The Express.
London, England, 1848-02-26 00:00:00

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he are was raised was contained in the report is the Ex-
press of Thursday. On that day, Kr. Bothell was belied in
reply to the arguments urged on behalf of the respondents.
Ile contented that the answer of the respondents, 'peeing
to the terms on which-theuppellants offered the 2,000 tons
of pig icon, ought to have been sent by the very next post,
whereas it did not reach the appellants until the third day.
Thep:therefore concluded that their offer was not accepted,
mad they were aedliberty to dispose of the iron to other
persona. The contract was not complete till the answer was
received. But supposing the house should think the contract
was complete and ought to be enforced, then he submitted
that the court below had done wrong in not confining the
assessing of the damages to the price of the iron at the period
when the contract was made, instead of allowing the jury to
go into calculations of a more general kind—The Lord
Chancellor gave judgment. By the jr,neral usage of trade,
as ell as by the particular stipulations in the letter of the
appellants, the answer to their offer was to be made by re-
turn of post. It was so made ; for the respondents sent a
letter which was by some mistake dated on the 31st of Ja-
nuary, but which was proved to have been written and
posted on the 30th of January, and which arrived at Glas
gow by the post of the 31st of Jesuitry. It did not, indeed,
arrive In the usual time ; it was delayed for some hours ;
but it was delayed through accidental circumstacees, which
prevented the ordinary delivery of the letters. That delay
was no (Imhof the respondents,put was wholly attributable to
the yoet-odlee. The respondenteshad done all that it wee their
duty to, and having dens that, the contract became a binding
contract on both parties. That was the case quite as much
• ander the authorities in the law of Scotland as under those
in the lawrof England. As to the question of damages,
there was no rulecit law to bind juries to confine themselves
/the price of the goods on the day that the contract was
made or broken, oarless there any which compelled a party
whose contract waithroken instantly to go into the market
sad supple himself with goods, with which the other party
ought to have furnished him. A r unabl
eeas time must be
allowed for that purpose, and a reasonable calculation of
damages ought to be made. On both groundrbis lordship
thght that the judgment ought tokii affirmed, with costs.
—ilia lordship moved accordingly, and the judgment was
amid.

JUDICIAL COMMITTEE
L. OF THE PRIVY
COUNCI
Prone t lord Langdale, Lord Campbell, the Chancellor of the
Duchy of Osenwall, the lades of the Admiralty Court.
Unites& UP AVITISALAIIIA v. BILIVILLAIs
--JUDOMBNT.—The Chancellor of the Duchy of Corn.
wall : This/cause comes before us on an appeal from the
judgment ofabeeSupreme Court of New South
the respondents.
in an
action brouglit'by the appellants against
The appellants are a corporation, and the respondents a
;olat-inockatompany, carrying on the business of bankers at
Sydney. In thetbeginning of 1843 the company was in great
datfieultiee--alargyportionAof its liabilities had arisen from
teannotions with- the firm of Hughes and Hooking,. In
Febraary, 1843, the, director, applied to the other banks at
Sydney, among the net to'the appellants fey assistance. Oa
this occasiemi they prepared a statement, the effect of which
was that the company 'mold require to. meet their eircula-
atm and el-posiu, 113,6481. ; for their acceptances on T
the enema of Bogen and lloskirgs. and J.
Hughes, 60,28.51. ; fir Hughes alai Hooking,' own
acceptances, for the due payment of a motion of
wbieh —the company hid granted litt
of guarantee,
72,"_871. ; making a total of 266,2201. lu reduction of this
gam it was estimated there would be recovered 145,0001.
in twelveamontbs. Besides providing for those liabilities the
directors were desirous of continuing to pay a dividend of
8 per cent. on their capital Wilts shareholders of the n
•a cond-
cern. On this statement it appears to be considered a-
nun of 200,0001. or 250,0001. would he necessary, and as
this was a lanret sum than the appellants were willing to
supply, it was agreed that the app. boots' bank should apply
to the Union Bank to join them in the tnnsactien. With a
view to this traneection a inrmoraimmlum was drawn up, at
which we hate looked, not to construe the age, (nent, butes
part of the tee gestaa and we feel bound to say neither in
the documents nor in any other part of the evidence, du we
discover any trace of miarepresentatlon, or any con-
cealment of the facts, or any ground the `directors
time
for supposine that the appellants or the directors
of the company acted otheame than with perfect goo t faith
towards the shareholders. 'The directors may have entered
into stipulations contrary to the deed under which they
acted. We see no reason to doubt they did what they con-
sidered beet for the concern. The agreement that was
finally made between the appellants and respondents is con-
tained in two letters, dated the 27th of Feb.', 1843, and the
7th of March, 1843. The letter of the 27th of Feb. is in these
terms—it is addressed by Mr. hl'Kenzie, the cashier of the
bank of Australia, to the cashier of the bank of Australasia
"Sir—ln reference to the communications which have taker,
place between the directors and cashier of this insti•u:ion
sad the bask of Australasia, relative to the in•
tended alte ration in the business of this bas k,
and the assistance it will r. quire for the pur-
pose of meeting its immediate liabilities, I am
directed by the board to corn cuniate to you their re-
solution of calling a meeting of the proprietors for the 113th
of Match neat, for the purpose of making the necessary ar-
rangements for terminating the businem of this bank, and
converting it into a lean company, with a view to the secu-
rity of its outstanding debts, and to enable the hank in the
mean time to liquidate its engagements without 'newly'.
cisme° to the public. lam desired by the directors to ac
knowledge aid thank you for your tender of assistance, and
to aresept of the advance of the Bank of Awitraluia oi a sum
not ex ceeding 140,0001., in such sums as may from time to
time be required, on the security of the acceptances
of this bank, at three months' date, at an in-
terest of 10 per cent. per annum, and subject to
the following conditions First, that on or before
the 31st of March next this bank shall cease to be a
bank of issue, and in winding up its affairs, all future pay-
ments shall beta made through the Bank of Australasia.
Second, that n' bills shall be discounted by the bank after
that date, except such as may be required to renew bills
now held by the bank. Third, that no transfer el shares or
stock shell be made without the consent of the Bank of Aus-
tralian. Fourth, that the liabilities incurred by this bank
for Mean. Hughes and Bookings, and for Mr. 3. I'.
Hughes, be covered by the execution by them of such
trusts to the Bank of Australia as may be necesrary to place
the control of the affairs of the firm and ef Mr..' T.
Hughes under this hank to meet their existing obliga-
tions, and to prevent them from contracting new
noise
without the consent of this bank, and that the whole of their
future busini as during the continuance of the trusts he',
transacted through the Bank of Australasia. Fifth, that the
Bank of Australia shall not incur new liabilities without
the consent of the Bank of Australasia." Then there is the
answer of the 2nd of Msach,lB43: " Sir,-1 beg to acknow-
ledge the receipt this morning of your letter of the 27th
ult., communicating the resolution of your hoard to call a
meeting of proprietors for the 16th instant, for the purpose
of making arrangements to terminate the transaction of
business by your establishment as a bank, and t eit
into loan company, and intimating the intentioo no of your
directors to avail themselves of the assistance of the Bank of
Australasia, in liquid dating their current engagements. to an
extent not exceeding 150,0001., in such sums as may from
time to time be required on the security of the acceptances
of the Bank of Australasia, at three monthe date, at an in-
terest of 10 per cent. per annum, and subject to the claditions
therein detailed; and in reply I beg to state that this esta-
blishment is prepared to meet the requisitions of the Bank
of Australia to the extent and on the conditions which you
have specified." The 150,0001. was advanced by the appel-
lants on the footing of this letter, and according to the orders
of the directors of the company, in the months of March and
April, 1843, and bills or notes payable atthree months appear
to have been given for the amount. When these
securities beanie due they were renewed for another period
of three months. In October, 1843, it was thouglmt necessary
to apply to the banks which had rendered the required as-
sistance, among the rest to the appellants, for tee further
advance of 10,0001., with an indulgence of twi lea month.%
fur the payment of the advances which they had already
made. After some negotiations the appellants consented to
allow a further term of twelve months, and on the 30th of
October, P 43, the existing securities held by the appellant',
were cancelled, hut in lieu of them a promissory note was
given for 154,0001., signed by Mr. Norton, the chairman of
On company. It is on this note that the action in this case
is brought. Between the commencement of this transaction,
in Feb., 1843, and Oct , 1814, several met tines were held ,-f
the shareholders of the company. We have no very distinct
evidence of what took place at some of those meeting", hut
a letter from Mr. M'Arthur, the then manager of the com-
pany, dated the 18th of November, 1843, *peaks of " the
investigations which have taken place at two mettima of the
proprietors of this bank, held in pursuance of time pledge
contained in our letter to you of the 27th of February last,
and the resolutions of the proprietors iherrupen." We
think the necessary inference from this pauage is that at
those meetings the arrangements intended to be made with
the appellants were communicated to the shareholders, and
no steps to pre-vent their completion apaear to have
been taken either by any single shareholder, by any
legal proceeding, or by any notice or eimnimunication
either to the director* or the shareholdi ta. We have
evidence of what passed at two subsequent meet-
ings, one in the month of September, 1843, atm the other in
the month of January, 1841, and in the accounts submitted
at the former are included acceptances on account of the
appellants' bulk for 153,357/. At tee latter of these meet-
ings a statement was made of the arrangement with the
bank in the preceding October, and among the other lia-
bilities of the company the promise ry note for 154.0001. in
favour of the appellants is mentioned. At each of those
meetings the directors proposed a call to meet the 'listing
liabilities of the company, which included the debt of the
appellants' bank, and the report of the directors was sdapted.
On the 6th of August, 1844, a resolution was passed by
the shareholders repudiating the debt. Payment of the rate
was demanded in Oct., 1814, and was refused ; and on the
26th of Nov. the present action was commenced It came
en for trial on the 17th of March, 1844 ; suet the jury tieing
tumble to agree were discharged, according to the provisions
of the colonial act. It was afterwards tried at bar. The
trial began on the 23rd of June and terminated otn time 4th at
Atigust, when, alter much discussion, the vi relict *a= found
for the plaintiffs, subject to the opinion of the court whether,
on the facts proved, the plaintiffs were entitled to neve ar—
the whole to be without prejudice to either party's
tight to appeal: and of the three judges present, one,
the chief justice, was of opinion in favour of the
plaintiffs--the two other judges were of a different
opinion, and a verdict and judgment accordinale was
intered for the defendants the respondents. From this
judgment the present appeal .is brought. The appellants
have a clear prima facie case, the now is siancl on behalf
of the company by the officer who had authority to 11101
sad aches on their behalf, and the amount of the promissory
BOAS was advanced to persons professing to borrow and re.
Dein it for the benefit of the company. The defence is the
potions borrowing hail no authority to borrow m icy on he-
hall of the company under any cirenentancee, but at all
events not for the purpowst appearing in this can, sad the

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