtain an order for taxation for two months, it will be considered too late to obtain a taxation of the items, although the amount may have been paid. The number of folios in a deed or other document should be stated in a solicitor's bill of costs. This was a petition for taxation after payment of a solicitor's bill of costs, on the ground of pressure and gross overcharge. The petition specified, at considerable length, items of alleged overcharge; and, among others, a charge of 51. 9s. 4d. for travelling and other expenses "between Cambridge and Brighton, in addition to the charge of 31. 3s. per diem." There were also allegations of overcharge in drawing and in the mode of reckoning the lengths of the drafts by sheets and skins, and not by folios. was considered as an attempt merely to obtain time; he consequently wrote to say that, unless the drafts of the transfer of the securities which he held from his former client were not sent to him for perusal by a given time, he should put in an execution on the furniture and effects. This requisition not having been complied with, an execution was issued at the time pointed out, and it was whilst the officer was in possession that the amount of the bills of costs was paid to avoid a sale. W. D. Lewis, Q.C., in support of the petition, having stated that many items of the bills of costs besides those set out in the petition were objectionable, The VICE-CHANCELLOR held that they might be referred to in argument, as elucidating the general charges of undue pressure and overcharge stated in the petition. [Q. B. Rolt, Q.C. interposed a preliminary objection, that | twelve, and observed that he regretted that a charge of those items could not be brought into the discussion; this nature, which was not right in any sense, should. but have been made. Though it was impossible to approve charges of this description, yet looking to the nature of the case, he thought that he ought not to open a fresh door to applications of this kind, which introduced anything but a favourable feeling between solicitor and client, especially when made at the suggestion of a hostile solicitor. The petition would, therefore, be dismissed, but without costs. Order accordingly. W. D. Lewis Q.C. and Roxburgh, for the petition, contended that the circumstances under which the amount of the bills had been paid of themselves showed that the petitioner had been submitted to undue pressure, and they went into a lengthened analysis of the items of the bills of costs, to show gross overcharge. They cited Howell v. Edmunds, 4 Russ. 245; Horlock v. Smith, 2 Myl. & Cr. 512. They also complained that it was impossible to know from some of the items in the bills whether the charge was just, as the lengths of certain deeds and drafts were not stated by "folios," but simply by "skins." Rolt, Q.C. and Cole, contra, were directed to confine themselves to the question of overcharge, as the V. C. thought no case of undue pressure had been made out. They contended that the items were fair and reasonable, and if not, the client had had ample time to obtain an order for taxation before the payment of the amount of the bills of costs; that they amounted altogether to more than 500l., and that items amounting together to no more than 10%. could not, by any ingenuity, be held to be objectionable. They cited Re Strike, 11 Beav. 304; Re Barrow, 17 Beav. 547; Re Hubbard, 15 Beav. 251, and other cases. W. D. Lewis in reply. Common Law Courts. COURT OF QUEEN'S BENCH. Reported by JOHN THOMPSON, T. W. SAUNDERS, and C. J. B. HERTSLET, Esqrs., Barristers-at-Law. Nov. 10, 1858, and Jan. 29, 1859. Cargo of wheat-Variance between the quantity sent The plaintiff sold a cargo of wheat which was to be between 1800 and 2200 grs. of 492 lbs. the sack, at the price of 228. per qr. free on board at Taganrog, to any safe port in the United Kingdom, the wheat to be shipped between certain dates; the measure, for the sake of invoice, to be calculated at the rate of 100 chetworts, equal to 72 quarters; the buyers to pay for any excess of weight, unless it be the result of damage or heating; payment, cash in London, in exchange for the usual shipping documents. shipping documents showed a quantity between 1800 and 2200 quarters, but the quantity actually shipped was less than the 1800 quarters: The Held, that the purchaser was not bound to accept the wheat. This was a demurrer to a plea. Blackburn appeared for the plaintiff. Mellish for the defendant. The facts and arguments sufficiently appear from the following judgment: The VICE-CHANCELLOR said that no case had been made of pressure on the part of the solicitor, and he had not thought it necessary to hear counsel upon this point. The second and graver question was as to overcharge. Charges for drawing had been made in many instances by skins and sheets, without stating the number of folios contained. It would have been much better that the precise number of folios should have been stated. If a solicitor was entitled to put six folios in a sheet, and not less, then it would follow that Lord CAMPBELL, C. J.-We are of opinion that the deten sheets ought not to contain less than sixty folios. fendants are entitled to our judgment. The question At the same time cases of this description were not to be is, whether upon the facts stated and admitted in the encouraged. The court, to the exclusion of other pleadings, Dart, the purchaser, broke the contract, and business, had been engaged in long discussions as to was liable to be sued upon it by refusing to accept and particular items, and the inconvenience was all the pay for the wheat. This is not, as was the case in more serious when this might have been done two Lovas v. Bingham, 2 E. & B. 836, the sale of a spemonths before payment of the bill without putting the cific cargo afloat in a particular ship, but the sale of court to all this trouble of sifting the items. The question a cargo to be shipped in any ship the seller might select was not whether something might not be taxed off the of the class specified, and the cargo, although not of an bill, but whether there was such a gross amount of absolutely defined amount, was to be between 1800 qrs. overcharge as to amount to what was considered to be and 2200 qrs. of 492 lbs. the sack. We think the frand. He should put wholly aside the items as to agreement was that it should not exceed travelling expenses complained of. The bill was for that quantity. If the cargo offered exceeded that two months in the hands of the petitioner's present quantity, or if accepted the seller would have had solicitor-with this item before him, and, with full a demand upon the purchaser for payment of more notice of it, and being perfectly aware of the distance than 2200 quarters, we think he was not bound to between Brighton and Cambridge, he chose to take no accept it; he did not want a larger quantity. On the notice of it at that time. The other items complained tender to him of the cargo by delivering the usual of had been selected in a very haphazard mode. One shipping documents, he could not have accepted the of these items included a sum of 251., which was quantity he agreed to purchase, and reject the excess. paid for taxed costs in another suit. Another was a It seems to us quite clear that he would have been charge of 41. for four skins, which proved to contain only liable to pay for the excess, if there had been any fifty-five folios. But a competent authority upon the excess, there being no ground here for saying that the subject (Mr. Scott, in his Book of Costs) had cargo was to be taken at a fixed sum for better or allowed the same charge of 1. per skin. There worse, and there being an express stipulation that if were other items which arose in an action against the quantity delivered by measurement should exceed Lord Ernest Vano Tempest, for the purpose of the estimated weight, unless from the result of seaproving that a racehorse was a necessary for a minor, an officer in a light cavalry regiment. One might expect in such an action that the solicitor would receive payment on a liberal scale in the event of success; and it was only in this case that there was any material overcharge. His Honour adverted to an item of seventeen sheets charged when there had been only damage or heating, the purchaser was to pay for the excess thereupon. If there had actually been 2215. quarters of wheat on board the ship, as the bill of lading indicated, it seems clear Dart would not have been liable for refusing to accept and pay for it. The plaintiff's rely upon the invoice, and the fact that upon the delivery of the cargo it did not consist of HALFHEAD V. SHEPPARD.-STRAY v. RUSSELL. Q. B.] Judgment for the defendant. [Q. B. more than 2200 quarters; but we are of opinion that | ment to her among the children. This power accrued the plaintiffs are not at liberty to make out an in- immediately at the death of the testator, and under voice on any other principle than that agreed upon, such a limitation it might well be supposed, by implinamely, the measure for the sake of invoice to be cal-cation, the children took a remainder as tenants in comculated at the rate of 100 chetworts, equal to 72 mon in fee, subject to be devested by an exercise of the quarters, the sellers to guarantee delivery of the invoice power of appointment; but in the case at bar there was weight. They were bound to make out the invoice at no power of appointment till the death of the wife, and in the rate of 72 quarters for 100 chetworts. Then, if her lifetime all the children died. The remainder in the actual shipping documents tendered represented fee therefore remained in James the son, and passed by the cargo to consist of more than 2200 quarters, we his will, so that, although the plaintiff is now the heirthink that the purchaser was justified in refusing to at-law of the testator, he has no title to any part of accept it, and that he cannot be rendered liable by the lands for which the ejectments were brought. evidence that in truth there was on board the ship no Therefore, we give judgment for the defendant. excess beyond the quantity which he had agreed to purchase. We must remember that the ship, with the cargo on board, was to go to any safe port in the United Kingdom, calling for orders, and that, according to the usage of the trade, the cargo, while afloat, in all probability would be resold by Dart, and might pass through the hands of several subsequent purchasers. He ought to have been in a situation to represent that the cargo consisted of quarters according to the number of chetworts in the bill of lading, to raise the 72 quarters to 100 chetworts. But he could not have accepted and provisionally paid for the cargo, without being involved in great perplexity as to how he should afterwards dispose of it, nor without danger of litigation with the plaintiffs as vendors, and with those who might become purchasers under him. Upon the whole, we think that the plaintiffs were not ready and willing to perform their part of the contract, and that there ought to be Judgment for the defendant. Tuesday, May 10. HALFHEAD v. SHEPPARD AND OTHERS. Devise-Gift to children-Power of appointment. A. by his will devised his estate to his wife for life, and directed that after her death his brother (in case he should survive his wife) should share his estate amongst his children as they severally arrived at twenty-one years of age, and that (in case his wife should survive his said brother, she should, by her will, devise his estate amongst his said children in the fairest way she could. A. died, and his widow survived all the children: Held, that, upon the death of A. the testator, the remainder, subject to the life-estate of the widow, vested in the heir-at-law, liable to be devested if the children had survived the widow. This was an action of ejectment, turned into a special case for the opinion of the court. May 6 and June 14. STRAY v. RUSSELL. Shares-Purchase of-Practice of the Stock Exchange. The plaintiff authorised certain brokers upon the Stock Exchange to purchase for him, to be paid for on the account day, twenty shures in the Royal British Bank. They accordingly bought such shares of the defendant. Before the account day arrived the Royal British Bank stopped payment, whereupon the plaintiff gave notice to his brokers that he would not take the shares. The defendant himself had con tracted with other stockbrokers for the purchase of twenty shares, and these brokers procured transfers of the shares and the certificates, which on the account day the defendant tendered to the plaintiff's brokers, who paid for them and received them, and then tendered them to the plaintiff, who, under pressure of an action, received and paid for them. By the rules of the Royal British Bank, proprietors of shares might, with the consent of the directors, transfer their shares, and the broker of one of the sellers of the shares requested such consent, which the directors refused to give: Held, that under these circumstances the plaintiff was not entitled to bring an action against the defendant for the price of the shares. M. Smith, Q.C. and J. Brown appeared for the plaintiff. Atherton Q.C. and Aston appeared for the defendant. The facts and arguments sufficiently appear from the following judgments. Lord CAMPBELL, C.J.-This case was argued last term before my brothers Erle, Crompton, Hill and myself. We will now give judgment. We are all of opinion that the judgment ought to be for the defendant; but there is a slight difference between us as to the reasons, and the case being one of considerable importance, we have thought it better to give our The facts and arguments sufficiently appear from opinions seriatim. The plaintiff first contends that he the following judgment. Knowles, Q.C. and Beasley, and Bovill, Q.C. and Couch appeared for the respective parties. Lord CAMPBELL, C.J.-In the case of Halfhead v. Sheppard, and three other ejectments, in all these cases the plaintiff's claim the term on the supposition that an estate of inheritance in the lands devised had vested in both or either of the two younger children of the testator. We are of opinion that no such thing did vest in them or either of them, and all the children of the testator died before any power to appoint in their favour had accrued. At the death of the testator, his wife taking an estate for life, the reversion vested in James, the testator's son, liable to be devested if the children had survived their mother, with a power of appointment to be exercised by Robert, the testator's brother; but, as they all died in the lifetime of the mother, this power of appointment never accrued, and no estate in the devised lands could have vested in the younger children. The cases relied on by the plaintiffs' counsel, Casterton v. Sutherland, 9 Ves. 445, and Morgan v. Surman, 1 Taunt. 288, have no application, for in each of these the testator had devised to his wife for life, with a power of appoint is entitled to recover, under the common counts for money had and received, on the ground of the failure of consideration; he will succeed if he can show that the defendant was bound to see that the transfer of the shares should be registered and completed so as to give the plaintiff a perfect title to the shares; and, further, that he himself has been ready and willing to accept them. If this transaction is to be governed by the same rules as the sale and purchase of an interest in real property, the plaintiff's view of the contract would be correct. To prove that it is, Wilkinson v. Lloyd is relied on as an authority; but although the transaction there was a sale of shares, the shares were of a different nature from those which we have to consider, and the manner in which the business was to be conducted between the vendor and purchaser was entirely different. In Wilkinson v. Lloyd the reasoning was adopted by the court, that the contract amounted to a sale by a partner of his share in the partnership, and that the partnership-deed with regard to which the contract between the parties was entered into, clearly showed that the vendor must effect all that was essen Q. B.] STRAY v. RUSSELL. [Q. B. any tial to the transaction. Upon this ground the court | 15th Sept. were at the risk of the purchaser. There is there held, that the cases applied which have been another ground on which I think the plaintiff is not decided with respect to the obligation of the vendor of entitled to recover. From the evidence it seems quite clear a lease to obtain the landlord's consent to an assign- to me that he was not ready and willing to accept the ment when the lease requires it. Here the purchase of shares. The letters of the 11th and 12th Sept. prove shares in a joint-stock banking company was made at that subsequently to the 28th Aug. he had become the request of the plaintiff by a broker on the Stock fully aware of the insolvent condition of the bank, and Exchange in London, and the contract must be con- that, discovering how unlucky and perilous was the sidered as made with reference to all the established bargain he had made, he was determined by all means, usages of the Stock Exchange. After the repeated fair or foul, to get rid of it. We are told that these decisions upon this subject, Mr. Smith very properly were merely letters to his own broker; and I believe waived the objection made at the trial to the that if he had merely expressed such sentiments in admissibility of the evidence respecting these usages. secresy, or in conversation with a stranger, it would not According to these usages the price of the be sufficient evidence to support the plea that he was shares is payable on the one broker handing over not ready and willing. But these letters were written to the other the transfers and certificates. What does to Taylor and Aston, his brokers, and were acted on the vendor contract to sell and deliver? Genuine and communicated by them to Russell and the parties transfers and certificates, with the interests and rights from whom Russell and his jobber had purchased the which they convey. There might be a condition sub- shares. Taylor and Aston thus addressed him :sequent, imposing upon the vendor the onus of pro-"Mr. Stray will not take any shares in the Royal curing the consent of the directors to the transfer; but British Bank; do not pay any money on his account that would be no evidence of such a condition. In for or in respect of any alleged purchase by him of Taylor v. Stray (which was an action brought against such shares. Mr. Stray is advised he has a good dethe now plaintiff by the broker) it was admitted on all fence to any proceedings that may be instituted against sides that Russell, the now defendant, had done every him in reference to the Royal British Bank shares." thing which entitled him to be paid the price of the Accordingly, Mr. Stray disavowed the payment made shares. Willes, J. there intimates an opinion that it by his brokers to Russell, and only paid them the was not the duty of the broker of the vendor to get amount under a judgment which they obtained against the transfer registered; and I apprehend that this duty him after strenuously resisting the liability in the Common devolved upon the purchaser, though he might have Pleas and in the Ex. Ch. A further objection to this a right to call upon the vendor afterwards to concur in action for money had and received may be, that if the the transfer. But the vendor's subsequent defeasance, plaintiff is now permitted to adopt the payment made, if there were any, would not amount to a total failure according to his orders by Taylor and Aston, so that of consideration, for the purchaser would still have the money paid by him may be considered money paid the transfers and certificates, with the means of by him notwithstanding his disavowal of the payment, completing the title, and of obtaining damages com- and notwithstanding the difficulty of fixing the point mensurate to his loss. From the report of the of time when the promise to repay the money is first decision of the court of error in Taylor v. to be implied, at all events Taylor and Aston must be Stray, to be found in 27 L.J., it would appear that his agents to make the payment, and then it may be the two judges who express an opinion both consider considered a payment by him with knowledge of all that the purchaser had something valuable in the the facts of the case. At the time when the payment transfers and certificates, even after the refusal to was made he had determined that he would not accept register them; and Pollock, C.B. said that what the the shares, and he well knew that they never would be purchaser was to get was not the shares transferred transferred to him. Having thus disposed of the into his own name, but the jus disponendi. For these general count for money had and received, which is reasons, although there had been an absolute refusal on chiefly relied on, I have only to point out two fatal the part of the directors to consent to the transfer, I objections to the plaintiff's right to recover on the should still have been of opinion that it was not a special case: first, that the defendant never entered total failure of consideration, entitling the plaintiff to into the contract he alleged; and secondly, that one of recover back the purchase-money; but drawing an in- the pleas in bar on that count is fully proved. The ference from the evidence, I am inclined to think that special count alleges that the defendant undertook that if the plaintiff had been sincerely desirous of having the twenty shares in the Royal British Bank should the transfer completed, and of incurring a responsi- be transferred to the plaintiff, the breach being that he bility equal to the whole of his fortune, he might have had not caused them to be transferred to the plaintiff'; gratified his wish; for the reluctance of the directors whereas it has been already shown that the defendant to consent to transfers in the insolvent state of the did not enter into any such undertaking, and that he bank probably arose from a desire to prevent substantial performed the promise which he actually did make shareholders from escaping by transferring their shares to when the transfers and certificates were handed over men of straw; and if the plaintiff had shown that he to the plaintiff's agents, on their paying the purchasewas as good a man as Mr. Wm. Rowe and Col. money. Again, in answer to the other allegation of Aitcheson, in whose name the shares stood, I can hardly this special count of the performance by the plaintiff of doubt his request would have been complied with. But all the conditions precedent, the defendant pleads in bar he never executed the transfer deed, without which the a want of readiness and willingness to accept the registration could not take place; and as he might shares, and this plea, I think, is fully proved by the then have insisted on a repudiation, even after his letter to Taylor and Aston before referred to, and by hability to the broker was established, and although he the whole scope of the plaintiff's conduct in the transshould have to pay the price of the shares without re-action, from the time when those letters were written. ceiving anything for their value, he had escaped the peril of being made a contributory. The bankruptcy of the company, after the transfers and certificates had been handed over to the plaintiff's broker and the defendant had received the purchase-money, I clearly think could not work a failure of consideration entitling the plaintiff to recover back the purchase-money; he might still have been entitled to some benefit under the bankruptcy, and at any rate the shares before the The present case resembles very closely the case of Remfrey v. Butler, which was decided by this court on the 26th Jan. 1858, on the same principles, and in which upon an appeal to the Ex. Ch. our decision was affirmed, this court being of opinion that, on the facts of the case, according to the rules of the Stock Exchange, the defendant had not failed on his part in completing the contract. In the present case the conduct of the plaintiff has, I think, been very discreditable, |